All these ways around the situation are irrelevant. At present the industry is working on an unchallenged piece of advice by one barrister accepted by the ORR, it does not mean that that view is the law. There are many in the industry feel this is open to challenge and disagree with her assessment, until this happens I feel the whole situation is in limbo
As someone who studied law at university and who is a wheelchair user, I guess I have a particular reason to engage with this topic.
As
@lincman says, the current situation is curious and has seemingly been brought about by campaigner pressure (my apologies to Doug Paulley -
@kingqueen on these forums - if I have missed an explanation he has posted about any campaign).
The
Public Service Vehicles Access Regulations 2000 ('PSVAR') made in 2000 under enabling powers then found in the Disability Discrimination Act 1995 (now found in the Equality Act 2010 - amongst other things the 2010 Act repeals and reenacts the provisions of former equality legislation including both Disability Discrimination Acts). PSVAR was broadly understood by many stakeholders to exclude Rail Replacement Buses and undoubtedly decisions were made within various parts of DfT, Network Rail and the TOCs on the basis that this was indeed the case. Nothing clearly indicating the opposite was perhaps the case seemed to have happened until close to the final deadline for all PSVs to be PSVAR compliant if used for work in scope of PSVAR (1 January 2020), when in September 2019 ORR obtains and publishes p
rovisional legal advice (a document usually called "an opinion") from
Zoe Leventhal of Matrix Chambers that RRBs are in scope of PSVAR and that only compliant vehicles can be used as RRBs in all but a handful of rather esoteric cases. ORR published a
final version of Ms Leventhal's legal advice on 6 February 2020 which, on a quick comparison, does not differ substantially in its conclusions, though does dispose of some challenges raised to the provisional legal advice by the
responses to the provisional advice.
I can see why some perhaps feel what has happened is a spectacular last minute change based on untested legal advice. As anyone with legal experience will know, an opinion is just that until tested in the courts; Ms Leventhal is a respected 'leading junior' barrister (i.e. amongst the most senior non-QCs) working in (amongst other things) public law and human rights, but she does not claim any specialism in transport law.
It may well be that the opinion is eventually tested in court, especially if the TOCs stand to lose a lot of money by allowing ORR to throw unbudgeted costs onto them.
If there was a clear intention to exempt RRBs from PSVAR and throw the broader requirement to make suitable arrangements for the carriage of passengers with accessibility needs onto the TOCs in the event of inability to convey by rail, one would expect an explicit exemption for RRBs to be written into PSVAR - and, of course, there isn't one, otherwise this situation would not have arisen.
It is possible that the confusion arose in part out of people's assumptions that RRB work was 'private hire' to the TOC and was therefore PSVAR exempt. What many people understood as private hire and what the law actually says is PSVAR exempt private hire are perhaps two different things. Ms Leventhal deals with this quite quickly in paragraph 20 of her opinion and the linked footnote 11. As RRB passengers are not all travelling most or all of the total distance of the bus journey, that alone makes the private hire exemption inapplicable to RRBs, as seemingly does the requirement for non-remuneration of the hirer.
There are some complex issues at the heart of this situation. I am sorry this exposition is long, but it is important to go through the points in a relatively systematic fashion.
Availability of PSVAR compliant buses and coaches
Perhaps the biggest problem was an assumption that if RRBs were in scope of PSVAR that the bus and coach industry would have acquired enough compliant vehicles for RRB work to be covered by compliant vehicles by 1 January 2020.
For PSVAR purposes, a bus is a vehicle designed and constructed for the carriage of seated and standing passengers, whilst a coach is a vehicle designed and constructed for the carriage of seated passengers only (see regulation 2 PSVAR). However, as all operations in scope of PSVAR now need a compliant vehicle, the option some operators previously used of declaring 'no standing' on a non-PSVAR compliant bus to make it a "coach" to buy that non-compliant vehicle more time for work in scope of PSVAR is now a historic artefact. What is more relevant now is how the terms are commonly understood as applying to vehicle body type: buses are low floor vehicles typically using some form of ramp for wheelchair boarding, coaches are high floor vehicles with luggage lockers that use a lift for wheelchair boarding.
Very few non-PSVAR compliant buses remain, as the main work for the majority of buses is published timetable work for which PSVAR compliance is mandatory. Operators involved in this work had ample notice of the need to replace vehicles with compliant ones by the deadline and built this into their fleet planning. However, the issues with using buses as RRBs have been well rehearsed already in this thread. Essentially all available frontline service buses (other than the usual prudent margins for maintenance and unusability) will be in use Monday to Friday, whilst almost all buses and bus drivers are expected to stay within the limits of journeys that are on domestic drivers' hours (so vehicles do not need tachographs fitting whilst both operators and drivers can avoid the complexity of mixed domestic and EU drivers' hours rules working). The UK cannot unilaterally extend domestic hours rules to all RRB work until the end of the transitional agreement period with the EU; for now it is bound by the list of potential exemptions from EU hours rules found in EU law.
PSVAR compliant buses (or redundant PSVAR buses being sold on from frontline published timetable duties) could be made available for work on EU hours rules by fitting a tachograph and providing drivers on EU hours rules - but this involves costs I would guess to be in the low thousands of pounds range to supply, fit and calibrate the tachograph, plus the costs of periodic recalibration, as well as the costs of periodically downloading and analysing the tachograph data for compliance issues as required by law.
The same availability situation with buses does not apply to coaches, as should have been apparent to anyone with any knowledge of the industry by no more than five years ago. Some coach users require PSVAR compliant vehicles - especially those running timetabled long-distance services such as National Express, Megabus and the like. However, a lot of coach work is private hire or non-scheduled journeys where all passengers are carried at least 15 miles, to which PSVAR does not apply.
Bus and coach operators will only buy and operate PSVAR compliant coaches if there is sufficient economic justification to do so. Unless there is a clear return on investment in buying a PSVAR compliant coach, which is likely to mean regular work in scope of PSVAR, the operator will stick with non-compliant vehicles and decline any work requiring a PSVAR compliant vehicle.
That being the case, it is no surprise that some formerly PSVAR compliant coaches have had the wheelchair lifts disabled or removed entirely. If the lift is available for use then it must receive regular inspections as mandated by The Lifting Operations and Lifting Equipment Regulations 1998 (commonly called LOLER) as well as all necessary maintenance. Whether the lift survives is likely to depend on economics - it will stay only if the costs of keeping it available can be justified by higher revenue from operating the vehicle as PSVAR compliant. If a factory fitted lift is end of life, it may well not be cost-effective to replace, whilst some lifts might be disabled (or removed) to prevent the recurrent inspection and maintenance costs.
Unless the rail industry pays, the bus and coach operators will not solve this problem for the rail industry by procuring new PSVAR compliant vehicles, reinstating PSVAR compliance on formerly compliant vehicles or, when possible (which I would expect would be 'almost never') making existing vehicles PSVAR compliant. Most RRB work is ad hoc, meaning that most operators will be better off declining RRB work that they do not have a suitable spare vehicle for. The huge price premiums quoted earlier in this thread between the cheapest second-hand PSVAR compliant vehicles and perfectly serviceable but non-compliant vehicles means that no operator will go out of their way to acquire a PSVAR compliant vehicle without regular work requiring that vehicle to be compliant.
A secondary problem for the rail industry is that operators are unlikely to want to allow their PSVAR compliant vehicles - which are likely to be more valuable, newer and more luxurious than the elderly coaches often found on RRB work - to go out for the low rates the rail industry is used to paying.
The limitations of PSVAR compliant coaches
Some RRB work really requires coaches, especially long-distance routes or routes where passengers have lots of luggage.
PSVAR compliant coaches are not a panacea for accessible transport, even once the current high acquisition costs have been met somehow. The lift, wheelchair space dimensions and tie-down arrangements impose limits on the size of the chairs that can be carried, the combined mass of wheelchair and occupant (in some circumstances, the unoccupied mass of a wheelchair can legally be up to 200kg and some more complex chairs are close to that limit in certain ex-factory specifications), and the models of chairs that can be carried.
Megabus quote 300kg combined mass, with chair and occupant fitting into a 1200mm long x 700mm width x 1350mm high space for travel on their vehicles, which will cover most but not all chair/user combinations. A wheelchair used for 'travel in wheelchair' on a motor vehicle should be one that is crash tested for this purpose - some chairs, especially lightweight sports chairs preferred by many active self-propelling users, are not. Mobility scooters cannot be carried via the wheelchair lift, but small folding or easily dismantled types can be carried as luggage.
PSVAR coach lifts often cannot safely lift a passenger who cannot climb the stairs without first seating the passenger in a wheelchair (National Express vehicles typically carry a folding manual wheelchair for this purpose) - this can, of course, only be done if the wheelchair space on the vehicle is not already occupied. The process of securing the passenger and chair to the lift takes time and space, so isn't something all wheelchair users are happy to undergo and isn't possible in all locations (there might be limits on how level the vehicle has to be to use the lift safely). I am not aware of a coach that can carry more than one wheelchair other than specialist vehicles routinely used for carrying groups of disabled people, but others might know differently!
Wheelchair accessible hackney carriages ('taxis') and private hire vehicles ('PHVs') - cannot necessarily be used to bolster non-wheelchair accessible coaches and buses
Those who are used to using hackney carriages in London ('black cabs') will know that they are pretty much universally wheelchair accessible. I think all TfL licenced hackney carriages must now be capable of carrying wheelchairs (other than a handful of heritage vehicles that were still licensed the last time I looked many years ago but may well have all been delicensed by now), though it is possible for drivers to have a medical exemption from the requirement to load and unload wheelchairs.
Availability of wheelchair accessible taxis is much more patchy outside London, with licensing authorities typically not in a position to insist on expensive wheelchair accessible vehicles. Licensing authorities adopting an 'all new and replacement hackney carriages must be accessible' might find operators give up hackney licences and simply operate entirely private hire fleets (especially as online booking has reduced the importance of street hail - the only work requiring a hackney licence/vehicle/driver). Similarly, licensing authorities adopting an 'all first time grants of a hackney licence will be limited to wheelchair accessible vehicles only' (allowing only existing licensees to operate non accessible vehicles) rule might well find they have no applicants for new licences.
When it comes to PHVs (sometimes called a 'minicab'), licensing authorities adopting a 'one wheelchair accessible vehicle per x vehicles licensed by the operator' rule might find many operators will limit their fleet to one less than an integer multiple of x, saving the costs of the more expensive wheelchair accessible vehicle, and quite a few operators will have no wheelchair accessible vehicles at all. There is no prospect even in London of a rule that states all PHVs must be wheelchair accessible - indeed, the higher sills of wheelchair accessible vehicles can make them less accessible to some mobility impaired people who are not wheelchair users than a conventional saloon car. In many places outside London, operators will only acquire wheelchair accessible vehicles if they have regular contracted work for them, the majority of which will be home-school transport contracts (which then limits the availability of the vehicle and its regular driver for other work).
What wheelchair accessible taxis and PHVs there are similar but not identical limitations to PSVAR compliant coaches. Some occupied wheelchairs are too heavy for the ramps and tie-down systems, some wheelchair users are too tall when seated in their chairs to fit and there might be insufficient space on the floor of the vehicle to accommodate some larger chairs in the correct position. Again, wheelchairs used for 'travel in wheelchair' should be a crash tested model. Mobility scooters, other than small folding or easily dismantled types, do not fit in any taxi or PHV.
Concluding thoughts
The vast majority of disabled people are not wheelchair users - indeed, only a minority of mobility impaired people are wheelchair users. I would not want to see any accessibility requirements quickly backed away from here; not least as the transport exclusion faced by disabled people and especially wheelchair users causes very real hardship to many. Indeed, there is still so much more to do and that should be done to improve transport accessibility.
However, the current situation seems to me to be primarily a case of a failure of PSVAR to achieve all the hoped for outcomes. PSVAR has made buses used for published timetable work wheelchair accessible and coaches used for long-distance scheduled services wheelchair accessible, creating transport options that did not exist even a few years ago. What it has not done is create widespread availability of PSVAR compliant coaches beyond the long-distance scheduled sector, as much of the remaining coach work is out of scope of PSVAR meaning operators have not been able to make the economic case for the acquisition of PSVAR compliant coaches.
Many here are familiar with the 'wheelchairs in buses' case - the Supreme Court judgment is
FirstGroup plc v Paulley [2017] UKSC 4. Now that buses on published timetable services have wheelchair spaces because of PSVAR, it is not surprising that people have taken to using the space for luggage and baby buggies, not just wheelchairs. At heart, that case was about what the bus company and its drivers had to do to allow wheelchair users to board. The judgment is complex, like many appellate judgments in the UK, as each judge either delivers their own judgment or concurs with another judge's judgment. Perhaps the simplest summary is to say that drivers must require the wheelchair space to be vacated for a wheelchair user whenever possible, but not to throw anyone already on the bus off if they refused to vacate the space. Doug asked the Supreme Court to find that the only way FirstGroup could have upheld the law was to require the wheelchair space to be vacated if needed for a wheelchair user; the judges held that the duty imposed does not extend that far. The judges also noted that the bus driver lacked a clear legal power to require someone vacates the wheelchair space.
I understand Doug's desire for a 'wheelchair absolute priority' situation, as that stands the best chance of a wheelchair user being able to travel, but that risked privileging wheelchair users over other disabled people. What if a parent with a buggy was unable due to disability or health problems to fold and unfold the buggy? What if the buggy contained a disabled or sick child who needed to travel in their buggy (in some cases, conditions that ultimately result in children needing to use a child sized wheelchair result in the use of a buggy or what looks like a scaled up buggy when the child is younger). There is also the risk of absurdity: if a driver had to clear the wheelchair space for a wheelchair user and the occupier(s) of the space refused, the only option remaining would be to stop the bus and wait indefinitely or call the police.
Some campaigners might want a similar 'wheelchair absolute priority' situation with RRBs - all must be wheelchair accessible or none run. I would believe such an approach was justified if there were sufficient PSVAR compliant vehicles available but the rail industry wanted to use cheaper, non-compliant vehicles as it has grown used to doing. Unfortunately, PSVAR has not resulted in the industry acquiring sufficient compliant coaches over the past 20 years and used compliant or potentially compliant vehicles aren't out there to be had in anything like the numbers required across the country to cover all RRB work. Not all RRB work is planned, so it is not enough for the rail industry to acquire suitable vehicles to be held in a pool to be moved to where needed, even if the considerable sum of money needed for this could be found (I would guess new PSVAR compliant coaches come at a cost of over £250k each, probably some way over £250k each, based on the prices of used coaches). Any solution that involved the rail industry paying some bus and coach operators to acquire suitable vehicles is a non-starter - it would amount to a massive and unjustifiable interference in the entire industry at this late stage, especially as most of those vehicles would have to be new builds.
I would rather any money that becomes available for rail accessibility to pay for additional "Access for All" improvements at stations than a fleet of PSVAR compliant coaches for use as RRBs, as overall I think this does more to improve transport accessibility, especially for wheelchair users.
The reality of this 'nuclear option' in the short to medium term would be no RRBs - inconveniencing the vast majority of rail travellers who are not wheelchair users, including many mobility impaired, chronically ill and elderly people, in a way that is hard to characterise as anything other than absurd. If the rail industry had been on clear notice 10 years ago that RRB work was in scope of PSVAR and that the bus and coach operators were not acquiring appreciable numbers of accessible coaches, there might have been time to come up with solutions - but with less than 6 months notice of the provisional legal advice, there was nothing anyone could do. The political storm from there being no RRBs may well easily persuade the responsible minister that either a multi-year derogation for RRBs coupled with funding industry incentives to acquire suitable vehicles is needed or even that RRBs are made permanently out of scope of PSVAR (by amending PSVAR or, so far as I can see, alternatively by a Statutory Instrument disapplying RRB usage by class under
section 178(1)(a) Equality Act 2010).
It is, of course an open question as to why DfT, the rail industry and bus and coach operators didn't seem to appreciate years ago there was an upcoming issue with a need for PSVAR compliant coaches for RRBs that seemed unlikely to be met without intervention - but any inquiry into that will not solve the problem the rail industry now faces.
The sad reality is that, in at least some parts of the country, it will be difficult or impossible to provide accessible rail replacement transport to a wheelchair user even if it is accepted that rail replacement can be done by running a wheelchair accessible taxi alongside each non-PSVAR bus or coach.
The costs of acquiring new or used wheerchair accessible vehicles to bolster the number of wheelchair accessible taxis or for the TOCs to operate alongside RRBs and to transport passengers to and from non-accessible stations will be much lower than buying a load of PSVAR compliant coaches - but it is still unclear how to deliver such a scheme. If the WAVs are to go to local taxi and private hire operators, how are these operators selected and what do you do about any disadvantage to the non-selected operators? If the TOCs operate them themselves, how do you create an appropriate legal framework for operations as well as compensating the taxi and private hire operators for the rail work they used to do?
There needs to be a solution for rail replacement transport for wheelchair users that gives as close a service as possible to that delivered to other travellers - but it needs to be one that is deliverable without massive uncosted and unfunded expense, also unrealistic expectations that operators of buses, coaches, taxis and PHVs will spend their own money acquiring wheelchair accessible vehicles they cannot otherwise justify just to be ready if they get a phone call from a rail operator.
Perhaps the Williams Review offers an opportunity to address this - if we move away from the current rail franchising model, maybe the reconfigured rail industry will be better equipped to address access issues including accessibility of rail replacement transport. It is of note that one of the members of the expert challenge panel to the Williams Review is Dr Alice Maynard CBE, who is a former chair of Scope, a leading disability charity.