Should Gov be sued over PRM failure?

The dispensation has been issued. It is for a lot of trains not a few. Government has predictably blamed TOCs.

Should the Goverment be sued?
For: The Government is basically another Tory rehash of the same Government that has failed to get a grip of general TOC performance and has also directly kicked the issue into the long grass through the ongoing franchsing debacle. It is front and centre on this and disabled groups have every right to sue as this is not really a dispensation, it is so widespread and the back story so based in the DfT and Tory failures on transport that this is a substantive breach of the law, not the application of reasonable and proportionate dispensations. Legal action does not stop the dispensations being applied, it just puts the Gov under proper pressure to provide a remedy which is the DfT getting off its backside and ensuring TOCs bring this to a conclusion quickly. It is also generally important for disabled rights for an example to be made.

Against: All trains can truly be expected to be PRM compliant by the end of the year or thereabouts without other TOC contractual committments being breached and so it really is a dispensation.

Why the government? Surely the problem is the ROSCO’s, they own the vehicles, it should be their businesses getting the work done and paying for it. They make money out of leasing their assets, so should make sure that they comply with all of the relevant legislation to allow the assets to be safely used.

No...

ZL exile said:

Why the government? Surely the problem is the ROSCO’s, they own the vehicles, it should be their businesses getting the work done and paying for it. They make money out of leasing their assets, so should make sure that they comply with all of the relevant legislation to allow the assets to be safely used.

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The Government has issued the dispensation and so I do not believe the ROSCOs can be sued for breaching disability legislation. TOCs may have contractual claims for any failure to hit contractual PRM work deadlines but that is a seperate matter.

I'm no fan of the current administration but what on earth would this actually achieve?, the older stock has to be used still because a lot of the new kit has either major or minor faults or the training hasn't been completed, somebody's fault definitely but not the Govt's

Such a move would only achieve fewer, shorter dispensations and consequently more overcrowding/short forms/cancellations.

No. Next question

Let's all sue the Government (ourselves) for the failure of train manufacturers to make things that actually work?, Bombardier was the one everybody wanted to kick but the others haven't been much, if any, better either, it's more than time the right people got the blame, sue Bombardier, sue CAF, sue whoever the manufacturers are, my taxes shouldn't be wasted in legal fees for their failures

By the time any judgements were given by a court or out of court settlements reached the non compliant stock will have been withdrawn.

Unless all the legal profession agree to work pro bono then the only real beneficiaries will be the lawyers lining their pockets!

ExRes said:

Let's all sue the Government (ourselves) for the failure of train manufacturers to make things that actually work?, Bombardier was the one everybody wanted to kick but the others haven't been much, if any, better either, it's more than time the right people got the blame, sue Bombardier, sue CAF, sue whoever the manufacturers are, my taxes shouldn't be wasted in legal fees for their failures

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It’s not just manufacturers tho. There’s no new train deliveries running late in the EMR franchise but the HSTs still need dispensation. That’s purely down to the government not allowing EMT to start the process of modification/replacement due to their crappy franchise system

ZL exile said:

Why the government? Surely the problem is the ROSCO’s, they own the vehicles, it should be their businesses getting the work done and paying for it. They make money out of leasing their assets, so should make sure that they comply with all of the relevant legislation to allow the assets to be safely used.

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agreed.

the legislation was passed nearly 10 years ago.The ROSCOs have had plenty of time to get their houses in order.

ExRes said:

Let's all sue the Government (ourselves) for the failure of train manufacturers to make things that actually work?, Bombardier was the one everybody wanted to kick but the others haven't been much, if any, better either, it's more than time the right people got the blame, sue Bombardier, sue CAF, sue whoever the manufacturers are, my taxes shouldn't be wasted in legal fees for their failures

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the problem isn't the train manufacturers.

new rolling stock orders have been compliant since the orders were made.
the problem is old stock refurbishments, which is purely a ROSCO issue.

this stock is basically a depreciating asset with limited life expectancy,and the ROSCO's want maximum revenue (minimal expenditure)from them.

31160 said:

I'm no fan of the current administration but what on earth would this actually achieve?, the older stock has to be used still because a lot of the new kit has either major or minor faults or the training hasn't been completed, somebody's fault definitely but not the Govt's

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Sometimes legal action of this type is important on the principle. We have a tradition in the UK that if you pass a law you stick to it, especially if you are the Government. The Government is also the correct enforcer of franchise committments which includes compliance with legislation. We have heard nothing about any penalty clauses for non-compliance and so disability rights groups might have a point in saying the Government paid only lip service to enforcing its own legislation through its own franchise agreements. The law is the law of the land passed by a democratic Parliament and is to be complied with. The Government has clearly dropped the ball in a few places on this one.

I am personally on the fence, but wouldn't blame disability rights groups for having a pop. It would likely be more of a 'raise your game' remedy in any case and that is a message that might be worth sending particularly as we are likely to see record levels of spin with the latest bunch - the PM is after all a journalist by trade

If the government wanted replacement of stock before the deadline, shouldn’t they have been writing it into the franchise specifications for the last 20 years? That would have been the obvious way to get it sorted as bidders would have been able to price it in and Roscos would have a clear timetable of how long their older stock would be good for.

Maybe a first step is to get your MP to raise the matter in the house - it'll be better if said MP isn't conservative otherwise it'll be an easy question for the government to dodge...

JamesT said:

If the government wanted replacement of stock before the deadline, shouldn’t they have been writing it into the franchise specifications for the last 20 years? That would have been the obvious way to get it sorted as bidders would have been able to price it in and Roscos would have a clear timetable of how long their older stock would be good for.

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Quite.

Unfortunately Governments over the past twenty years haven't even been keeping up with passenger growth, let alone specifying for rolling stock replacement.

hooverboy said:

the problem isn't the train manufacturers.

new rolling stock orders have been compliant since the orders were made.
the problem is old stock refurbishments, which is purely a ROSCO issue.

this stock is basically a depreciating asset with limited life expectancy,and the ROSCO's want maximum revenue (minimal expenditure)from them.

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New rolling stock may well be compliant but if the manufacturers can't supply trains that work .... what use are brand new compliant trains sitting around unable to be put into service? event the most ardent anti government person can't put the blame on them for making trains that are unfit for purpose

modernrail said:

The dispensation has been issued.

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Do you have a source for that ?

What would suing them achieve ? Personally I'd rather have a derogation, than non compliant stock removed from service.

In my experience, suing companies for not being compliant with disability related laws do make huge difference in relation to accessibility for disabled people.

The idea of suing isn't to make companies to adapt their services to be more accessible for disabled people. This is actually almost impossible nowadays since most judges do not like granting an injunction.

The idea is that it makes refusal or lack of inclination to make such services accessible for disabled people an expensive mistake.

Lastly, suing companies is often the only incentive for them to make their services more accessible because there is often no other enforcement methods apart from the government itself (e.g. making disability provision a requirement when bidding for contracts, etc) but that's not always common.

There are no grounds for suing are there?
The government have made dispensations, as presumably allowed by the legislation?

JamesT said:

If the government wanted replacement of stock before the deadline, shouldn’t they have been writing it into the franchise specifications for the last 20 years? That would have been the obvious way to get it sorted as bidders would have been able to price it in and Roscos would have a clear timetable of how long their older stock would be good for.

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yorksrob said:

Quite.

Unfortunately Governments over the past twenty years haven't even been keeping up with passenger growth, let alone specifying for rolling stock replacement.

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The problem is that DfT has always wanted to pull the strings on what rolling stock is to be used where, although the grip has loosened a bit now. Also they (more understandably) don't want the taxpayer to have to pay through the franchises for modifying trains with only few years remaining life.

I'm sure they'd be very worried about being sued. Fighting the case with our money. Paying any fines with our money.

Accountability comes via democracy (ie politicians getting sacked) not the courts.

Government no. ROSCOs yes.

It has been known for 6 or so years what the expectation is for rail vehicles and accessibility compliancy.
Many TOCs ordered new trains which were already PRM compliant due to being more modern. Those that haven’t ordered new stock have had 6 years to get on with any changes needed to become compliant. Which ROSCOs actually bothered to say to government, ‘This is what we have done, this is the scale of time and money, we’re on our way to but won’t have completed by’?

Meerkat said:

There are no grounds for suing are there?
The government have made dispensations, as presumably allowed by the legislation?

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It depends on what sort of dispensation what they have made. They hasn't announced it yet.

I suspect the PRM matter is not related to Equality Act 2010 however.

Under Equality Act 2010, the definition 'reasonable' changes over time and all circumstances are taken into account when a judge gives their judgment.

For me, it is not reasonable for a train company to sit on their arse for 6 or so years and I would hope a judge would agree to that.

Fine, go ahead and threaten to sue either the Government, the ToC's or the ROSCO's, and all that will happen is that they will pull all the non-compliant units off the line.
Result; very few trains running. Is that what you want?

JamesT said:

If the government wanted replacement of stock before the deadline, shouldn’t they have been writing it into the franchise specifications for the last 20 years? That would have been the obvious way to get it sorted as bidders would have been able to price it in and Roscos would have a clear timetable of how long their older stock would be good for.

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no need.
franchises typically last 7-10 years.
upon awarding the next franchise it should be clearly stipulated:

"the train operator shall use stock that is compliant with DDA 2010"
THAT MEANS ROSCO's basically have no way out but to comply.
if they do not do so,for whatever reaason ie emergency /short term lease, then the stock is available temporarily at fire-sale prices.

personally I wouldnt have a problem with lease charges being public domain information.

Sweetjesus said:

In my experience, suing companies for not being compliant with disability related laws do make huge difference in relation to accessibility for disabled people.

The idea of suing isn't to make companies to adapt their services to be more accessible for disabled people. This is actually almost impossible nowadays since most judges do not like granting an injunction.

The idea is that it makes refusal or lack of inclination to make such services accessible for disabled people an expensive mistake.

Lastly, suing companies is often the only incentive for them to make their services more accessible because there is often no other enforcement methods apart from the government itself (e.g. making disability provision a requirement when bidding for contracts, etc) but that's not always common.

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not even a need for suing if done correctly at the beginning.
just make it VERY clear that there is extremely limited demand for stock that isn't, and that will be reflected on the lease rates,and scope of vehicles that can be operated in such fashion.

the ROSCO's want to minimise expenditure/maximise revenue.
if the stock can only fetch 1/3 the retail value if non compliant, then it's an incentive for them to fit it out.

I think there's plenty of blame to go around here (but I don't think any of it actually gives rise to legal action). Ironically I actually think that in many respects that the TOCs are relatively blameless in this mess. I think it's notable, for instance, that the TOCs which knew they would be operating beyond the January 1 2020 deadline have either got their fleets sorted or have taken steps to sort it (which have then fallen apart due to delays but at least there was a plan!). Whilst the TOCs which were not in that position it is those that have taken over close to the deadline who are the ones where there are now issues (I'm thinking specifically of EMT into EMR). And I think that in many respects is to be expected! Why would TOC A who knows that their franchise expires at say the end of 2018 take steps to ensure that their fleet is compliant? I'm sure they wouldn't get in the way of work being done but they wouldn't want to pay for it themselves when they won't see the benefit.

So that then brings us to the ROSCOs and, again, in many cases they've taken steps to make their fleets compliant where there was a guaranteed future use. For instance the owner of XCs fleet of Mk3s has taken steps to ensure that they're compliant with the requirements of the PRM-TSI because they know that that fleet as some sort of future out to probably at least the mid-2020s. Meanwhile EMR's fleet of HSTs are non-compliant but then their future was very uncertain until the franchise award was finally made in April 2019 which leaves it a bit late in the day!

But then the it's hard for the ROSCOs to make plans and know which stock to make complaint when their customers move to the beat of the DfT! The DfT are, of course, the authority that is responsible for franchising and therefore has the sign off on the various plans put forward by TOCs in line with their legal requirements and franchise specifications. It is also the DfT that have thrown the franchising schedule into chaos since 2012 with franchise after franchise being delayed again and again. It is also the DfT that moved from long term franchises (up to twenty plus years in some cases like Chiltern) to short seven year franchises where by default there is much less long term thinking (by no means do I mean that there is no long term thinking but certainly there's much less of an incentive particularly where there is equally no guarantee of a reward should you be doing an excellent job). So the DfT have delayed a great many franchises (with at best short one or two year extensions) and the DfT have developed a system where the awards themselves when they are made are often relatively short.

So, to my mind, there's plenty of blame to throw around and it's hard to point the finger in one direction and say conclusively "it's your fault!". Personally I'd argue that the blame most squarely sits with the DfT as they're the only organisation since the demise of the SRA that can really lay claim to a "guiding mind" roll within the industry and they are the ones that have continually let franchises or direct awards which haven't included requirements for TOCs that are leaving the scene before the deadline to prepare their fleets (or to give the ROSCOs the certainty to take those steps themselves). But certainly this is not exclusively a DfT failing.

Llanigraham said:

Fine, go ahead and threaten to sue either the Government, the ToC's or the ROSCO's, and all that will happen is that they will pull all the non-compliant units off the line.
Result; very few trains running. Is that what you want?

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If this sort of threat is the best solution that the railway can come up with, after 10 years notice of the deadline, then why not go for it. I'm sure it will win friends in Westminster and Whitehall.

I'm unclear what exactly any prospective claimants might actually sue the government (the Secretary of State for Transport) for. An application for Judicial Review into the dispensations that have been issued might be fascinating to hear argued out. I do not know what the proposed case might rest on, but you could start with the claim that the dispensations are a breach of the Convention Rights of disabled people, and work from there. The Secretary of State could argue that the dispensations are a proportional discrimination against disabled people as allowed under the Human Rights Act, and it would be for the judge to decide if they were or not.

I would be surprised if such a claim were a success. I will not be surprised though if someone somewhere is already looking at starting a case of this nature.