Availability of accessible rail replacement coaches

richw

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I didn't think it was compulsory to wear a seatbelt on a bus. What about standing passengers? The main reason the Knightswood Ailsas had seatbelts was because they did school runs. Most of the school runs had a rush hour passenger working tagged on to the diagram but it was common to see one or two out all day on the X6 and X7. I cannot recall what type of bus covered the other workings on those routes or whether they had seatbelts.
If it’s fitted to the seat your sitting in it’s legal requirement to wear
 
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Temple Meads

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Hardly any service buses have seatbelts in this country, but all coaches do. Where fitted it is indeed compulsory to wear them, but the law is rarely enforced.
 
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Hardly any service buses have seatbelts in this country, but all coaches do. Where fitted it is indeed compulsory to wear them, but the law is rarely enforced.
Used to be the case that before the commencement of every journey, either the driver or the coordinator was expected to announce that it is a legal requirement to wear seatbelts. If there was a mystery shopper and they hadn't heard the announcement, it was one of the things you could get marked down on.

There was one former coordinator who would walk the length of the coach checking people had their seatbelts fastened before letting it depart. Of course nothing to stop people unfastening them again as soon as it had left.
 
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if tickets were only required up to A and onwards from B with the bus totally free then it would be exempt. But if even one passenger held a through ticket from before A until after B psvar would apply. This would be likely on period return leg tickets, as the operator could withdraw through tickets with specific dates
It's irrelevant that others might travel for free. The point is that it's an integral part of a rail journey that passengers have paid for. It has only been provided because a train cannot proceed as it would normally.
But if through ticketing wasn’t available and only split ticketing through a planned blockade and a complimentary bus was provided to link the two split tickets I believe this would exempt it
In theory, I guess it would be legal - but I doubt it's ever going to happen.
None of the above applies as the legal definition requiring an operation of passenger transport hinges on the existence of “hire or reward” which is taken to mean ‘Payment being made by or on behalf of a person which gives that person the right or expectation to be carried regardless of whether that right is taken up or not. Payment may also be part of a package or ticket price.’ Hence the requirement for a PSV.

In the above, it may be a argued that someone is always paying for someone else to travel. Who is paying for the RRB?

Interestingly direct government provision is (iirc) directly exempted from the O license requirements, hence why local authorities may operate certain types of transport without (any type) of O License.

However, since it would appear to be the regs around the provision of RRBs which is being mandated here (compliant with the PSVAR regs) as someone who is about to purchase a fleet of accessible buses, should I be offering them out for RRB work?

I would agree that it would therefore be easier for RRBs not to be provided. However, there almost certainly needs to be a concession around providing an accessible taxi as an alternative to this madness.

Additionally, whoever claimed that going above 62mph would lead to you being automatically booked upon uploading your driver card records is talking complete nonsense. True, the analysis software (whichever you use) would flag it, but it wouldn’t go any further from the analysis provider. Take it from someone who has had to present drivers hours records at a Public Inquiry on behalf of an Operator, DFT do not automatically receive those records.
 

harz99

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Additionally, whoever claimed that going above 62mph would lead to you being automatically booked upon uploading your driver card records is talking complete nonsense. True, the analysis software (whichever you use) would flag it, but it wouldn’t go any further from the analysis provider. Take it from someone who has had to present drivers hours records at a Public Inquiry on behalf of an Operator, DFT do not automatically receive those records.
Glad to see someone knows what their talking about! The person you refer to also wrote a lot of nonsense about speed limiters as well...
 

philthetube

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The government could do more to cater for all citizens and subsidise the cost of increasing the availability of accessible vehicles. The PSVAR have turned coach operated rail replacement routes into niche work where demand for vehicles outstrips supply considerably.
For Government read you and me.

Additionally, whoever claimed that going above 62mph would lead to you being automatically booked upon uploading your driver card records is talking complete nonsense. True, the analysis software (whichever you use) would flag it, but it wouldn’t go any further from the analysis provider. Take it from someone who has had to present drivers hours records at a Public Inquiry on behalf of an Operator, DFT do not automatically receive those records.
It is not illegal for a coach to be driven at 70 mph, what is illegal if for that coach not to have a speed limiter fitted which restricts it to 62, (unless it is over a certain age) this is the owners problem, not the drivers.
 

Deafdoggie

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Used to be the case that before the commencement of every journey, either the driver or the coordinator was expected to announce that it is a legal requirement to wear seatbelts. If there was a mystery shopper and they hadn't heard the announcement, it was one of the things you could get marked down on.

There was one former coordinator who would walk the length of the coach checking people had their seatbelts fastened before letting it depart. Of course nothing to stop people unfastening them again as soon as it had left.
It is still a requirement for passengers to be informed of seatbelts. However, this is now mostly done by having small barely visible stickers on the windows. This removes the need for an announcement.
On some school and college contracts the students sign a contract of travel to say they’ll wear the seatbelt. Again it doesn’t force them into it, but they can’t say they weren’t informed.

Glad to see someone knows what their talking about! The person you refer to also wrote a lot of nonsense about speed limiters as well...

I don’t know to what nonsense you refer, but it is a legal requirement for buses and coaches to have speed limiters. It is part of the drivers responsibility to ensure they work (anyone with a CPC will tell you that) If it isn’t and you go over the limit you commit an offence. All of this is true, I’m sorry if you dismiss it as nonsense, but it doesn't stop It being true.
If you have a roadside stop by DVSA (formally VOSA) and they download your tacho they can spot the offence and can book you for it. If this is nonsense do let me know and I’ll tell DVSA next time.
 

Bletchleyite

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I don’t know to what nonsense you refer, but it is a legal requirement for buses and coaches to have speed limiters. It is part of the drivers responsibility to ensure they work (anyone with a CPC will tell you that) If it isn’t and you go over the limit you commit an offence
The speed limit for buses and coaches on the motorway is 70mph not 62mph.
 

Nick_C

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A lot more service buses these days are fitted with seatbelts - I believe it's now a requirement for those used on school contracts, so I suspect companies that do such work will fit most of their fleet so they have flexibility in which vehicles to use for which services (certainly all the buses used by the firm that operate our office shuttle bus are fitted, and I know they also do schools work)
 

richw

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It is part of the drivers responsibility to ensure they work
It’s a £200 fixed penalty to the driver for using a vehicle with a defective limiter if legally required. The operator will also be subject to follow up enquires.
but as a driver there isn’t a way of knowing it’s recently defective until you get to the speed on the road and it goes over
But PSV speed limiter exemptions can be granted if the vehicle:

  • has been modified so as not to be capable of relevant speed
  • is incapable of relevant speed by its original design
  • is exempt by emissions approval
  • has a particular use
 

L401CJF

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On the subject of seatbelts being worn but standees not having to, if the vehicle (whether its visibly a bus or a coach) is registered as a coach, then standees are not permitted. A number of operators have reregistered old buses usually with step entrance, as coaches rather than buses and to do this have to remove the standing capacity. They do this because the PSVAR laws came in for minibuses, single deckers and double deckers a while ago, but coaches could run non compliant until January this year (I hear it has now been extended a few months?). So by removing standees and reregistering the non compliant bus as a coach, it can be used on stagecarriage work - ie public service.

As far as I am aware, non compliant buses and coaches can still be used on closed door contracts(hires etc) which do not specify the vehicle has to be compliant, just not stagecarriage work.
 

richw

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I hear it has now been extended a few months?
Until April for rail replacement, and 2 years for school runs where less than 20% of pupils pay themselves. Several companies who spent big money complying have clubbed together to investigate suing the DfT over the extensions as it’s Meant unnecessary large investments sooner than required.
 

Snow1964

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An Interesting twist, at least one Operator that invested to comply with PSVAR by the coach deadline, is now threatening legal action against DfT for compensation due to them issuing exemptions (which means Operators that didn't comply by 1st January have unfair financial advantage as they saved the costs of the upgrades). They are hoping others that spent money to comply will join them.

https://www.route-one.net/news/fishers-tours-explores-legal-action-over-psvar/

Once again looks like DfT didn't think of consequences of its late change of deadlines.
 

harz99

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Our toilets are kept locked, if people want to use them they have to ask the driver, that way the number of times they get used decreases.
That comment implies you have a position in the Bus and Coach industry, what is that position please?

I myself am a retired operator and have held both a personal PSV Standard National Operator's Licence and a similar Company one, both of which I was the TM for. Apart from my involvement at Director level, over the years I have been a driver, driver/op, inspector and depot manager, as well as a career with BR for a number of years pre privatisation, at which event I went back into buses and coaches.

The law requires all buses and coaches to have a working speed limiter set at 62mph (Lorries are 56mph). A tachograph will flash a warning if you go faster, if you ignore it, it’ll get picked up when your tacho card is next downloaded (which has to be within 28 days) You can expect a fine and points. Of course, if you’re using service buses with no tacho fitted then you’ll possibly get away with it. But it doesn’t make it legal & in my view makes service buses even more unsuitable for RRB work.
1) You cannot go faster than the speed limiter will allow, yes IF the limiter is not working correctly the driver would be able to exceed the set speed, but would be very foolish to both drive the defective vehicle and speed.

2) As a driver, it is your company that downloads the data from the Tacho card. Any action against driver would be by the company UNLESS that driver was involved in an accident or similar that lead to enforcement action against the parties. To say the driver "can" expect a fine and points is only true where enforcement action has been taken, which is very, very few times - how many times do you see court reports in the Legal section of the trade press concerning such issues versus how many drivers and vehicles are on the road in full compliance every day?

Of course, a speed limiter is of no use/value whatever on any roads where the speed limit is set below the National Speed Limit, or thousands of HGVs every day wouldn't be able to exceed 40 mph on single carriageway roads, which they of course do all the time.
 

Bletchleyite

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Of course, a speed limiter is of no use/value whatever on any roads where the speed limit is set below the National Speed Limit, or thousands of HGVs every day wouldn't be able to exceed 40 mph on single carriageway roads, which they of course do all the time.
Point of order, it's been increased to 50mph (and to 60 on duals) to reduce congestion and dangerous overtakes, other than in Scotland.
 

Deafdoggie

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You cannot go faster than the speed limiter will allow, yes IF the limiter is not working correctly the driver would be able to exceed the set speed, but would be very foolish to both drive the defective vehicle
Incorrect. You can easily get an overspeed warning on a downhill, you’re accelerating upto 62mph and gravity will take you over the limiter. The limiter simply restricts the accelerator, it doesn’t affect gravity. This is why there is an overspeed warning flashing up on the tacko, a gentle reminder for you to react to.

Some coaches have a cruise control setting allowing a +/- of 4mph. Set it 62mph and it will allow 66mph! It’s your responsibility to keep it below 63mph, otherwise the overspeed warning will flash. Depending on the coach it may bleep wildly too.


As a driver, it is your company that downloads the data from the Tacho card. Any action against driver would be by the company UNLESS that driver was involved in an accident or similar that lead to enforcement action against the parties. To say the driver "can" expect a fine and points is only true where enforcement action has been taken, which is very, very few times
Personally, and others may disagree, I don’t believe you should break the law just because the chances of being caught are small.
The DVSA can, and do, stop buses and coaches at any time and download tackos. An overspeed will show. They may, or may not, choose to do anything about it. But again, personally I don’t believe you should break the law because the chances of them doing something is small.

Your point on speed limits has already been answered.
 

Bikeman78

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On the subject of seatbelts being worn but standees not having to, if the vehicle (whether its visibly a bus or a coach) is registered as a coach, then standees are not permitted. A number of operators have reregistered old buses usually with step entrance, as coaches rather than buses and to do this have to remove the standing capacity. They do this because the PSVAR laws came in for minibuses, single deckers and double deckers a while ago, but coaches could run non compliant until January this year (I hear it has now been extended a few months?). So by removing standees and reregistering the non compliant bus as a coach, it can be used on stagecarriage work - ie public service.
I'll have to check next time I go on one but I think the Cardiff double deckers have seatbelts and also allow standees. They appear on most routes, any of which can be full and standing in the peaks.
 

L401CJF

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I'll have to check next time I go on one but I think the Cardiff double deckers have seatbelts and also allow standees. They appear on most routes, any of which can be full and standing in the peaks.
If it is a modern double decker that is compliant with the PSVAR (Accessability regulations) then it is allowed standees, seatbelts can be fitted to any bus. I was just mentioning that a lot of older buses which are not PSVAR compliant such as step entrance Olympians etc have been reregistered as Coaches so they could still be used on regular service work as the date for coaches having to meet the regulations was a good couple of years later than that of a standard bus. To register a bus as a coach basically just means removing standing capacity. Doesn't mean modern buses which meet the PSVAR regs can't have seatbelts fitted, and would allow standees if still registered as a bus not coach. - Sorry for any confusion!
 

33017

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I'll have to check next time I go on one but I think the Cardiff double deckers have seatbelts and also allow standees. They appear on most routes, any of which can be full and standing in the peaks.
They did have for a short period a few years ago but all have been removed.
 

djw

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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 provisional 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.
 

kingqueen

Member
Joined
12 Apr 2010
Messages
368
Location
Wetherby, North Yorkshire
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 somebody who has been intimately involved with this issue and whose challenge caused it to come to the fore, your analysis is the most comprehensive, reasoned and accurate to my understanding, that I've come across.

I have a couple of comments on your excellent discourse. Where I haven't commented, it's generally because I agree with what you've written.
the current situation is curious and has seemingly been brought about by campaigner pressure (my apologies to Doug Paulley - @kingqueen on these forums
It was certainly my legal challenge that brought about the ORR to solicit the legal opinion; but I'd argue it was the industry's failure to identify that rail replacement services are in scope of PSVAR that was the ultimate cause (a point you make further down.)
Thank you for this - this had passed me by! I can't find this linked on their website - is it / or was it when the consultation was live?
some lifts might be disabled (or removed) to prevent the recurrent inspection and maintenance costs.
My understanding is that lifts may also be / have been removed to improve fuel efficiency (they weigh a lot) and to increase capacity; a wheelchair space may reduce capacity by 3 or more seats.
That's from the PSVAR and is the same requirements as that in PRM-TSI or RVAR (the rail equivalent). Trains and ramps etc. are required to take wheelchairs that are no more than 120cm x 70cm floor space and a combined weight of 300kg. So are PSVAR-compliant coaches, buses, and accessible taxis. As a result, PSVAR-compliant coaches are (theoretically) not any more restricted than trains in terms of wheelchair dimensions.
A wheelchair used for 'travel in wheelchair' on a motor vehicle should be one that is crash tested for this purpose
Whilst it is obviously desirable that wheelchairs are crash-tested, there's nothing in any of the regulations that says they have to be. Indeed, National Express removed the requirement of crash-test-approval of wheelchairs, following my involvement. I don't understand where some (limited) elements of the industry are fixated on crash testing, because it's not reflected in any of the legislation, primary or secondary.
The process of securing the passenger and chair to the lift
This doesn't happen; there's no securing of chairs or persons to lift. Though deploying the lift takes time, also securing a wheelchair and occupant into a wheelchair space - the time being dependant on the maintenance of the components and on the familiarity and knowledge of the operator (usually the driver); where such is optimal, it takes less than two minutes.
there might be limits on how level the vehicle has to be to use the lift safely.
More so is the pavement space required for the lift and associated wheelchair manoeuvring space - the lift extends some way out of the vehicle.
Those who are used to using hackney carriages in London ('black cabs') will know that they are pretty much universally wheelchair accessible.
In theory, I wish they were always so in reality!
What wheelchair accessible taxis and PHVs there are similar but not identical limitations to PSVAR compliant coaches.
In theory, it's the same minimum spec: wheelchairs within 70cm x 120cm x 135cm combined weight 300Kg will fit. The reality (from both my experience and that of multiple other wheelchair users) is that this is not the case; or certainly that it's not possible or easy to fit and travel comfortably in taxis, whereas it may be in coaches.

I find coaches infinitely preferable: not only because of the availability, sponteneity, inclusivity arguments, but also physically. I face forwards, have effectively unlimited headspace and can see out of the windows. Something non-wheelchair users take for granted.
Again, wheelchairs used for 'travel in wheelchair' should be a crash tested model.
Again, that's undoubtedly best practice but not reflected in legislation.
The vast majority of disabled people are not wheelchair users - indeed, only a minority of mobility impaired people are wheelchair users.
This is very true, and is an important aspect not to be overlooked. The PSVAR includes multiple requirements other than just wheelchair accessibility; for example, route information, colour contrast, pitch of seats and knee room, etc. It is not just about wheelchair access.
However, the current situation seems to me to be primarily a case of a failure of PSVAR to achieve all the hoped for outcomes.
When PSVAR was introduced, the Department for Transport indicated an intention in due course to consider and introduce similar to cover private hire coaches etc. They haven't. Maybe if they had, we might not be in such a pickle, and PSVAR may have achieved more. Similarly if the DVSA had enforced (a point you make further on.)
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
It was much more nuanced than that. We asked that bus companies should do more to promote the fact that the wheelchair space is for disabled people. NB: not just wheelchair users - I was at pains throughout to make the point you make well, that it isn't just wheelchair users, other disabled people may need that space in order to be able to travel. My legal reps made that similarly.

We also didn't reduce the case solely to drivers having powers of ejection of non-disabled people. For example, from the documents, judges recognised that we argued bus companies should "make clear to other passengers that the wheelchair space is for wheelchair users and that they will be expected to vacate the space if needed, by having a clear policy on the issue and/or requiring First Bus drivers to warn passengers each time they board the bus that they will have to fold their buggies and/or vacate the bus if a wheelchair user wishes to board" and "have an automated voice system informing passengers that they need to vacate/fold their buggies for disabled people." (I note that TfL have since instituted such a system on London buses.) The press liked to narrow the issues to an absolutist "wheelchair vs pushchair; get the driver to decide" issue - but that wasn't the case we presented.

I also don't think this is relevant to rail replacement coaches. (Yet. If in the future any significant number of rail replacement coaches become accessible, I should imagine that problems with competition for the wheelchair space will occur, as it does in on trains.)
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.
I have a particular question as to why the DVSA didn't enforce. They are tasked with doing so; why didn't they promote compliance, and enforce compliance, as time went on? If they had, this situation wouldn't have come as such a shock.

The DfT also played their role. They said to me in June 2018, inter alia, "In your original enquiry you noted that there were different schools of thought on the application of the Public Service Vehicles Accessibility Regulations 2000 (PSVAR) to vehicles providing rail replacement services, and asked for the Department's view. ... As such, from a policy perspective, it is our view that PSVAR is likely to apply to rail replacement services meeting the above criteria. Again, whilst it is ultatimely for the Courts to interpret the legislation, we would consider that a fare has been paid for a journey even if it has been paid to a Train Operating Company rather than the operator of the rail replacement service..."

They clearly considered that there are circumstances in which rail replacement services are required to comply with the PSVAR. So why didn't my prompting cause them to take the issue up then, instead of waiting for my threat of judicial review in summer 2019?

As you say, though, my retrospective griping on this does nothing to resolve the predicament the industry currently faces.
 

Robertj21a

Established Member
Joined
22 Sep 2013
Messages
6,352
As somebody who has been intimately involved with this issue and whose challenge caused it to come to the fore, your analysis is the most comprehensive, reasoned and accurate to my understanding, that I've come across.

I have a couple of comments on your excellent discourse. Where I haven't commented, it's generally because I agree with what you've written.It was certainly my legal challenge that brought about the ORR to solicit the legal opinion; but I'd argue it was the industry's failure to identify that rail replacement services are in scope of PSVAR that was the ultimate cause (a point you make further down.)Thank you for this - this had passed me by! I can't find this linked on their website - is it / or was it when the consultation was live?My understanding is that lifts may also be / have been removed to improve fuel efficiency (they weigh a lot) and to increase capacity; a wheelchair space may reduce capacity by 3 or more seats.That's from the PSVAR and is the same requirements as that in PRM-TSI or RVAR (the rail equivalent). Trains and ramps etc. are required to take wheelchairs that are no more than 120cm x 70cm floor space and a combined weight of 300kg. So are PSVAR-compliant coaches, buses, and accessible taxis. As a result, PSVAR-compliant coaches are (theoretically) not any more restricted than trains in terms of wheelchair dimensions.Whilst it is obviously desirable that wheelchairs are crash-tested, there's nothing in any of the regulations that says they have to be. Indeed, National Express removed the requirement of crash-test-approval of wheelchairs, following my involvement. I don't understand where some (limited) elements of the industry are fixated on crash testing, because it's not reflected in any of the legislation, primary or secondary.This doesn't happen; there's no securing of chairs or persons to lift. Though deploying the lift takes time, also securing a wheelchair and occupant into a wheelchair space - the time being dependant on the maintenance of the components and on the familiarity and knowledge of the operator (usually the driver); where such is optimal, it takes less than two minutes.More so is the pavement space required for the lift and associated wheelchair manoeuvring space - the lift extends some way out of the vehicle.In theory, I wish they were always so in reality!In theory, it's the same minimum spec: wheelchairs within 70cm x 120cm x 135cm combined weight 300Kg will fit. The reality (from both my experience and that of multiple other wheelchair users) is that this is not the case; or certainly that it's not possible or easy to fit and travel comfortably in taxis, whereas it may be in coaches.

I find coaches infinitely preferable: not only because of the availability, sponteneity, inclusivity arguments, but also physically. I face forwards, have effectively unlimited headspace and can see out of the windows. Something non-wheelchair users take for granted.Again, that's undoubtedly best practice but not reflected in legislation.This is very true, and is an important aspect not to be overlooked. The PSVAR includes multiple requirements other than just wheelchair accessibility; for example, route information, colour contrast, pitch of seats and knee room, etc. It is not just about wheelchair access.When PSVAR was introduced, the Department for Transport indicated an intention in due course to consider and introduce similar to cover private hire coaches etc. They haven't. Maybe if they had, we might not be in such a pickle, and PSVAR may have achieved more. Similarly if the DVSA had enforced (a point you make further on.)It was much more nuanced than that. We asked that bus companies should do more to promote the fact that the wheelchair space is for disabled people. NB: not just wheelchair users - I was at pains throughout to make the point you make well, that it isn't just wheelchair users, other disabled people may need that space in order to be able to travel. My legal reps made that similarly.

We also didn't reduce the case solely to drivers having powers of ejection of non-disabled people. For example, from the documents, judges recognised that we argued bus companies should "make clear to other passengers that the wheelchair space is for wheelchair users and that they will be expected to vacate the space if needed, by having a clear policy on the issue and/or requiring First Bus drivers to warn passengers each time they board the bus that they will have to fold their buggies and/or vacate the bus if a wheelchair user wishes to board" and "have an automated voice system informing passengers that they need to vacate/fold their buggies for disabled people." (I note that TfL have since instituted such a system on London buses.) The press liked to narrow the issues to an absolutist "wheelchair vs pushchair; get the driver to decide" issue - but that wasn't the case we presented.

I also don't think this is relevant to rail replacement coaches. (Yet. If in the future any significant number of rail replacement coaches become accessible, I should imagine that problems with competition for the wheelchair space will occur, as it does in on trains.)
I have a particular question as to why the DVSA didn't enforce. They are tasked with doing so; why didn't they promote compliance, and enforce compliance, as time went on? If they had, this situation wouldn't have come as such a shock.

The DfT also played their role. They said to me in June 2018, inter alia, "In your original enquiry you noted that there were different schools of thought on the application of the Public Service Vehicles Accessibility Regulations 2000 (PSVAR) to vehicles providing rail replacement services, and asked for the Department's view. ... As such, from a policy perspective, it is our view that PSVAR is likely to apply to rail replacement services meeting the above criteria. Again, whilst it is ultatimely for the Courts to interpret the legislation, we would consider that a fare has been paid for a journey even if it has been paid to a Train Operating Company rather than the operator of the rail replacement service..."

They clearly considered that there are circumstances in which rail replacement services are required to comply with the PSVAR. So why didn't my prompting cause them to take the issue up then, instead of waiting for my threat of judicial review in summer 2019?

As you say, though, my retrospective griping on this does nothing to resolve the predicament the industry currently faces.
Doug,

As you'll probably recall, I've been following your various attempts to get these issues highlighted, and resolved, for rather a long time now. It was a major achievement for you when others finally began to recognise that specific action was required by them in order to comply with the legislation. It's certainly very good to see the subject now remain high on the agenda of many organisations. Although I am not directly affected, I applaud the efforts made by you for the benefit of many others.
 

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