Select Committee on Transport Third Report


3 Implementation

28. The implementation of the legislation is just as important as the framework itself. In the course of this inquiry, we received written and oral evidence about the way some individual disabled people are treated when they try to use public transport. Their stories are often shocking: we heard about the blind train passenger who, in the absence of anyone to help, opened the slam door on the usual side and stepped down to find that there was no platform;[47] we also heard about the guide dog owner in London who, during one day, was verbally abused by one bus driver who refused to tell him the route number, and told by another that he could not take his dog on the bus.[48]

29. This chapter examines the implementation of the relevant legislation and some of the myths and misunderstanding which appear to have arisen.

Health and safety

30. An popular assertion is that transport operators use health and safety rules as an excuse not to adapt their facilities or services to make them more accessible to disabled people.[49] In particular, there has been speculation that health and safety rules prevented Central Trains from re-establishing a barrow crossing with pedestrian signals at Thetford station in Norfolk.[50] (A court case was taken to resolve the arrangements for access to this station by a passenger in a wheelchair. This is discussed below.)

31. In fact, the Health and Safety Executive (HSE) told us that "no formal proposal has been submitted by the station operator to either HSE or to Network Rail (the mainline rail infrastructure controller)".[51] We cannot assess whether Central Trains did not make a formal proposal because they thought it might not succeed. Nevertheless, Her Majesty's Railway Inspectorate will only support new level or barrow crossings in exceptional circumstances, and HSE encourages the closure of existing crossings where a risk assessment indicates high risk.[52] Responsibility for health and safety regulation on the railways is due to pass to the Office of Rail Regulation as a result of the Railways Bill.[53]

32. The Disability Rights Commission believes health and safety concerns have been raised inappropriately, for example in the case mentioned at paragraph 24 of deaf people being prevented from flying because they would be unable to understand safety instructions.[54] However, the DRC notes that it is unable to challenge such decisions in the courts because of the current exemptions from the legislation.

33. The Department for Transport suggested that:

"Health and safety should not […] be used as an excuse not to make appropriate provision for disabled people."[55]

This is not the full story. While health and safety should not be used as an excuse for inaccessibility, it can be used as a justification: section 20(4)(a) of the DDA allows a service provider to justify treating a disabled person less favourably than others if it is reasonable to believe that

"the treatment is necessary in order not to endanger the health or safety of any person (which may include that of the disabled person)".[56]

34. There can therefore be a tension between accessibility improvements, health and safety standards and cost, although this obviously does not exist in every case. As the Health and Safety Executive notes:

"In many cases, we believe that dutyholders will be able to take measures that meet the requirements of both DDA and health and safety law. […] To a significant extent, then, we do not believe dutyholders should justifiably see compliance with health and safety law as a barrier to compliance with DDA and we believe there will be few cases where dutyholders will find it impossible to satisfy both health and safety and disability requirements.

"However, there will be occasions where a risk assessment will identify risks where the measures needed to protect people's health and safety will place a justifiable constraint on what dutyholders can do to ensure a disabled person is not treated less favourably. In some cases, reasonable adjustments to ensure equal treatment for disabled people might still be practicable. But, in others meeting both health and safety requirements and DDA might be very costly. The DDA recognises this by including provisions for health and safety or cost to justify failure to make reasonable adjustments or other actions apparently treating a disabled person less favourably. These provisions cannot be used unless the dutyholder reasonably believes that the treatment is necessary not to endanger the health and safety of any person or the cost of making adjustments is unreasonable. The judgement of what is reasonable for dutyholders is not an easy one and will need to be resolved on a case-by-case basis."[57]

35. In those cases where there is a tension, the difficult choice which faces service operators is whether to make at great cost an adjustment which meets health and safety requirements; whether to seek a derogation from the normal health and safety standard; or whether to plead excessive cost and not make any adjustment. That decision will not be taken in isolation from other business decisions and is all the more difficult for the operator because the wrong decision could result in legal action. It is also sensitive in an industry which relies heavily on subsidy, such as rail. Lord Bradshaw illustrated the dilemma particularly well by returning to the example of the barrow crossing, imperfect though it may be:

"It will be incredibly expensive to provide access to platforms at stations which cannot be accessed from 'both' sides. The use of a barrow crossing, with suitable warning lights would obviate many of the problems at reasonable cost, but this would require modification of the present safety requirements. If money is spent on expensive means of access e.g. lifts or bridges, there is a fear that such money would be deducted from the limited funds available for improving rail services."[58]

36. We do not believe transport operators rely systematically on spurious health and safety considerations to avoid improving disabled people's access to transport. There can occasionally be a tension between health and safety, cost and accessibility. However, sometimes small increases in risk might bring significant improvements to accessibility. When tensions do arise between health and safety, cost and accessibility, transport operators must be able to seek authoritative advice to reduce the likelihood of legal action. The provision of advice must not be jeopardized when rail safety responsibilities move from the HSE to the Office of Rail Regulation, or when the Equality and Human Rights Commission replaces the Disability Rights Commission.

Co-ordination of improvements

37. In our last Report, we recommended that if a station itself was accessible, steps should be taken to ensure it was served by accessible trains.[59] We were disappointed by the Government's response that "it is not always possible, or indeed practicable, to ensure such alignment of access provision".[60] The existence of accessible stations without accessible trains, and accessible trains running to inaccessible stations, makes it seem that improvements to the service have not been well co-ordinated. We appreciate that many rail stations were originally built over 100 years ago, and that, as ATOC notes, "priority for works will take the amount of passenger usage at the station into consideration as well as the feasibility of new works and customer requirements."[61] However, since the pace of change is quite slow, immediate benefit can only be derived from improvements if they are aligned in a meaningful way.

38. The SRA told us that it was developing an accessibility strategy for consultation, the aims of which will be:

  • "to establish a coherent, agreed, funded plan for making the railway more accessible;
  • given finite resources, to establish a framework within which priorities can be established; and
  • to set out a clear implementation route so that different players within the restructured railway can all work towards common goals."[62]

The SRA explained that this was likely to mean that busier stations would be prioritised. The DRC were disappointed that this strategy had not yet been published, since "the duty to make reasonable physical adjustments is anticipatory and we think that it should have been in place before the duty came into effect on 1 October [2004]."[63] Mr Bee thought this showed "an unacceptable level of planning and co-ordination."[64]

39. When we discussed this issue with the Minister, she suggested that the transfer of strategic responsibility for the railways to the Department for Transport as a result of the Railway Bill would result in better co-ordination of accessibility improvements:

"Chairman: […] There is no point in giving access to a station where there are no trains. Is there now a very urgent view in the Department that we cannot really wait any longer, we have to have this kind of straightforward decision-making pushed to the front of the queue?

"Charlotte Atkins: You are absolutely right, and now that we are taking greater control of the railway industry, that will help us. We have been struggling, as you know, to bring the railway industry under control, under cost control as well as under control in terms of ensuring that the franchises do not fragment the railway industry as it has over the last few years. We are struggling with that. We are putting a huge amount of investment into the railway industry. Part of that investment must be to ensure greater access."[65]

40. Improvements to accessibility must be properly co-ordinated, even within one mode of transport. Accessible trains which serve inaccessible stations are of little benefit, as are wheelchair-accessible buses that cannot pull into the kerb to extend their ramps because of parked cars. The Government must use the duties it will re-acquire as a result of the Railways Bill, and the new franchise agreements, to ensure that accessibility is improved in a co-ordinated way on the railway. We recognise the expenditure constraints, however, these heighten the need for wise spending decisions and demonstrable improvements. If infrastructure and rolling-stock improvements are co-ordinated in a common-sense way, disabled travellers will experience significant benefits step-by-step, not only once all the improvements are complete.

Unintended effects

41. We heard reports that a transport authority was considering withdrawing hail and ride bus services in anticipation of the extension of Part III of the DDA to means of transport because buses operating such routes cannot always pull into the kerb sufficiently.[66] The transport authority allegedly feared that this meant hail and ride services were inaccessible and would not comply with the terms of the DDA. We subsequently heard that the transport authority concerned was preparing a policy on hail and ride bus services to make matters clearer, and intended to consult about it.[67] This episode demonstrates the scope for confusion about the DDA's requirements.

42. We also heard that the quest for consistent policies on the access to public transport for disabled people can make individual passengers' situations worse: one train passenger who had previously been able to take his powered scooter on the train was no longer able to do so.[68] The Strategic Rail Authority (SRA) told us that:

"All franchised operators now have revised Disabled People's Protection Policies approved by the SRA, providing a clear and improved framework for customers."[69]

43. However, the Minister and Mr John Yunnie, Head of Disability and Inclusion at the Association of Train Operating Companies (ATOC) both told us that the situation described above arose precisely as a result of the train operating company's Disabled People's Protection Policy (DPPP).[70]

"Charlotte Atkins: […] [i]n drawing up their DPPPs they [the train operating company] had to say whether they were willing to carry powered scooters from all stations. As a result of that—having to say a 'yes' or a 'no'—they then had to decree that they would, in fact, say that they could not carry powered scooters."[71]

44. We welcome the requirement that each train operating company has a clear policy which guarantees particular services for disabled people. However, Leonard Cheshire also told us that:

"Many of these policies, however, list restricted or no access to a large number of stations […] The fact that these policies vary so widely suggest that the DDA is being interpreted inconsistently by the rail industry despite SRA guidance on what is expected under the law."[72]

Different companies face different circumstances, but the lack of consistency is worrying. It is essential that these policies do not make the situation worse for individual passengers by preventing ad hoc arrangements, especially where these have worked well in the past. The station staff who originally helped the passenger we heard about to travel should be commended and encouraged, not told to stop it.

45. Miss Anne Frye OBE, Head of the Mobility and Inclusion Unit at the Department for Transport, explained that the Department and the British Health Care Trades Association had produced a publication called Wheels within Wheels which identifies those powered scooters which can be accommodated on public transport, and that work continued on a labelling scheme to identify such scooters.[73] Mr Yunnie pointed out that a range of rolling stock continues to operate in the UK, and suggested that this complicates matters "when you are faced on the ground with whether Mrs Smith's powered scooter will actually fit on to train operator X's particular train that turns up on the day."[74]

46. Disabled People's Protection Policies (DPPPs) are important because they offer clear statements of guaranteed access. They must be based on consistent interpretation of the DDA across the rail network. They must not preclude the application of common sense. After all, disability discrimination legislation exists to improve access, not impair it. A disabled person who is accommodated on a train one day should not be refused access to the same rolling stock the next. When the Department for Transport assumes the strategic functions of the SRA as a result of the Railways Bill, it must ensure that train operating companies' DPPPs do not undermine sensible, informal solutions on those parts of the rail network where full access cannot yet be guaranteed.

Walking

47. It is easy to overlook walking as a means of transport. Nevertheless, as the Guide Dogs for the Blind Association pointed out, "for those with a visual impairment, it is one of the primary means for getting from A to B."[75] Professor Peter Barker OBE, Chair of the Built Environment Group at DPTAC, was "worried that in the future the local authorities will not get strong enough direction from the Disability Discrimination Bill to ensure that they are working very seriously to improve the street environment."[76]

48. Some developments which appear to represent progress may be a step back for some people. For example, we heard that the road had been raised to the same level as the pavement in the centre of Lowestoft. This may be convenient for many people—indeed it could assist wheelchair users—however it can deter visually impaired people who no longer know where the pavement ends and the road begins.[77] In fact, the Government's best practice guide Inclusive Mobility[78] and its Guidance on the Use of Tactile Paving Surfaces[79] both recommend that a tactile guidance path surface should be used where traditional cues, such as a kerb edge, are not available. However, the guidance does suggest that: "the surface should be used sparingly and only after local consultation with relevant local groups."[80]

49. Professor Barker explained that cyclists were also a hazard to visually impaired people, and that, although encouraging cycling was commendable, ways needed to be found to prevent cyclists and pedestrians becoming entangled.[81] Again, the official guidance suggests the use of a particular type of tactile surface, and contrasting surface colours, to delineate cyclists and pedestrians on shared paths.[82] We are not convinced that this offers sufficient protection to cyclists or disabled people.

50. Walking must not become the poor relation of public and private transport as disabled people's access to transport improves. We welcome the detailed official guidance to help planners incorporate the needs of disabled people into street design. However, the Department for Transport should consider whether tactile paving and colour coding provide a sufficient barrier between visually-impaired people and cyclists on shared cycle track/footways. Visually-impaired people—and indeed all users of shared paths—need to know not only where the dividing line is between pedestrians and cyclists, but also that they are on the correct side of it.

Staff training

51. In our Report last Session, we noted the importance of staff training to accompany the introduction of new duties on transport providers.[83] We and the Joint Committee on the Disability Discrimination Bill also noted the estimated costs to business of providing disability awareness training. The Government's most recent estimates suggest non-recurring costs to the rail, bus and coach, taxi and private hire and vehicle hire sectors of £37.5m and annual recurring costs of £15.65m-15.85m in total.[84]

52. Mr Congdon emphasised the value of staff training to securing access to transport for people with a learning disability, but questioned both its consistency and scope:

"I think perhaps the most important thing over and above that [information and signage] is, frankly, the attitude of staff. That boils down to good quality disability awareness training of staff. It is true to say that there has been retraining of quite a few staff, although it is patchy, but […] it tends to focus on the more obvious issues of physical access and disability and does not focus on not just learning disability but, I would say, all hidden disabilities."[85]

53. Mr Congdon made the valid point that training which instils an understanding of people with learning disabilities also helps other passengers who may be slower to understand.[86] However, he also recognised that training front-line staff might not be sufficient on its own:

"some of this goes deeper than training. People can attend a training course, do the tick box and say they have done the training course and forget everything that they learned. You have to reinforce it throughout the organisation"[87]

Mr Betteridge too thought training in the bus industry would be difficult to guarantee:

"the problem is going to be about enforcement: how on earth do we enforce this? For disabled people whose impairment is invisible to bus drivers I suspect there will be problems for a long time to come."[88]

54. Mrs Ann Bates, Chair of the Rail Working Group at the Disabled Persons Transport Advisory Committee, suggested that disability awareness training was also patchy within the rail industry,[89] but that there really needed to be consistency "because passengers do not see the difference between one train operating company and another."[90]

55. Merseytravel told us that they received many complaints about bus drivers moving off before people had properly taken their seats.[91] Mr Depledge agreed that drivers can use new, more powerful vehicles in a rather less passenger-friendly way.[92] At first sight, this seems like a matter of training, but Mr Depledge assured us that Arriva was very conscious of the problem and understood the need to ensure its drivers were properly trained.[93] Perhaps it is therefore an example of training not resulting in a permanent change in behaviour, in the way Mr Congdon suggested.

56. The quality of training must be assured, and performance must be monitored to ensure it has the desired effect over time. Mr Betteridge mentioned the inclusion of disability awareness training in a National Vocational Qualification for bus drivers, which may prove a step forward.[94] Accreditation of disability awareness training could offer an opportunity for hidden disabilities to be addressed to the satisfaction of organisations like Mencap. Mr Congdon raised the possibility of "mystery shopping", which may prove a useful tool to assess in a systematic way the impact of disability awareness training.[95]

57. However, training is only part of the picture; the needs of people with hidden disabilities should also be better appreciated in vehicle and infrastructure design.

58. Disability awareness training for staff in the transport sector is desirable even now. It will be essential when transport operators are brought within the scope of the Disability Discrimination Act. The costs of this training to the transport industry will remain significant. Taxpayers, shareholders and passengers deserve to see a return for their investment. The training must be accredited and monitored to ensure it is of a consistent quality. However, simply going through the motions of training is not enough: the resulting service must be noticeably better for disabled passengers. The Government, local transport authorities, DPTAC and the DRC should consider whether "mystery shoppers" could be deployed systematically as part of ongoing service monitoring.

59. Staff attitudes have a profound effect on people with learning disabilities. Staff training must therefore be improved to help meet their needs. Providers of disability awareness training should seek greater input from organisations which represent people with hidden disabilities, such as learning disabilities. This could include involving people with learning disabilities in the training so that they can meet members of staff. Customer care training should reinforce the business benefits of sensitivity and understanding.


47   Ev 45 Back

48   Ev 27 Back

49   Ev 28, Ev 35 Back

50   Ev 22 Back

51   Ev 56 Back

52   Ev 55 Back

53   Railways Bill, clause 2 and Schedule 3 [Bill 41 (2004-05)] Back

54   Ev 65 Back

55   Ev 53 Back

56   Disability Discrimination Act 1995, section 20(4)(a) Back

57   Ev 55 Back

58   Ev 23 Back

59   HC 439 [2003-04], paragraph 37 Back

60   Cm 6184, paragraph 15 Back

61   Ev 25 Back

62   Ev 63 Back

63   Ev 65 Back

64   Q 68 Back

65   Q 18 Back

66   Association of London Government, London Bulletin, November/December 2004, p.18 Back

67   Mayor answers to London, Question 1932/2004, http://www.london.gov.uk Back

68   Qq 6-8, 121-122 Back

69   Ev 62 Back

70   Qq 6, 121 Back

71   Q 6 Back

72   Ev 31 Back

73   Q 7 Back

74   Q 122 Back

75   Ev 27 Back

76   Q 75 Back

77   Ev 28 Back

78   Department for Transport, Inclusive mobility: A guide to best practice on access to pedestrian and transport infrastructure, www.dft.gov.uk Back

79   Department for Transport, Guidance on the use of tactile paving surfaces, www.dft.gov.uk Back

80   Department for Transport, Guidance on the use of tactile paving surfaces, www.dft.gov.uk, paragraph 6.1 Back

81   Q 75 Back

82   Department for Transport, Inclusive mobility: A guide to best practice on access to pedestrian and transport infrastructure, www.dft.gov.uk, paragraph 4.5 Back

83   HC 439 [2003-04], paragraphs 27-29 Back

84   Department for Transport, Consultation on lifting the exemption from Part 3 of the Disability Discrimination Act 1995 for Public Transport, Vehicle Hire, Breakdown and Leisure and Tourism Transport Services, section 10. These figures include loss of earnings for the tax and private hire sector, and exclude non-recurring costs of £22m and annual recurring costs of £1.5m in the aviation sector which were included in the draft RIA which accompanied the Draft Bill. Back

85   Q 84 Back

86   Q 85 Back

87   Q 86 Back

88   Q 64 Back

89   Q 62 Back

90   Q 68 Back

91   Ev 70, Q 107 Back

92   Q 107 Back

93   Q 107 Back

94   Q 64 Back

95   Q 84 Back


 
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