House of Commons - Transport

Select Committee on Transport Third Report

4 Extent and cost of improvements

60. As mentioned in paragraph 6, transport infrastructure providers must now take reasonable steps to remove, alter or provide means of avoiding physical features that make it impossible or unreasonably difficult for a disabled person to use a service. The degree of adjustment required turns on the interpretation of the concept of reasonableness. There are no regulations which define "reasonableness", even though the DDA makes provision for them. The DRC Code of Practice on rights of access to goods and services gives many examples of what might be considered reasonable, but notes that:

"What is a reasonable step for a particular service provider to have to take depends on all the circumstances of the case. It will vary according to:

the type of services being provided;
the nature of the service provider and its size and resources;
the effect of the disability on the individual disabled person."[96]

61. We suggested in our previous Report that a lack of clarity about what was "reasonable" would create uncertainty.[97] It also influences the extent and the cost of improvements. The Joint Committee on the Draft Disability Bill recommended that the code should be very clear about what is reasonable for transport operators in each sector and in different circumstances, and concurred with this Committee that the code should be subject to the affirmative procedure.[98] The Government response to these points was not encouraging: it said flatly that the code of practice was a matter for the DRC; added that the Government understood the DRC would include examples; and rejected the suggestion that the affirmative procedure should be used to approve the code.[99]

Extent of improvements

62. If regulations, codes of practice or guidance do not make sufficiently clear which improvements and adjustments can be regarded as "reasonable", the courts must decide. Given the absence of regulations, we do not doubt Mr Bee's assertion that:

"it is important sometimes to get into the courts, particularly the higher courts, to get clear interpretations of the law."[100]

However, we consider it odd that the Government relies on the courts to interpret the meaning of "reasonableness" without guiding that interpretation in regulations; Parliament has given the Secretary of State a power to make regulations which set out the circumstances in which it is reasonable and not reasonable for service providers to have to take steps of a prescribed description.[101] The current approach gives the courts much greater potential freedom to decide what is "reasonable", and also what is not. Of course, the content of the judgments is a matter for the courts. The Government's approach relies heavily on the DRC Code of Practice, which we recognise is subject to negative procedure in both Houses of Parliament. However good they may be, the DRC's Codes of Practice are by their nature illustrative rather than prescriptive. We suggest that the absence of regulations can therefore create uncertainty for transport companies about the level of service they should provide, and for disabled people about the level of service they should expect.

63. A well-publicised case demonstrates that the courts may choose to define reasonableness in terms which relate to the individual case, rather than in a way which can be applied more widely. Mr Keith Roads, a wheelchair user, brought a case against Central Trains with the support of the Disability Rights Commission.[102] Mr Roads wanted to travel from Thetford to Norwich by train. This meant he needed to reach a platform which was inaccessible to him, although the platform for trains running in the opposite direction was accessible. In summary, Central Trains contended it was reasonable to require Mr Roads to travel in the wrong direction by train to the more accessible station at Ely and change trains there in order to travel in the correct direction, while Mr Roads contended a specially adapted taxi should be provided by Central Trains to take him from the accessible side of Thetford station to the otherwise inaccessible platform. Mr Roads won the appeal.

64. However, this case does not mean that station operators will have to provide taxis in all similar circumstances. In the judgment in Mr Roads' case, Lord Justice Sedley concluded that:

"although it [the case] has made it appropriate to explore some significant aspects of the legislation, what it decides is likely to be of limited impact because of the peculiarity of the real or assumed facts on which both the judge below and this court have had to proceed."[103]

65. Bringing cases to court takes time and costs money: Mr Bee told us that Mr Roads' case took around two years and cost approximately £12,000 at county court, with the appeal rising to £25,000.[104] There is no guarantee that detailed parallels can be drawn to similar situations from the judgment in this case. To our minds, this raises a doubt about the value for money of relying so heavily on case law to define the policy. In a successful case, like Mr Roads', the claimant's costs are usually recovered from the transport company. This could reduce the amount of money which the company is able to spend on accessibility improvements. If the defendant's costs are recovered from the DRC, this could reduce the amount of money which the DRC is able to spend on mediation. By the time opportunity costs and court time are taken into account, we wonder whether prescriptive regulations might offer better value for money than serial court cases. Of course, regulations can be taken to judicial review, and there might still be some court cases, but the trade-off might include greater certainty for transport providers and passengers, as well as a reduction in the DRC workload.

66. Court judgments on the "reasonableness" of accessibility improvements tend to provide certainty only in a specific case. We urge the Government to reconsider whether prescriptive regulations should be made to define more clearly what adjustments are reasonable in various parts of the transport sector. Without such leadership, we fear that Parliament and Government will lose control of both the extent and cost of making public transport accessible to disabled people. In our view, the determination of exactly what is "reasonable" is not a mere detail which could benefit from occasional clarification; it involves fundamental policy decisions which establish just how accessible transport is to disabled people.

Costs

67. The Government's failure to determine whether it is reasonable for disabled people who need help getting on and off trains to book their journey in advance demonstrates that a lack of leadership can lead to uncertainty about costs.

68. Currently, rail passengers who wish to guarantee assistance when they get on and off the train must book 24 hours in advance. Wheelchair users often require such help. The book-ahead requirement is supposed to allow staff to be in the right place to assist the passenger. (It is important to note that, of the 2,500 or so train stations on the rail network, approximately 1,000 are unstaffed and a further 1,000 or so are only staffed at certain times.)[105] DPTAC consider the book-ahead requirement to be unfair,[106] and Mrs Bates told us that:

"I would prefer not to book ahead at all. I do not see why we should book ahead at all, but I am a pragmatist and in the real world out there I would like to have some assurance that when I get on a train I stand just some chance of getting off it. […] Ideally, I would like it not to be so, but in the current climate I believe it is best to book ahead."[107]

69. In our previous Report, we said that this matter should be made clear by Government.[108] The Government response led us to believe we had perhaps not been sufficiently clear:

"Part 3 of the DDA already covers access to railway stations and we would expect the issue of advanced booking to be covered in the Disability Rights Commission's Code of Practice."[109]

When the Joint Committee considered this issue, it concluded that:

"Given the importance of transport for disabled people, and the costs involved in removing the 24-book-ahead requirement, the Committee recommends that the DRC should be very clear about what is a reasonable level of service for operators to provide in this regard."[110]

In its response to the Joint Committee, the Government once again appeared to pass to the DRC sole responsibility for providing initial guidance about what might be considered reasonable:

"The Code of Practice will be a matter for the DRC. We understand that the question of what is a reasonable level of service in relation to book-ahead requirements is one that the DRC is discussing with the industry."[111]

70. The question of the "reasonableness" of removing the book-ahead requirement cannot be divorced from the costs. One way of removing the requirement would be to staff a greater proportion of stations during opening hours. The Government's regulatory impact assessment (RIA) suggests that the non-recurring costs to the rail industry of doing so would be "substantial" (but does not quantify them) and that recurring costs would be between £45 million and £135 million each year, depending on the percentage of stations to be staffed.[112]

71. ATOC expressed concern at the cost to train operating companies of accessibility improvements, primarily to infrastructure, and suggested that these must be built-in to new franchise agreements.[113] Mr David Mapp, Commercial Director at ATOC, observed:

"If £2 billion worth of investment was built into franchise agreements, then yes, £2 billion worth of investment could be made. In that sense, it is not just an issue for train operating companies; it is also a public policy issue. […] There is a huge amount of work that needs to be done to make the network accessible. Would that investment pay a pure commercial return? The answer is that in many cases it would not pay a pure commercial return."[114]

Given the impact of franchise agreements on the public purse, we agree with Mr Mapp that the amount train operating companies spend on accessibility improvements is indeed a public policy issue. Yet the Government does not pronounce on such issues: in the case of the book-ahead requirement, the consultation paper emphasises that train operators will have to make their own choices based on the DRC code of practice and the courts will then determine what is reasonable:

"[A] service provider must take such steps as are reasonable to change the practice, policy or procedure so that it no longer has the effect of making it impossible or unreasonably difficult for a disabled person to use the service. Whilst train operators might be able to justify not providing access without notice, or at all, to some services such as those at unstaffed stations or at stations where there is no level access, they will need to satisfy themselves on a case by case basis that their actions are justified. Ultimately, where a case is pursued, it will be for the courts to determine taking into account the specific circumstances."[115]

72. Since no view is expressed in the Government consultation paper on whether the abolition of the book-ahead requirement is likely to be considered reasonable, we do not understand how the Department is able to conclude with such certainty in the letter which accompanies the draft regulations and RIA that "The results [of the RIA] indicate that the costs of the new duties will not present a significant additional burden for transport providers."[116] The Government presumably has some idea of what it might consider reasonable, but this may or may not accord with the view of the courts should this matter come before them. The RIA shows that the cost of total abolition of the book-ahead requirement would be over double the cost of staffing 25% of currently unstaffed stations and 50% of currently part-staffed stations.[117] As a matter of public policy the Government should retain some control over the costs to the train industry by determining in regulations the reasonableness of the book-ahead requirement.

73. The Government has failed to convince us that it is better to leave the determination of what constitutes a "reasonable" improvement to the DRC code of practice and, ultimately, the courts. We have no doubt that the DRC code of practice will be useful, but cost control, particularly in the rail industry, is one reason for our belief that it would be better to prescribe reasonable adjustments in regulations. The example of the book-ahead requirement demonstrates the wide variation in costs between different policy options. The rail industry receives significant subsidy, and franchise levels have an effect on the public purse. While legal challenges to regulations can never be ruled out, the Government could keep a tighter grip on the costs by determining the requirements in more detail in the first place.

96 http://www.drc-gb.org.uk/open4all/law/CodeofPractice.doc, paragraph 4.21 Back

97 HC 439 [2003-04], paragraph 22-25 Back

98 HC 352-I [2003-04], paragraph 141 Back

99 Cm 6184, paragraphs R21 and R22 Back

100 Q 76 Back

101 Disability Discrimination Act 1995, section 21(5) Back

102 [2004] EWCA Civ 1541 Back

103 [2004] EWCA Civ 1541, CA (Civ Div) (Buxton LJ, Sedley LJ, Jacob LJ) 5 November 2004, paragraph 36 Back

104 Qq 76, 78 Back

105 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, paragraph 10.1.9 Back

106 Ev 57 Back

107 Q 60-61 Back