Memorandum by the Disability Rights Commission
(DAF 19)
DISABLED PEOPLE'S ACCESS TO TRANSPORT
INTRODUCTION
The DRC welcomes this opportunity to submit
evidence to the Transport Select Committee on the following questions.
We will address each of the Committee's questions as set out in
your call for evidence:
— What progress is being made in ensuring
that disabled people have proper access to transport?
— Are the provisions of the Disability
Discrimination Act being interpreted in unexpected ways?
— Is accessibility coming second-best
to other considerations such as Health and Safety? Where should
the balance lie?
— Is there any truth in the suggestions
that services are being "levelled down" rather than
"levelled up"?
WHAT PROGRESS
IS BEING
MADE IN
ENSURING THAT
DISABLED PEOPLE
HAVE PROPER
ACCESS TO
TRANSPORT?
The DRC acknowledges that progress in improving
access to transport services for disabled people will inevitably
be slower than we would like because of the long life span of
much of the infrastructure of the industry.
We have been encouraged by the continuing introduction
of new buses and trains which are compliant with access regulations
under Part 5 of the DDA. However, we have been disappointed by
the further delay in the removal of "slam door" trains
in the South East of England.
We believe that there are three steps which
the Government could take to improve the situation.
Firstly, it is a source of acute disappointment
to the DRC that the Government has not fulfilled its commitment
to introduce the Disability Discrimination Bill into the House
of Lords before the end of the Parliamentary session. The clauses
in the Bill which will remove the exemption of much of the transport
industry from duties under Part 3 of the DDA in relation to the
provision of services on vehicles will play an important role
in improving access to transport services for disabled people.
We continue to receive calls to our Helpline from disabled people
who have been refused access to vehicles which are accessible
to them. This happens particularly with regard to buses, despite
conduct regulations which prohibit drivers behaving in this way.
We believe that the removal of the "transport exemption"
will be an important step to stopping this behaviour.
Secondly, the DRC is disappointed by the continuing
delay in introducing amendments to the Public Service Vehicle
Accessibility Regulations 2000 to require the fitting of equipment
which provide audible and visual announcements on buses. These
are particularly of benefit to people with visual and hearing
impairments. This equipment was the subject of an apparently successful
pilot exercise over two years ago and the DRC believes that the
regulations should be amended to make the fitting of such equipment
mandatory on all new buses.
Thirdly, the DRC is concerned that the Government
has still to issue accessibility regulations for Taxis under Part
5 of the DDA. We acknowledge the difficulties involved in issuing
regulations which will apply to the whole of the UK, and therefore
welcomed the Government's policy statement last year about their
approach to resolving this problem. There was disappointment that
the Government felt it could only introduce the policy in 2010,
but it is now a matter of concern that unless access regulations
are issued shortly this deadline will have to be further deferred
in order to give manufacturers sufficient time to produce compliant
vehicles.
ARE THE
PROVISIONS OF
THE DISABILITY
DISCRIMINATION ACT
BEING INTERPRETED
IN UNEXPECTED
WAYS?
Because of the transport exemption to Part 3
of the DDA "in so far as it consists of the use of a mode
of transport" significant aspects of the provision of transport
services remain outside the scope of the legislation.
Nevertheless transport providers do have duties
with regard to the provision of what is loosely termed "transport
infrastructure". This includes not only access to airports,
ferry terminals and train and bus stations, but also ticketing
arrangements and the provision of information services.
The DRC has supported two cases under these
provisions and is pleased to have been successful with both.
In the case of Roads v Central Trains Judge
Sedley QC, in the Royal Courts of Justice, ruled that train operators
Central Trains acted unlawfully by not paying the cost of Mr Roads'
cab fare to drive him to the other side of the station at Thetford
because of its inaccessible platform. Central Trains had said
that Mr Roads could access the platform by travelling to Ely in
the opposite direction in order to arrive back at the accessible
station platform.
This is a landmark ruling under the Disability
Discrimination Act (DDA) 1999 duties, whereby reasonable adjustments
are required to, amongst other things, provide a reasonable alternative
method of service where a physical feature makes it "impossible
or unreasonably difficult" for disabled people to use a service.
Although the judgment dealt with the particular
and somewhat unusual facts, the Court did address for the first
time the unique duty to make "reasonable adjustments"
contained in section 21 of the Act. The Court endorsed the approach
in In Re Holy Cross v Pershore [2002] Fam 1 Cons Ct (Worcester)
at para 105, saying that the policy of the Act is to "provide
access to a service as close as it is reasonably possible to get
to the standard normally offered to the public at large".
In addition, the judgment made clear that making an adjustment
will not necessarily be sufficient to meet the duty where there
is another less demeaning or onerous one available, as was the
case here.
The judgement went on to say that whilst the
section 19b reasonable adjustment duty is owed to individuals,
the s 21 duty is owed to disabled people at large, thus endorsing
the "anticipatory" nature of the duty, and the fact
that service providers cannot just wait until a disabled person
approaches them before making adjustments.
Central Trains defence was hampered by their
failure to prepare a Disabled Person's Protection Policy (DPPP)
to the deadline set by Strategic Rail Authority. In a review of
DPPPs published in February 2003 DPTAC raised strong concerns
about the quality of the policies being developed by rail companies,
many of whom did not even have a basic knowledge of the accessibility
of the stations under their control. ("We are concerned that
some in the industry do not recognise access for disabled people
as an integral part of running a modern railway. This does not
mean all stations need to comply with the letter of the Code but
it should mean all operators are complying with the spirit of
the Disability Discrimination Act 1995 by working towards the
removal of barriers for disabled people.") According to figures
from the Strategic Rail Authority, they estimate that some 60%
of stations are currently inaccessible. These figures are backed
up by independent research from Tripscope (A charity which provides
information to disabled people about access to transport services).
The DRC is disappointed by the way in which
the rail industry has approached its duty under Part 3 of the
DDA to make reasonable physical adjustments to remove barriers
which prevent disabled people using their services. Investment
in the national railways infrastructure rose from £939 million
pounds in 1992-93 to £3,756 million pounds in 2002-03. In
the light of this investment it is disappointing that such a large
proportion of the network remains inaccessible to disabled people.
We are disappointed that the Strategic Rail
Authority has yet to publish its strategy to improve accessibility
of the rail network. While acknowledging the pressures under which
they work we would have hoped that the SRA would provide a strategic
lead to the rail industry on this issue. As we point out above
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.
The other DDA case which the DRC supported was
the widely reported case against Ryanair's policy of charging
for the use of a wheelchair at Stansted Airport. In Ross v
Ryanair & Stansted Airport Limited, Ryanair were found
to have discriminated against Mr Ross by Central London County
Court. They have appealed to the Court of Appeal saying that they
had not discriminated and it was the Airport who should have provided
the free wheelchair because it was they who were providing the
services at the airport.
IS ACCESSIBILITY
COMING SECOND-BEST
TO OTHER
CONSIDERATIONS, SUCH
AS HEALTH
AND SAFETY?
WHERE SHOULD
THE BALANCE
LIE?
The DRC recognises that Health and Safety is
of vital importance in the provision of public transport services.
We would not wish to see disabled people put at undue risk in
order to ensure that they have access to these services. Nevertheless
we are aware of cases where concerns about health and safety have
been raised in a way which we believe is inappropriate. Unfortunately,
to date this has happened in circumstances which are covered by
the transport exemption, and we have been unable to challenge
these decisions in the Courts.
The DRC has received a number of complaints
where deaf people have been prevented from flying on planes operated
by both Iberia Airlines and Easyjet. In each case the reason given
has been that pilots believe these passengers will be unable to
understand safety instructions in the event of an emergency.
We believe that this view is mistaken. It seems
strange to us that a pilot should consider a deaf person, who
is used to coping in circumstances where information is not communicated
to them clearly, should be considered at greater risk than a foreign
passenger who cannot understand the language used by the airline,
and who of course is much less familiar with the experience of
having communication difficulties. We believe that airlines could
do more to make safety announcements more accessible to people
with hearing difficulties. However there is no justification for
the decision to eject these passengers from the plane.
We are also concerned about the policy of one
ferry operator to refuse to allow Guide Dog Owners to be accompanied
by their dog whilst on board. Many reasons for this policy have
been quoted including dogs being sea sick, becoming unstable or
even jumping over board. The DRC would question the basis for
these assumptions which are not supported by any form of evidence.
Indeed many of these assumptions could of course be levelled at
the human passenger, particularly when the consumption of alcohol
is a factor.
The Government remains committed to a voluntary
approach to serving disabled people on both airlines and shipping.
However, it is the DRC's view that the voluntary approach has
been repeatedly shown to fail. For many years before the DDA was
passed Governments supported voluntary efforts to remove the discrimination
faced by disabled people. In the end they acknowledged that legislation
was required, and we are confident that it is only a matter of
time before they will reach the same conclusion with regard to
air and maritime operators. However, until they do so disabled
people continue to be excluded from these services and regularly
face humiliating experiences.
IS THERE
ANY TRUTH
IN THE
SUGGESTIONS THAT
SERVICES ARE
BEING "LEVELLED
DOWN" RATHER
THAN "LEVELLED
UP "?
The DRC is not at this stage aware of this happening
within the transport sector. However, we believe that if this
is to be avoided transport provision must not be seen in isolation.
Transport is a vital component of an inclusive environment which
will enable disabled people to fulfil their potential.
Inclusive environments are made up of many elements—including
the attitudes of individuals and society; the planning, design
and management of services; transport; communications; and buildings
and spaces. Inclusive environments accommodate and provide solutions
that enable all citizens to participate in mainstream activities
equally, independently, with choice and with dignity.
If they are to be truly sustainable, communities
must be planned, designed, managed and maintained to enable everyone
to live, work, learn and participate in the activities they choose
without being confronted by barriers that prevent them from doing
so.
The provision of accessible infrastructure is
fundamental to achieving a successfully sustainable community.
Key services such as hospitals, local GP surgeries, schools, pharmacies,
post offices and grocers all serve to anchor communities. Recent
years have witnessed the gradual disappearance of some of these
services from communities through closure or centralisation of
the service, which has greatly increased the need to travel.
If accessible, affordable and reliable transport
is not available, many disabled people will be denied access to
services and to employment opportunities. Research published in
2003[7]by
Leonard Cheshire revealed that the unavailability of accessible
transport had a negative impact on disabled people's employment
opportunities, access to health care and considerably reduced
contact with friends and family.
The Government itself has recognised that a
key barrier to inclusion is the availability and accessibility
of transport and that inaccessible transport problems "undermine
Government objectives that are essential to combat poverty and
social exclusion".[8]
Local transport plans (LTPs) are expected to
combine various concerns such as land use and accessibility planning
along with transport provision to produce a coordinated and unified
approach. Emphasis is placed on the value of quality contracts
and statutory quality partnerships. Clearly such infrastructure
planning should involve private sector service providers as partners,
but many of those partners will be driven by commercial forces
beyond the boundaries of the local, regional or even national
area and will make investment decisions accordingly.
What is unclear is the extent to which regional
and local authorities will be able to guarantee that existing
and newly planned services will be sustained and not withdrawn
over time. Moreover, how will authorities be able to confidently
introduce new networks or expand existing networks to underpin
economic growth, without the powers to govern service delivery?
The DRC would like to see Government introduce
a comprehensive national transport strategy that fully recognises
that accessible, affordable and available transport is the lynchpin
of economic growth linking people to employment, skills, services
and the economy. The strategy should establish clear objectives
for the growth of the nations transport infrastructure across
all modes at local, regional and national levels. It should also
empower local transport bodies to plan, govern and invest in the
development of comprehensive local transport networks.
Disability Rights Commission
22 November 2004
7 Campion et al (2003) "Mind the Gap"
Social Exclusion Report, Leonard Cheshire, London 2003. Back
8
Social Exclusion Unit Making the Connection: Transport and
Social Exclusion February 2003 (p 2). Back
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