|
| |
| |
| |
(e) | dealing with failure to comply with a specified condition; |
| |
(f) | for the examination of rail vehicles in respect of which applications |
| |
| |
(g) | with respect to the issue of copies of certificates in place of those |
| |
which have been lost or destroyed. |
| |
Regulations as to compliance assessments |
| |
3 (1) | Regulations may make provision as to compliance assessments. |
| |
| |
(a) | may make provision as to the person who has to have carried out the |
| |
| |
(b) | may (in particular) require that the assessment be one carried out by |
| |
a person who has been appointed by the Secretary of State to carry |
| |
out compliance assessments (an “appointed assessor”). |
| |
(3) | For the purposes of any provisions in the regulations made by virtue of sub- |
| |
paragraph (2)(b), the regulations— |
| |
(a) | may make provision about appointments of appointed assessors, |
| |
including (in particular)— |
| |
(i) | provision for an appointment to be on application or |
| |
otherwise than on application; |
| |
(ii) | provision as to who may be appointed; |
| |
(iii) | provision as to the form of applications for appointment; |
| |
(iv) | provision as to information to be supplied with applications |
| |
| |
(v) | provision as to terms and conditions, or the period or |
| |
termination, of an appointment; |
| |
(vi) | provision for terms and conditions of an appointment, |
| |
including any as to its period or termination, to be as agreed |
| |
by the Secretary of State when making the appointment; |
| |
(b) | may make provision authorising an appointed assessor to charge |
| |
fees in connection with, or incidental to, the carrying out of a |
| |
compliance assessment, including (in particular)— |
| |
(i) | provision restricting the amount of a fee; |
| |
(ii) | provision authorising fees that contain a profit element; |
| |
(iii) | provision for advance payment of fees; |
| |
(c) | may make provision requiring an appointed assessor to carry out a |
| |
compliance assessment, and to do so in accordance with any |
| |
procedures that may be prescribed, if prescribed conditions (which |
| |
may include conditions as to the payment of fees to the assessor) are |
| |
| |
(d) | must make provision for the referral to the Secretary of State of |
| |
| |
(i) | an appointed assessor carrying out a compliance assessment, |
| |
| |
(ii) | the person who requested the assessment, |
| |
| relating to which provisions of rail vehicle accessibility regulations |
| |
the vehicle is to be assessed against or to what amounts to conformity |
| |
with any of those provisions. |
| |
| |
|
| |
| |
| |
| |
899. Paragraphs 5 to 12 make provision for a civil enforcement regime which enables |
| |
penalties to be levied for non-compliance with rail vehicle accessibility regulations. |
| |
Penalty for using rail vehicle that does not conform with accessibility regulations: paragraph 5 |
| |
| |
900. This paragraph sets out the procedure to be followed by the Secretary of State in |
| |
respect of an operator of a regulated rail vehicle which appears not to comply with the |
| |
construction requirements of rail vehicle accessibility regulations. The procedure involves the |
| |
issue of “improvement” and “final” notices and, if the vehicle is used despite still being non- |
| |
compliant with those elements of rail vehicle accessibility regulations with which it is required |
| |
to conform, the Secretary of State may impose a penalty. The various timescales leading up to |
| |
the imposition of the penalty are to be set out in regulations. |
| |
| |
901. This paragraph replicates the provisions of section 47E of the Disability |
| |
Discrimination Act 1995 inserted by the Disability Discrimination Act 2005 (not yet in force). |
| |
Penalty for using rail vehicle otherwise than in conformity with accessibility regulations: |
| |
| |
| |
902. This paragraph makes similar provisions to paragraph 5 but in respect of vehicles used |
| |
in a way which does not comply with the operational, rather than technical, requirements of |
| |
accessibility regulations. For example, a regulated rail vehicle may have appropriate |
| |
equipment to assist a disabled person in getting on or off the vehicle, such as a lift or ramp, but |
| |
no member of staff is available to operate it. |
| |
| |
903. This paragraph replicates the provisions of section 47F of the Disability |
| |
Discrimination Act 1995 inserted by the Disability Discrimination Act 2005 (not yet in force). |
| |
Inspection of rail vehicles: paragraph 7 |
| |
| |
904. This paragraph sets out powers of inspection, to be available where the Secretary of |
| |
State has reasonable grounds for suspecting that a regulated rail vehicle does not conform with |
| |
those provisions of accessibility regulations with which it is required to conform. The |
| |
paragraph also grants similar powers of inspection following the issuing of notices under |
| |
paragraph 6. “Inspectors” are empowered to examine and test such rail vehicles and to enter |
| |
premises at which it is believed they are kept, and to enter them. If an inspector is |
| |
intentionally obstructed in the exercise of these powers by an operator, or someone acting on |
| |
the operator’s behalf, the Secretary of State may, in certain circumstances, impose a penalty on |
| |
| |
| |
905. This paragraph replicates the provisions of section 47G of the Disability |
| |
Discrimination Act 1995 inserted by the Disability Discrimination Act 2005 (not yet in force). |
| |
| |
|
| |
| |
| |
(4) | For the purposes of sub-paragraph (3)(b) to (d) a compliance assessment |
| |
includes pre-assessment activities (for example, a consideration of how the |
| |
outcome of a compliance assessment would be affected by the carrying out |
| |
of particular proposed work). |
| |
Fees in respect of compliance certificates |
| |
4 (1) | The Secretary of State may charge such fees, payable at such times, as are |
| |
prescribed in respect of— |
| |
(a) | applications for, and the issue of, compliance certificates; |
| |
(b) | copies of compliance certificates; |
| |
(c) | reviews under paragraph 1(7); |
| |
(d) | referrals of disputes under provision made by virtue of paragraph |
| |
| |
(2) | Fees received by the Secretary of State must be paid into the Consolidated |
| |
| |
(3) | Regulations under this paragraph may make provision for the repayment of |
| |
fees, in whole or in part, in such circumstances as are prescribed. |
| |
(4) | Before making regulations under this paragraph the Secretary of State must |
| |
consult such representative organisations as the Secretary of State thinks fit. |
| |
Penalty for using rail vehicle that does not conform with accessibility regulations |
| |
5 (1) | If the Secretary of State thinks that a regulated rail vehicle does not conform |
| |
with a provision of rail vehicle accessibility regulations with which it is |
| |
required to conform, the Secretary of State may give the operator of the |
| |
| |
(a) | identifying the vehicle, the provision and how the vehicle fails to |
| |
| |
(b) | specifying the improvement deadline. |
| |
(2) | The improvement deadline may not be earlier than the end of the prescribed |
| |
period beginning with the day the notice is given. |
| |
(3) | Sub-paragraph (4) applies if— |
| |
(a) | the Secretary of State has given a notice under sub-paragraph (1), |
| |
(b) | the improvement deadline specified in the notice has passed, and |
| |
(c) | the Secretary of State thinks that the vehicle still does not conform |
| |
with the provision identified in the notice. |
| |
(4) | The Secretary of State may give the operator a further notice— |
| |
(a) | identifying the vehicle, the provision and how the vehicle fails to |
| |
| |
(b) | specifying the final deadline. |
| |
(5) | The final deadline may not be earlier than the end of the prescribed period |
| |
beginning with the day the further notice is given. |
| |
(6) | The Secretary of State may require the operator to pay a penalty if— |
| |
(a) | the Secretary of State has given notice under sub-paragraph (4), and |
| |
(b) | the vehicle is used for carriage at a time after the final deadline when |
| |
the vehicle does not conform with the provision identified in the |
| |
| |
| |
|
| |
| |
| |
Supplementary powers: paragraph 8 |
| |
| |
906. This paragraph allows the Secretary of State to issue a notice to a rail vehicle operator |
| |
requiring them to provide information by a specified deadline to enable a rail vehicle which is |
| |
described in that notice to be identified. A penalty may be imposed on the recipient of such a |
| |
notice if they fail to provide the information required by the deadline, which must be a |
| |
minimum of 14 days from the date on which the notice is given. |
| |
907. Provision is also included to incentivise compliance with notices served under |
| |
paragraphs 5 or 6 (notices requiring rail operators to make vehicles, or their use, compliant |
| |
with accessibility regulations). Operators may be required to state what steps they are taking |
| |
to comply with such notices. |
| |
908. In default of providing this information, the Secretary of State is empowered to |
| |
proceed to the “further notice” stage under paragraphs 5 or 6, a precursor to charging a penalty |
| |
| |
| |
909. This paragraph replicates the provisions of section 47H of the Disability |
| |
Discrimination Act 1995 as inserted by the Disability Discrimination Act 2005 (not yet in |
| |
| |
Penalties: amount, due date and recovery: paragraph 9 |
| |
| |
910. This paragraph makes provision in relation to the amount, due date and recovery of |
| |
penalties imposed under paragraphs 1 and 5 to 8. It stipulates that the maximum penalty |
| |
cannot exceed the amount prescribed in regulations, or 10 per cent of the turnover of the rail |
| |
vehicle operator subject to the penalty, whichever is the lesser amount. “Turnover” must be |
| |
determined in accordance with provisions set out in regulations and the Secretary of State is |
| |
able to take court proceedings to recover any penalty payable to him. All penalties must be |
| |
paid into the Consolidated Fund. |
| |
| |
911. This paragraph replicates section 47J (1) to (7) of the Disability Discrimination Act |
| |
1995 inserted by the Disability Discrimination Act 2005 (not yet in force). The other aspects |
| |
of section 47 are replicated at paragraph 10. |
| |
Penalties: code of practice: paragraph 10 |
| |
| |
912. This paragraph requires the Secretary of State to issue a code of practice to set out |
| |
matters that must be considered in determining the level of a penalty. The Secretary of State is |
| |
required to take account of the code when imposing a penalty under this Schedule or in |
| |
considering any objections received to the imposition of a penalty. So is a court in considering |
| |
an appeal against a penalty under paragraph 12. |
| |
913. Before issuing either the first or a revised code of practice, the Secretary of State must |
| |
lay a draft before Parliament, and may bring it into operation by order. |
| |
| |
|
| |
| |
| |
Penalty for using rail vehicle otherwise than in conformity with accessibility regulations |
| |
6 (1) | If the Secretary of State thinks that a regulated rail vehicle has been used for |
| |
carriage otherwise than in conformity with a provision of rail vehicle |
| |
accessibility regulations with which the use of the vehicle is required to |
| |
conform, the Secretary of State may give the operator of the vehicle a |
| |
| |
(a) | identifying the provision and how it was breached; |
| |
(b) | identifying each vehicle operated by the operator that is covered by |
| |
| |
(c) | specifying the improvement deadline. |
| |
(2) | The improvement deadline may not be earlier than the end of the prescribed |
| |
period beginning with the day the notice is given. |
| |
(3) | Sub-paragraph (4) applies if— |
| |
(a) | the Secretary of State has given a notice under sub-paragraph (1), |
| |
(b) | the improvement deadline specified in the notice has passed, and |
| |
(c) | the Secretary of State thinks that a vehicle covered by the notice has |
| |
after that deadline been used for carriage otherwise than in |
| |
conformity with the provision identified in the notice. |
| |
(4) | The Secretary of State may give the operator a further notice— |
| |
(a) | identifying the provision and how it was breached; |
| |
(b) | identifying each vehicle operated by the operator that is covered by |
| |
| |
(c) | specifying the final deadline. |
| |
(5) | The final deadline may not be earlier than the end of the prescribed period |
| |
beginning with the day the further notice is given. |
| |
(6) | The Secretary of State may require the operator to pay a penalty if— |
| |
(a) | the Secretary of State has given notice under sub-paragraph (4), and |
| |
(b) | a vehicle covered by the notice is at a time after the final deadline |
| |
used for carriage otherwise than in conformity with the provision |
| |
identified in the notice. |
| |
Inspection of rail vehicles |
| |
7 (1) | If the condition in sub-paragraph (2) is satisfied, a person authorised by the |
| |
Secretary of State (an “inspector”) may inspect a regulated rail vehicle for |
| |
conformity with provisions of the accessibility regulations with which it is |
| |
| |
(2) | The condition is that the Secretary of State— |
| |
(a) | has reasonable grounds for suspecting that the vehicle does not |
| |
conform with such provisions, or |
| |
(b) | has given a notice under paragraph 5(1) or (4) relating to the vehicle. |
| |
(3) | For the purpose of exercising the power under sub-paragraph (1) an |
| |
| |
(a) | enter premises if the inspector has reasonable grounds for suspecting |
| |
that the vehicle is at the premises; |
| |
| |
| |
|
| |
| |
| |
| |
914. This paragraph replicates the remaining provisions of section 47J of the Disability |
| |
Discrimination Act 1995 inserted by the Disability Discrimination Act 2005 (not yet in force) |
| |
which are not replicated in paragraph 9. |
| |
Penalties: procedure: paragraph 11 |
| |
| |
915. This paragraph sets out the procedure for the imposition of penalties under this |
| |
Schedule. In particular it specifies the information which the Secretary of State must provide |
| |
when notifying a rail vehicle operator that they are liable to a penalty, and outlines the |
| |
operator’s right to object to the imposition, or amount of, a penalty. Should an objection be |
| |
received, the Secretary of State is under an obligation to consider the objection and take |
| |
| |
| |
916. This paragraph replicates the provisions of section 47K of the Disability |
| |
Discrimination Act 1995 inserted by the Disability Discrimination Act 2005 (not yet in force). |
| |
Penalties: appeal: paragraph 12 |
| |
| |
917. This paragraph sets out the right of an operator, on whom a penalty has been imposed, |
| |
to appeal to a court on the grounds that either they are not liable to a penalty, or that the |
| |
amount is too high. An appeal under this section is a re-hearing of the Secretary of State’s |
| |
original decision to impose a penalty, and may be brought whether or not the operator has |
| |
given a notice of objection (under paragraph 11), or the Secretary of State has already reduced |
| |
| |
| |
918. This paragraph replicates the provisions of section 47L of the Disability |
| |
Discrimination Act 1995 inserted by the Disability Discrimination Act 2005 (not yet in force). |
| |
Forgery etc.: paragraph 13 |
| |
| |
919. This paragraph makes it a criminal offence for a person, with intent to deceive, to |
| |
forge, alter, use, or lend a compliance certificate, to allow one to be used by another person, to |
| |
make or have possession of a document which closely resembles one, or to knowingly make a |
| |
false statement for the purpose of obtaining one. |
| |
920. It also makes it a criminal offence for a person to impersonate an inspector authorised |
| |
by the Secretary of State under paragraph 7. |
| |
| |
921. This paragraph replicates elements of the provisions of section 49 of the Disability |
| |
Discrimination Act 1995 inserted by the Disability Discrimination Act 2005 (not yet in force). |
| |
| |
|
| |
| |
| |
(c) | require any person to afford such facilities and assistance with |
| |
respect to matters under the person’s control as are necessary to |
| |
enable the inspector to exercise the power. |
| |
(4) | An inspector must, if required to do so, produce evidence of the Secretary of |
| |
| |
(5) | For the purposes of paragraph 5(1) the Secretary of State may draw such |
| |
inferences as appear proper from any obstruction of the exercise of the |
| |
power under sub-paragraph (1). |
| |
(6) | Sub-paragraphs (7) and (8) apply if the power under sub-paragraph (1) is |
| |
exercisable by virtue of sub-paragraph (2)(b). |
| |
(7) | The Secretary of State may treat paragraph 5(3)(c) as satisfied in relation to |
| |
| |
(a) | the inspector takes steps to exercise the power after a notice is given |
| |
under paragraph 5(1) but before a notice is given under paragraph |
| |
| |
(b) | a person obstructs the exercise of the power. |
| |
(8) | The Secretary of State may require the operator of a vehicle to pay a penalty |
| |
| |
(a) | the operator, or a person acting on the operator’s behalf, |
| |
intentionally obstructs the exercise of the power, and |
| |
(b) | the obstruction occurs after a notice has been given under paragraph |
| |
5(4) in respect of the vehicle. |
| |
(9) | In this paragraph “inspect” includes test. |
| |
| |
8 (1) | For the purposes of paragraph 5 the Secretary of State may give notice to a |
| |
person requiring the person to supply the Secretary of State by a time |
| |
specified in the notice with a vehicle number or other identifier for a rail |
| |
| |
(a) | of which the person is the operator, and |
| |
(b) | which is specified in the notice. |
| |
(2) | The time specified may not be earlier than the end of the period of 14 days |
| |
beginning with the day the notice is given. |
| |
(3) | If the person does not comply with the notice, the Secretary of State may |
| |
require the person to pay a penalty. |
| |
(4) | If the Secretary of State has given a notice to a person under paragraph 5(1) |
| |
or 6(1), the Secretary of State may request the person to supply the Secretary |
| |
of State, by a time specified in the request, with a statement detailing the |
| |
steps taken in response to the notice. |
| |
(5) | The time specified may not be earlier than the improvement deadline. |
| |
(6) | The Secretary of State may treat paragraph 5(3)(c) or (as the case may be) |
| |
paragraph 6(3)(c) as being satisfied in relation to a vehicle if a request under |
| |
sub-paragraph (4) is not complied with by the time specified. |
| |
| |
|
