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Schedule 20 — Rail vehicle accessibility: compliance

 
 

(e)   

dealing with failure to comply with a specified condition;

(f)   

for the examination of rail vehicles in respect of which applications

have been made;

(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.

      (2)  

The regulations—

(a)   

may make provision as to the person who has to have carried out the

assessment;

(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

for appointment;

(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

satisfied;

(d)   

must make provision for the referral to the Secretary of State of

disputes between—

(i)   

an appointed assessor carrying out a compliance assessment,

and

(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.

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Schedule 20 — Rail vehicle accessibility: compliance

 
 

Paragraphs 5 to 12

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

Effect

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.

Background

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:

paragraph 6

Effect

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.

Background

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

Effect

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

the operator.

Background

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).

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Schedule 20 — Rail vehicle accessibility: compliance

 
 

      (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

3(3)(d).

      (2)  

Fees received by the Secretary of State must be paid into the Consolidated

Fund.

      (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

vehicle a notice—

(a)   

identifying the vehicle, the provision and how the vehicle fails to

conform;

(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

conform;

(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

notice.

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Schedule 20 — Rail vehicle accessibility: compliance

 
 

Supplementary powers: paragraph 8

Effect

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

for non-compliance.

Background

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

force).

Penalties: amount, due date and recovery: paragraph 9

Effect

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.

Background

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

Effect

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.

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Schedule 20 — Rail vehicle accessibility: compliance

 
 

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

notice—

(a)   

identifying the provision and how it was breached;

(b)   

identifying each vehicle operated by the operator that is covered by

the notice;

(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

the further notice;

(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

required to conform.

      (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

inspector may—

(a)   

enter premises if the inspector has reasonable grounds for suspecting

that the vehicle is at the premises;

(b)   

enter the vehicle;

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Schedule 20 — Rail vehicle accessibility: compliance

 
 

Background

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

Effect

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

appropriate action.

916. Background

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

Effect

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

a penalty.

Background

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

Effect

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.

Background

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).

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Schedule 20 — Rail vehicle accessibility: compliance

 
 

(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

State’s authorisation.

      (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 vehicle if—

(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

5(4), and

(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

if—

(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.

Supplementary powers

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

vehicle—

(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.

225


 
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