Examination of Witnesses (Questions 180
- 199)
WEDNESDAY 3 MARCH 2004
MR BRIAN
LAMB OBE, MR
STEVE WINYARD,
MS KATE
NASH AND
MR DAVID
CONGDON
Q180 Chairman: Perhaps I could add
to that. Have you had any estimate of the cost, the likely cost,
if the exclusion was removed?
Ms Nash: We could do that job
of work for the sector. I am being facetious in my answer, and
you must forgive me, because the reason why I say it as I do is
that I think the sector itself could do more work to predict the
costs. I think that sector in particular has done less of a job
of work to create the mindset change that needs to happen as we
see, say, in the service industry promoted by in particular the
Employers Forum on Disability. So while there is a job of work
to promote the business case for doing so within that sector,
there is less of an appetite for doing so, I think, because it
is perceived to be a physicality that is able to be overcome—not
able to be overcome.
Mr Congdon: Could I on that last
point take it a bit more broadly, if I may? I think the Regulatory
Impact Assessment is pretty good in relation to the potential
costs of removing the Part 3 exemption, because it makes the point
that quite a lot of the industry is already engaged in trying
to change staff attitudes and understanding towards disability
because a lot of the issues in relation to transport are around
that, and I think that the costs, as indicated in the Impact Assessment
are frankly relatively modest. Could I make a broader point? When
the DDA was brought in in 1995, I think everybody recognised that
transport was different from other services, and that was why
there is a Part V that relates to rolling-stock and buses, etc.
Nobody expected to have a situation within a number of years where
all transport would be fully accessible, but I think if anyone
was asked in 1995, would we have a situation in 2004 where it
is acceptable for a bus driver or a train drive to say, "No,
we are not going to take you on our bus, or train because you
have got a disability", people would say, "Well, that
must be illegal, surely, under the Disability Discrimination Act",
but it is not; and I think that is really the fundamental answer
to the question. Transport was rightly treated differently, but
too differently, as has been proven now by the passage of nine
years, and removing the exemption would send a very, very powerful
signal, not only to disabled people, which would be important,
but to the public and transport operators that it is wrong to
discriminate against people in any way, and it would also add
force to some of the things that have already started to happen
and some of which will happen more after October in relation to
the provisions that come in then, and that is about issues about
signage and timetables and all those aspects which cause so much
difficulty, particularly for travellers with a learning disability
who do not always understand the signs and the timetables, but
also, frankly, many other people. It would also reinforce some
of the difficult issues around audio/visual equipment. There are
some specific problems in relation to buses where, as I understand,
even the regulations for new buses do not yet insist on the provision
of audio/visual equipment because of certain technical reasons,
although I think we would argue perhaps some interim solutions
could be provided. You could have a situation where, even when
you have got the equipment, it is not always used; and that puts
people at a serious disadvantage, because there is nothing worse
than relying on an audio announcement, it is not given and you
end up hundreds of miles away from where you intended to be. So
the message would be: it is not too costly, according to the impact
assessment, to fully exempt Part 3, and it would be a major step
forward and would be much closer to bringing transport in line
with other services.
Q181 Chairman: I would like to turn
to Part 3 in just a moment or two, but in the meantime, I put
up both supplementaries, especially in relation to what Kate Nash
had to say. Let us assume there is no immediate lifting of the
exemption, what do you think would be a reasonable time scale
for the different forms of transport to be become part of the
proposed regulations; and also are there any arguments for greater
action in varying these exemptions for different types of transport?
Ms Nash: I suppose for simplicity
we would encourage an approach that provides for comparable timescales.
I know that later we will be talking, for example, on end dates
for rail vehicles; and while we would the strongly discourage
the current preferred timescale of 2025, we would very much strongly
advocate, for example, 2017, as many others have suggested. I
know that this Committee has heard other submissions, but there
is always a rush towards the end of the time period for which
provisions need to be made. So to a certain extent, though very
mindful of the need to reflect the features of the industry that
need to be provided for by way of making adjustments, simplicity
and congruence throughout the sectors and timescales would be
advantageous.
Q182 Chairman: I would like later
too, if there is time, to turn to 2017, but for the moment could
I develop this particular theme and ask a very specific question
on rail, remembering that my questions, as with my colleagues,
are based on some of the submissions that we have received and
are not necessarily the views that we might hold by the end of
our discussions. On rail, do you consider it reasonable for rail
operators to maintain a 24-hour book ahead requirement to guarantee
disabled assistance, given what they consider, and I underline
that, what they consider to be the significant costs implications
for them if this requirement were to be removed?
Ms Nash: If I start to answer,
David, and you jump in. I think it is reasonable to expect the
service provider to provide for a system that is demonstrating
a reasonableness that I think most disabled people would understand
and accept. I think it is unreasonable to expect that where that
system fails, and we are aware of many examples where that is
the case, it is unreasonable that there is not another additional
service or that that failure cannot be accommodated at the point
of failure. David, do you want to add to that?
Mr Congdon: I do not think there
is a great deal to add. My understanding is that many, many people
who do use rail services do book in advance, so it is less of
a real problem than may be imagined. I was also conscious again
of the Regulatory Impact Assessment, the costs of actually doing
it for every single rail station. So there is an issue of reasonableness.
Maybe, as Kate said, some flexibility round the margins would
actually be a way of achieving the objective without necessarily
meaning that everyone could be guaranteed to turn up on the morning,
and I am conscious also obviously that the DRC gave evidence on
this point last week.
Q183 Chairman: What do you think
would be more important, the 24-hour requirement, or the fact
that having booked it 24-hour in advance it is actually there
when you need it—
Mr Congdon: I am sure the latter
is absolutely crucial. I think you heard from DRC the fact there
can be nothing more frustrating than that if there is only one
place for a disabled person and you turn up and find that place
is taken. Yes, the certainty must really be crucial.
Q184 Mr Clarke: Briefly on Part 3,
which David mentioned, I think you will know that Leonard Cheshire,
which, I think, is part of the consortium.... Yes?
Mr Congdon: Yes.
Q185 Mr Clarke: That they have suggested
that if regulations are used to remove the transport operator's
exemption under Part 3, they should include, and I quote from
what they have to say, the obligations of the October 1999 duties
of Part 3 as well as the 1996 obligations. Can you explain what
impact this would have on disabled people, as you see it?
Mr Congdon: My understanding is
that this would get us to a situation whereby it would bring public
transport basically in line with other services. So, for instance,
as I understand it, the 1996 Regulations would relate to basic
gratuitous discrimination and 1999 relates to ancillary equipment.
So I think we would fully support Leonard Cheshire's line in relation
to encompassing those obligations as well.
Q186 Mr Clarke: My last question
on transport, which is obviously very crucial to what we are all
considering, is on the issue of 2017, because we are all very
much aware of the end date and the consultation on trains and
so on, but we have got conflicting advice on this, to say the
least, from yourselves, from the Disability Rights Commission
and, of course, from the Government. How do you respond to the
DRC's proposal that an end date of 2020 would be a reasonable
compromise? I think that is between your 2017 and the Government's
2025, if I have got that right?
Ms Nash: Again, I will endeavour
to answer this on my colleagues' behalf. We are mindful of other
submissions. While on the one hand there was a positive rebuttal
from the DRC that they were not necessarily suggesting a third
way in signalling that 2020 might be an acceptable compromise
to the Government's preferred date of 2025, we understand that
there may be a growing feeling that 2020 is the year to focus
on. I think to answer the question straight, there is little or
no evidence that we are aware of, and I am conscious that I am
not a technician here, so you will jump on me, I am sure, Tom,
if I am inaccurate here. There is little or no evidence that we
are aware of that the industry has signalled that 2017 would be
achievable and appropriate, but neither has the industry signalled
that 2020 is achievable and appropriate, and equally neither has
the industry signalled that 2025, the Government's preferred option,
is achievable and appropriate. In other words, the industry has
spectacularly failed to signal whether it welcomes moves to comprehensively
address the issue. I think that leads the DCC to conclude that
the end date is not of material concern, and it would be sensible
to factor in the time frame under which trains undergo, for example,
major refurbishments, where they are taken into workshops and
stripped down, which I believe is something like 15 years. So
it is equally sensible to factor in the reality, as I said before,
that the panic sets in anything between three years and five minutes
before the legislation and/or the regulation comes into effect.
I think then the end date, according to that fact, means we might
want to suggest, for example, and again I am exaggerating to make
a point here, that 2007 might just as well suffice. As I say,
I am exaggerating the point; but I suppose what we are trying
to suggest is that too much scrutiny or meticulous planning does
not take into account the tendency to avoid things until the last
minute. Of course, there is an on-going Department of Transport
consultation and, despite the introduction of the RVAR standard
many disabled people still feel that the majority of the rail
industry has yet to demonstrate a sincere commitment to meeting
the reasonable requirements of disabled people. We know, for example,
of a disabled person. RADAR heard of recently, who has to travel
to work from Folkestone three times a week. They have questioned
the train operating companies something like 57 times in writing
as to why they are still travelling within a guards van. One can
only guesstimate that the replies, when or if they come in, boil
down to the fact that they do not have to. So I suppose we are
disappointed: we are disappointed to see that the Government is
expressing a strong preference for 2025 as an end date when all
rail vehicles must be accessible, though there may well be difficulties,
and we are mindful of those, in replacing significant numbers
of trains ahead of schedule. This date means that trains will
remain inaccessible long after other modes of public transport
come into play, which leaves a crucial link in the transport chain
broken for disabled travellers. Another good example, before I
hand over to David, another disabled person who contacted us recently
in relation to our submission, informed us on several occasions
they had to jam a train's doors open with their own wheelchair
to prevent it from leaving the station until either the requested
assistance was provided or a helpful member of the public got
that person off the train; and we call this reasonable! We think
not.
Mr Congdon: I think that is really
the point. Here we are in 2004 where people are putting up with
dreadful conditions as disabled people in terms of getting on
trains, and it is fair to say that even some of the newer rolling-stock,
some introduced in the last 10 years, is not really that brilliant.
The point I would really want to make, although it could be said
it is unreasonable to say that they have to comply in 13 years
time, we are nine years on from the original DDA. It is hardly
a surprise that at some point in time transport operators would
be required to make their rolling stock absolutely accessible.
2017 is 22 years after the DDA and frankly I would say to the
committee that that says it all.
Q187 Lord Rix: I totally agree with
that response because in 2025 I will certainly be in need of the
DDA because I shall be 101. It seems to me to be rather a long
time to wait for transport to be fully accessible for disabled
people. What you have just said about the ongoing date to 2017
itself seems to be ridiculous, does it not? Where did that magic
figure come from? Is it because of the transport lobby who have
made the government think of this as a figure or is it for other
reasons as well? It seems to me to be totally unrealistic to have
to wait even the minimum of a further 13 years before transport
complies with the Bill.
Ms Nash: We would agree with you.
We are very encouraged by that response, Lord Rix. Again, I hesitate
to add that I am not a technician and I believe that one of the
rationales for 2017 is in relation to the 15-year rotation around
the strip down and refurbishment of trains.
Q188 Mr Berry: As a person who accused
the DRC of adopting a third way I can confirm that they immediately
denied it and went straight back to 2017. David's point is incredibly
important. The regulator of the industry and the Government can
hardly be unaware of the debate that has taken place for many
years about what is the end date. There have been countless parliamentary
questions about it. Can you confirm what you said earlier, that
despite the fact that everyone knows this is an issue and the
year 2017 has been mentioned, to the best of your knowledge neither
the regulator nor the industry nor anybody else has said this
cannot be done, because I have never heard them say it cannot
be done?
Ms Nash: We are unaware of that.
Mr Berry: That is quite illuminating.
Thank you.
Q189 Lord Addington: Could you confirm
something, because I happen to agree with the idea that these
are just arbitrary limits and plucking out the one that puts it
off the longest? Would it not be more realistic to base your timescale
around financial planning rather than these things and could there
not be an argument for saying that if you were negotiating loans,
for instance, that would be a much more realistic timescale than
saying, for instance, "Oh, well, if we carry on working on
the same bit of technology at the same rate we will come and it
will all be done by X"? Would you not be able to build an
argument around that much more easily by saying that financial
planning is more important than the current rate of our engineering
work?
Ms Nash: Yes. Think there could
be logic in that argument. To a certain extent financial planning
is not divorced from the process by which—
Q190 Lord Addington: Could you not
build an argument saying that that would be the driving force?
Mr Lamb: Would that not partly
depend on what the length of the leasing arrangements are because
obviously if you were in a situation where it was relatively new
rolling stock and the leasing arrangement was over 15 years it
could push the whole thing back more? I am not sure anyone has
done the work to look at what the average lengths of the leases
is. The information must be there with the companies but it would
be very interesting to find out what the average length of the
leasing arrangements are because you are right in terms of how
they are going to structure the financial arrangements for the
rolling stock and what the term is that they are assuming on that.
That would all be factored into what they say they could afford
and therefore what would be reasonable in terms of altering it.
Mr Lamb: If it was 30 years, for
the sake of argument, some people have had leasing arrangements
for 30 years and if we then took that approach it could lock you
in for 30 years of not having any change.
Q191 Lord Addington: What I was trying
to get at is that you can renegotiate a loan.
Mr Lamb: Yes.
Q192 Mr Clarke: Can you be persuaded
that there might just be a case for some exemptions in terms of
the end date and, if you can, what criteria do you think should
be used?
Ms Nash: Can I probe a bit more?
Can you suggest where you have heard that there may be exemptions?
Chairman: That is called leading a witness.
Q193 Mr Clarke: I am sure that when
the evidence is published that will be the reply to the question.
Mr Lamb: Was the assumption we
were looking at things like hobbyist railway tracks such as Bluebell
Railway with deliberately old rolling stock where the whole point
would be that you get on something that is 90 years old or whatever?
Would that be the concern, that somehow those would be swept in
in some unreasonable way when the whole point of why someone would
go on those is precisely because they look like that? That is
not something we have considered but it is obviously something
that would need to be looked at. Presumably some concept of reasonableness
would apply there. In terms of the major transport networks I
find it very difficult to see why anyone should have a derogation.
Q194 Lord Tebbit: Can I suggest to
the witnesses that the way out of this problem surely is to establish
a very early date beyond which transport operators, particularly
for rolling stock, must be fully accessible with new stock, so
we say that in perhaps three years' or five years' time all new
stock, as it is brought into service, has to be fully accessible
with a longer date for the phasing out of the older stock because
of the long life scales that there are in some of those stocks?
We would then get progress without causing undue expense to the
operators.
Ms Nash: We are just conferring
because we are unsure ourselves as to whether new stock is not
currently covered. We think it is.
Miss Begg: It is.
Q195 Lord Tebbit: All stock is already
covered, is it?
Ms Nash: All new stock.
Q196 Lord Tebbit: Then we are only
talking about a phasing out date, are we not?
Ms Nash: And refurbishment, yes.
Mr Lamb: Missing out on refurbishment,
so I think our starting point would be the earlier one, not the
later one.
Q197 Lord Tebbit: That really indicates
that one should be relatively hawkish about this?
Mr Lamb: We feel so, yes.
Q198 Lord Rix: Let us turn to aviation
and shipping. Budget airlines get top billing today, I am afraid.
First of all, DPTAC have suggested that the voluntary approach
needs to be given time to work and that the voluntary approach
having been issued in March 2003, DPTAC recommend that the end
of 2005 is the time when the government should determine whether
the voluntary approach has been effective. However, the DCC suggest
that this should be ignored and that immediate statutory intervention
should take place. Would you agree with this and what evidence
can you give to support this immediacy?
Ms Nash: Again I will endeavour
to answer that for my colleagues. Our view is that the voluntary
codes are simply not working. I could answer the question in one
word by saying "Ryanair". There is a simple pattern
of behaviour from airlines and ferry operators who continue to
discriminate and at the moment we feel there is simply no incentive
to make the reasonable adjustments that are required. The Ryanair
case, a very well documented, very public, case, shows that a
major carrier will unashamedly discriminate against disabled people,
and I think the idea that corporations who run airlines do not
want to court bad publicity simply does not apply. Where there
is no threat of action I think the DCC would say, regrettably,
that even major carriers do not feel that they have to make reasonable
adjustments. We have from that a system in place where it allows
for a disability tax. If there is no other illustration for the
need for compulsion rather than voluntary codes and keeping our
fingers crossed, then let that be it.
Mr Congdon: I think it really
goes back to the earlier general points I made about the exemptions
for transport. It means as things stand at the moment under the
voluntary code that discrimination does occur and there is no
action that can be taken. Much of it is about good practice and
having a legal backing for it would strengthen that, and the cases
that have been quoted do illustrate that point. There have been
examples, I understand, on shipping as well, so there are examples
around where people are being discriminated against currently
and the law does not protect them and that is what we want to
see.
Q199 Chairman: Surely Ryanair is
a bad example because in fact they were found to be in breach
under the existing law? They are appealing, I know, so we must
not discuss it in too much detail, but in fact the existing law
found them to be in breach.
Mr Congdon: That is a very interesting
point you made. I was thinking about that only this morning. I
think that was not totally to do with being on the plane. It was
much more about getting from the airport building to the plane.
A better example is that we had students from a Mencap college
flying and they were asked to have one carer for every two disabled
persons. The net result was that people on the plane volunteered
to be carers, which is an interesting solution to a problem, but
it should not reach that stage. You should not be faced with that
sort of situation, and changing the law would remove that problem.
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