Joint Committee on the Draft Disability Discrimination Bill

124. Transport services are currently excluded from Part 3 of the DDA, which covers access to goods, services and facilities.[136]

125. The purpose of clause 3 is to allow transport services to be brought within Part 3 of the DDA. The way in which this will happen is complicated. First, clause 3 will replace an existing exemption for transport services with a more precise exclusion; permitting a transport provider to discriminate against a disabled person by "not providing, or in providing" a vehicle or the provision of services whilst travelling in a vehicle. This makes it clear that transport services which are not specific to the provision or use of a vehicle, such as timetables and ticketing arrangements, are already covered by Part 3 of the DDA. Clause 3 will then give the Secretary of State the power to make regulations partially or wholly to disapply the exemption relating to services specific to the provision or use of a vehicle. Finally, Clause 3 will generally exclude transport services which involve the provision or use of a vehicle from the duties under Part 3 of the DDA to make physical alterations. This is because Part 5 of the DDA covers specific technical regulations for public transport vehicles (see paragraph 7).

126. The proposal to bring transport services within the scope of Part 3 of the DDA has been universally welcomed. Concerns were, however, raised over the use of regulations to lift the exemption on transport services involving the provision or use of a vehicle, the timing of the regulations and their content.

EVIDENCE: USE OF REGULATIONS AND TIMETABLE

127. Members of the DCC called for the immediate lifting of the transport exemption for all forms of transport, arguing that "removing the exemption from all modes of transport would bring greater clarity to this extremely confusing area of law".[137] This view was supported by a number of other groups, including the BCODP.[138]

128. The majority of other submissions were content with the Government's more gradual approach to lifting the exemption. The Law Society and DPTAC agreed that specific modes of transport needed individual consideration and time to learn from the application of Part 3 of the DDA in other service provision areas.[139] However, most called for the Government clearly to set out the timetable for introducing all the regulations, and for this timetable to be as speedy as possible. For example, DPTAC noted its concern at the absence of any commitment to a timescale by which the new exclusion would be lifted and called for the intended timetable to be set out before the full bill was introduced into Parliament.[140] In its report Disabled People's Access to Transport, the House of Commons Transport Committee concluded that the Government should have been much clearer about which services would be affected by the lifting of the exemption, and in what order.[141]

129. In oral evidence Tony McNulty MP, the Transport Minister, reaffirmed the Government's commitment initially to "make regulations covering public transport: trains, buses and coaches, taxis and private hire vehicles".[142] On timing the Minister stated that introducing the regulations was dependent on the legislative timetable of the bill. However he made the commitment that the Government would:

"circulate or publish draft regulations during the course of the Bill's legislative passage and before Royal Assent and thereafter will issue the regulations. At this stage it is difficult to unpick from that quite in which order each of the regulations will come out and be enforced and exemptions ultimately lifted, but the commitment is to absolutely use those powers and do it for all areas after Royal Assent as soon as is practical."[143]

130. The Government intend to "get an idea" of the exact timetable during the consultation process on the draft regulations.[144]

131. There is uncertainty amongst transport operators about the new duties which will fall to them once the exemption is lifted. In addition certain sectors of the industry may need guidance in order fully to implement the Part 3 DDA duties. Therefore the use of regulation seems to offer the flexibility necessary to ensure effective implementation amongst operators, provided it is not used as an excuse for timetable slippage. Certainty amongst operators and disabled people will be increased by the Government setting out a very clear timetable (including dates) for lifting the exemption, including specifying the date on which each regulation will take effect, for each sector. Although regulations cannot be made before the bill receives Royal Assent, it would be possible for the Government to set out an indicative timetable for the regulations including any staggering for each sector. Therefore the Committee recommends that when the full bill is introduced the Government should issue an indicative timetable for the prompt introduction of the regulations, and the date by which each sector will be required to comply.

EVIDENCE: CONTENT OF REGULATIONS

132. The fact that the content of the regulations is not yet known was the second most common concern expressed in submissions, after the lack of a clear timetable. Many submissions noted that the impact of the proposals is dependent upon the content of the regulations and therefore proper assessment of the proposals was limited by the fact that these regulations are not available.[145] This has obviously also limited this Committee's own scrutiny of this aspect of the bill.

133. The Minister stated that the regulations would not be detailed technical regulations, as for transport vehicles in Part 5, but would "set out what specific provisions of Part 3 will apply for each transport system".[146] The regulations are likely to be different depending on the sector affected. The DRC would produce a Code of Practice similar to the existing Part 3 code but with examples specific to the transport industry.

134. We acknowledge the difficulty of publishing draft regulations alongside the draft bill. This did, however, mean that our scrutiny of this aspect was very limited. We recommend that the Government take note of the comments made by witnesses when drawing up regulations under clause 3.

"Reasonable" adjustments and codes of practice

135. The adjustments that organisations are required to make to services under Part 3 of the DDA hinge on the concept of reasonableness. The DRC has already produced an extensive code of practice on Part 3 (as it affects other service providers), which includes examples of "reasonable adjustments in practice".[147]

136. The draft bill provides for regulations to be used to lift the exemption on transport services from having to make reasonable adjustments in the provision or use of a vehicle.

137. The concept of what is reasonable could have very significant financial implications for operators. For example, the Government state, in respect of train operators, that "whether it is reasonable for operators to require advance notice [to provide transport for a disabled person] would have to be determined on a case by case basis".[148] The cost to operators of removing the 24-hour book-ahead requirement to guarantee assistance has been estimated at between £45 million to £135 million per annum.[149]

138. The Confederation of Passenger Transport (CPT) expressed concerns about what might be considered to be "reasonable" adjustments for members to make to their policies and practices. The CPT stated that "it is far from clear at the moment where the boundary of reasonableness will lie".[150] The CPT sought clear guidance "applying the kinds of principles which have already come out in guidance for the 1995 Act, but making them specific to the kinds of issues which face us".[151] Likewise the British Vehicle Rental and Leasing Association (BVRLA) expected a Code of Practice to give a "definition of reasonable including the factors that will be taken into consideration when defining reasonable" and "what steps a rental company would be expected to take".[152]

139. The DfT undertook a consultation on the Part 3 DDA proposals which closed in February 2003. It reported that "some industry respondents were concerned about the concept of "reasonableness" … and what it might mean in terms of delivery".[153] The Department's response to this is as follows:

"The intention is to address these concerns in a code of practice that the Disability Rights Commission would produce for transport services; the DRC has already produced a code for other service providers. Ultimately, it is a matter for the courts to determine 'reasonableness'."[154]

140. The Transport Committee was particularly concerned that transport operators should not be faced with the uncertainty and contradictions inherent in the concept of reasonableness currently found in law.[155] The Committee considered that there were two options for increasing certainty amongst operators regarding what is a reasonable adjustment to a service:

Regulations should define what differences in the treatment between disabled people and non-disabled people are justified; or
Any Code of Practice relating to transport should be subject to affirmative rather than negative procedure.[156]

141. The Government intend that the DRC will produce a code of practice specific to the transport sector. This code, and its effective dissemination, will be crucial in ensuring that operators are clear about their responsibilities, and disabled people are clear about what it is reasonable for transport operators to do. The Committee recommends that this code should be very clear about what is reasonable for transport operators in each sector and in different circumstances. The Committee hopes that a detailed code will reduce the need for the cost and uncertainty of court cases. In recognition of the importance of this code of practice, and in order to allow Parliament to play its part in scrutinising the code, the Committee endorses the recommendation of the House of Commons Transport Committee that any DRC codes of practice on transport should be made subject to the affirmative procedure rather than the negative procedure. This would guarantee that the code would have to be debated and specifically approved by each House of Parliament.

142. The Committee received only a small amount of evidence on the "reasonableness" of the current 24-hour book-ahead requirement for assistance on trains. The DRC suggested that whilst it may be appropriate for a more demand-led service in London and major urban conurbations, removing the requirement across the United Kingdom could result in railway companies not being able to provide other services.[157] DPTAC noted that in 2002 30% of booked journeys by disabled people failed as the booked assistance did not turn up, and suggested that the key was for the existing book-ahead system to work properly in order to build up disabled people's confidence in using public transport. This would also benefit train companies as operators faced severe financial penalties due to knock-on delays to services if the booking service did not work.[158] The Transport Committee was adamant that, given the substantial costs of partially or fully staffing stations, the "Government cannot simply shrug off responsibility onto the courts for matters of such magnitude" and recommended that the Government make very clear what is reasonable in this case.[159]

143. 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. Furthermore, disabled people are entitled to expect that the level of service set out in the code of practice will actually be provided. They should be able to have confidence that their journey is as likely to be successfully completed as the journey of any other passenger. The Committee therefore recommends that the DRC keep under review the effectiveness of any book-ahead system following the introduction of the new duties on transport operators and the transport code of practice.

Training

144. The Government have set out their schedule of estimated costs of the proposals in the draft RIA. Apart from the potential cost of removing the 24-hour book-ahead requirement for trains, the greatest costs for the transport sector relate to providing disability equality training to employees. The Government estimate that the transport industry will incur a one-off cost of £60.5 million, and ongoing costs of £16.45 million per annum.[160]

145. Many disability groups stressed the importance of effective disability equality training. The submission by groups representing people with a learning disability made clear that proper disability equality training, including training on the specific needs of those with a learning disability, needed to be developed. It also noted that this training would benefit all passengers, not just disabled people.[161]

146. Very little evidence was received from the industry on this issue. The CPT did not consider that extending disability equality training would present their members with great difficulties, but noted that current training "will be totally inconsistent and may well be inadequate because there are not very many laid-down procedures".[162] The CPT raised concerns that the Government's cost estimates were incomplete, citing several examples of additional costs members might face such as the costs of introducing auxiliary aids and making other reasonable adjustments to services.[163] The BVRLA provided detailed cost information to the DWP to feed into the RIA and the only specific cost concern in their main submission was that members should be permitted to charge to cover the cost of equipment for a disabled driver.[164]

147. The FSB, who represent many smaller operators such as taxis and private hire vehicle companies, thought that the requirement for disability equality training would cause financial difficulties for small businesses.[165] They considered that the Government should subsidise some of these costs to business "to ensure access, mobility for disabled people, whilst recognising some of the problems of the taxi industry and the private hire industry itself".[166]

148. The Transport Committee looked in some detail at the issue of disability equality training, and commented that it was unrealistic to expect the existing workers in these sectors to be trained immediately.[167] In evidence to that Committee the DRC noted the complementarity of disability equality training and general customer care training: "if you have it right for disabled people, you have it right for everybody".[168]

149. The Committee has heard that the need for disability equality training could cause financial and practical difficulties for operators in the transport industry. However, one of the advantages of the Government's intended use of regulation to lift the transport services exemption is the preparation time this allows for transport operators. High quality disability equality training will be very important in helping the transport industry to fulfil its duties, and it is likely to lead to general customer care benefits by helping staff to find ways to help all kinds of customers. In addition, the Committee considers that some of the training costs will be offset by the wider customer base which will be created by improving the accessibility of transport services. The Committee hopes that the DRC and disability organisations will work closely with the transport industry to help phase in disability equality training for existing staff, and to assist with the integration of such training with existing customer service training. We recommend that the Government should review the provision and cost of training for smaller operators, and consider whether there is a need to ease any financial and practical burdens for those operators.

Aviation and shipping

150. The Department for Transport issued non-statutory codes of practice on accessibility for disabled people in relation to both aviation and shipping in March 2003.

151. As with other sectors of the transport industry, the bill includes the power to regulate aviation and shipping by statutory instrument. However, the Government have stated that "for aviation and shipping, regulations would be made only if the voluntary approach is ineffective; monitoring of compliance with codes of practice is underway".[169]

152. Members of the DCC called for aviation and shipping to be brought immediately under statutory control along with other forms of public transport.[170] They pointed out that the RIA states that relying on voluntary compliance by the transport sector "would not provide disabled people with confidence in the transport network as a whole. And … it would not deliver against the Government's manifesto and policy commitments".[171] Sir Peter Large agreed that aviation and shipping should be regulated by law and considered that "these various acts [of unnecessary discrimination] could be made illegal on internal, United Kingdom services alone without adversely affecting our services' international competitiveness".[172]

153. The DRC and DPTAC were more cautious. Whilst the DRC thought that ultimately statutory intervention would be required, it stated that: "our view is that the current procedures and the current proposals are acceptable but we do not want any slippage".[173] DPTAC called for the Government to set a date of the end of 2005 to review whether the voluntary approach had been effective.[174] However, when DPTAC was asked for examples of bad practice in the transport industry, all concerned either the aviation or the shipping sectors, including easyJet's refusal to carry a group of deaf people and Brittany Ferries' policy of not carrying assistance dogs unless the dog was confined to the car for the entire journey.[175] Another example from the aviation sector came from the Multiple Sclerosis Society which outlined the case of a woman with multiple sclerosis who used the medication beta interferon and who was refused entry to her flight, even though she had a letter giving medical clearance to fly. She had previously been advised by the airline that she would be able to fly as long as she had such a letter.[176] Other submissions referred to a case in June 2003 involving easyJet and a group of 13 students with a learning disability. EasyJet refused to let the students board the plane saying that they could only fly if they had one carer for every two students. The students had only five carers with them. Eventually the group were allowed to fly when other passengers said that they would act as carers.[177]

154. British Airways, which represented United Kingdom scheduled airlines on the DfT group which drew up the aviation code of practice, strongly supported the current voluntary approach and argued that it "would be placed at significant competitive disadvantage were the United Kingdom Government to regulate United Kingdom airlines and not foreign airlines that we compete with".[178]

155. The Passenger Shipping Association, P&O Ferries and Stena Line all supported the voluntary approach in relation to shipping. Both Stena Line and P&O Ferries emphasized that the shipping code of practice was under review and that any decision before the completion of that review would be premature, adding that the voluntary approach had so far proven successful and that they "welcomed disabled passengers, asking them to identify their disability at the time of booking".[179]

156. The Government stated that work was in hand to evaluate the voluntary codes in both the aviation and shipping sectors. For aviation the Transport Research Laboratory are carrying out a benchmarking and measurement exercise which is due to report in the second half of 2005.[180] DPTAC is commissioning research on how shipping is meeting the International Maritime Organisation's guidance and DPTAC's own more detailed guidance. This will report in 2005.[181] The Minister did not commit to a date by which statutory regulation would be introduced if the voluntary codes were found not to be working.

157. The Committee received a significant amount of evidence which suggests that voluntary compliance is not currently effective. The fact that aviation and shipping companies operate in more than one country does not preclude statutory regulation within the United Kingdom (affecting United Kingdom companies), nor should it prevent the United Kingdom from setting an international standard. However, the Committee feels obliged to acknowledge that the voluntary codes were only introduced in March 2003, and that rigorous research must be undertaken to evaluate their effectiveness. We therefore welcome the Government's commitment to complete evaluation of the codes by the end of 2005. The Government should make a commitment during the passage of the full bill through Parliament that, if the evaluation indicates that the voluntary approach is not working satisfactorily, the Government will consult without delay on the desirability of the statutory approach.

Part 5 DDA proposed changes (rail end-date consultation)

158. Under Part 5 of the DDA the Government have the power to make regulations on the accessibility of transport vehicles. Regulations have already been made specifying accessibility requirements for all new public service vehicles, including trains, and also setting "end-dates" by when most public service vehicles, though not trains, must be accessible. For example, all buses must meet the specified accessibility requirements by 2017.[182] The DfT recently undertook a consultation on proposals for the introduction of the power to set an end-date by which time all rail vehicles must comply with the RVAR. In this consultation paper the Government stated that "our analysis leads us to believe that 2025 would be an appropriate date".[183] Subject to the outcome of the consultation, which closed on 26 January, the Government intend to include a power to set an end-date for trains—though not to specify that date—in the full bill when it is introduced to Parliament.[184] Before actually setting an end-date the Government intend to undertake another consultation.

159. Evidence relating to the rail end-date was received from a large number of bodies, with several including their consultation responses to the DfT exercise. Submissions generally favoured an earlier end-date than that proposed by the Government. The BCODP considered that "the right to free movement should be a basic right" and that end-dates for existing transport vehicles should be less than 10 years away. The majority of other submissions from disability organisations proposed 2017, which matches the bus accessibility end-dates. The DCC noted that the problem with setting a rail end-date after other forms of transport is that "a crucial link in the transport chain will be missing, thereby ruling out whole journeys for many disabled people".[185] Finally, several other witnesses suggested 2020, including the Mayor of London[186] and the British Polio Fellowship.[187] The DRC, whilst pressing for 2017, considered that 2020 would be a potential fall-back.[188]

160. The Minister provided the Committee with a summary of responses to the DfT's consultation, stating groups representing disabled people had favoured end-dates ranging from 2017 to 2020 "though, if you just follow the natural life cycle of replacement from the industry side," the date would be 2035.[189] Unfortunately no evidence was received by the Committee from the rail industry.

161. DPTAC raised the possibility that operators with legitimate reasons to go beyond a rail end-date of 2017 could secure a specific exemption, under the current powers under Part 5 of the DDA. Any exemption process would need to be robust, with "the duty firmly on the owner/operator to demonstrate that they are taking accessibility seriously".[190]

162. The House of Commons Transport Committee have drawn attention to the Strategic Rail Authority's Rolling Stock Strategy, suggesting that "this policy may bring forward the end date for accessibility markedly".[191] This policy is as follows:

"Licensed operators that own or lease passenger rail vehicles brought into use, or belonging to a type brought into use, before 1 January 1999 (and that propose to have an aspect of the passenger environment replaced, renewed, renovated, significantly altered, given a facelift, enhanced or refurbished) are required either to comply with the relevant standards set out in the RVAR, or to seek a dispensation from the SRA."[192]

163. We asked the Transport Minister about the relationship between the rail end-date consultation and the Strategic Rail Authority's own policy. He answered:

"I think I would share with the Committee, and to an extent the SRA, the implicit assumption underlying that that it may well be that things are put in place, all going well, well before 2025, not least because of what I say about rolling programmes of replacement and refurbishment, but there is absolutely no guarantee, even given the SRA's rolling stock strategy, the code of practice, the menudriven system of refurbishment to replace them, that it will be before 2025."[193]

164. However, whilst it may be that a great deal of access and refurbishment requirements are carried out ahead of any end-date, the Minister was keen that the end-date should be the absolute guaranteed date by which everything was done by and so would be reluctant to set too early a date.[194]

165. The Minister gave the Committee data on the projected replacement patterns for rolling stock over the next 20-30 years, showing the numbers of heavy rail vehicles not covered by the RVAR. The chart is reproduced as Figure 1. This data showed that, out of a total of 10,417 rail vehicles, in 2017 4256 non regulated vehicles will remain, dropping to 2514 in 2018. In 2020 the number remaining will fall to 2080, with a further significant reduction - to just 69 - in 2025. Therefore by 2018 it is predicted that less than 25% of heavy rail vehicles will not be regulated by the RVAR. As the DfT notes, "some of these vehicles would have been refurbished or designed to be accessible, albeit to a lower standard than full RVAR."[195]

FIGURE 1

Non RVAR Heavy Rail Vehicles Life Expiry

166. The debate about the end-date for rail vehicle compliance has been allowed to drag on for far too long. When the DDA was passed in 1995 it would have seemed ludicrous to suggest that nearly a decade later disabled people would still be waiting for a compliance date even to be set. Leaving aside the urgent need of disabled people for an accessible transport system, the rail industry also needs early certainty regarding the date to which it will be required to work. The Committee recommends that the consultation on the setting of the end-date is begun immediately. There is no justification for further delay.

167. The Committee's analysis of the evidence we have received, together with the Department for Transport's own data, leads us to suggest an end-date of the end of 2017. We conclude that this, together with a limited exemption system which would itself expire in 2025, would be an appropriate compromise between the needs of disabled people and the industry's current replacement programme.

Refurbishment

168. A number of submissions raised concerns over the refurbishment of vehicles and accessibility in terms of passenger information systems. The National Autistic Society raised concerns that "less visible access issues are being neglected as the debate around accessible transport focuses on making transport accessible for people with physical disabilities."[196] The collective submission from groups representing people with a learning disability warned that the end-date on accessibility would mean that transport providers would not need to put in new audio-visual information systems for many years. They called for an amendment to be made to Part 5 of the DDA to "prioritise accessible audio-visual information in transport refurbishment programmes".[197] Likewise the DRC pointed out that the train refurbishment proposals "provide no indication that substantial but important changes, such as installing accessible toilets and visual signage, will be required".[198]

169. The Committee received only a small amount of evidence on this issue. However, what we have received has convinced us that accessibility involves a number of adjustments, not just those covering physical access to a vehicle, including for example accessible audio-visual information. The Committee recommends that improvements to accessibility should be an integral part of the refurbishment process, including, for example, the installation of accessible audio-visual systems.

Blue badge enforcement

170. In November 2001 DPTAC was invited to assess the responses to the DfT's consultation reviewing the Blue Badge Scheme. The Blue Badge Scheme provides a national arrangement of on-street parking concessions for disabled people, allowing badge holders to park close to their destination. DPTAC recommended three changes requiring primary legislation—

creating powers of inspection by the police and parking attendants to assist with enforcement;

adopting an alternative form of wording to "institutional" to better reflect eligible organisations;

the creation of a national database.[199]

171. There is one other change to the Blue Badge Scheme requiring primary legislation, which, although not one of the recommendations emerging from DPTAC's study, is a proposal which both DPTAC[200] and the Government[201] drew to the Committee's attention. This is the formalisation of reciprocity agreements with EU Member States for the recognition of disabled people's parking badges.

172. On 16 March an amendment was made to the Traffic Management Bill in the House of Commons to legislate for one of DPTAC's recommendations (enforcement). The Transport Minister told the Committee that the Government wanted to look in detail at the feasibility of a national database, and that it would therefore be extremely unlikely that legislation on this would be introduced before the next Parliament.[202] The Government were advised that the recommendations to change the language and the notion of reciprocity were beyond the scope of the Traffic Management Bill.[203] However, both Ministers considered that these changes could be made in the full disability discrimination bill and the Minister for Disabled People made the commitment that "I would certainly want to be as helpful as possible in making sure we could provide a relevant vehicle, if you forgive the pun, for dealing with these changes that have been agreed".[204]