Accessibility regulations and Rail Replacement Buses

Doug Paulley made this Freedom of Information request to Department for Transport as part of a batch sent to 3 authorities

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Dear Department for Transport,

If it is likely to be more productive to deal with this enquiry under "Business as Usual", please do so; otherwise please note that this fulfills the requirements of a Freedom of Information Act.

I am trying to determine if the Public Service Vehicle Accessibility Regulations apply to rail replacement buses. That is: do buses (single and double decker), and coaches that were first used on or after 1st January 2005 (and all coaches come 2020), that are in use as rail replacement buses, have to comply with the Public Service Vehicle Accessibility Regulations?

Some people argue that rail replacement buses are not subject to the PSVAR as they are provided under contract to a TOC, or because their services aren't registered with the Traffic Commissioner. I am less certain. I note that the "Department for Transport - Public Service Vehicles Accessibility Regulations 2000 - Guidance" states:

"The Regulations apply to any public service vehicle with a capacity exceeding 22 passengers used to provide a local or scheduled service" ... "In general the Regulations apply to all buses and coaches operating to a published timetable. Very small buses and coaches (with a capacity not exceeding 22 passengers) are excluded, as are vehicles used for holiday or touring services, day trips or private hire for example, to a theatre or theme park. "

It also says :
'"scheduled service" means a service, using one or more public service vehicles, for the carriage of passengers at separate fares -
(a) along specified routes,
(b) at specified times, and
(c) with passengers being taken up and set down at pre-determined stopping points,
but does not include a tour service;
The phrase "scheduled service" is to include bus and coach services that operate over longer distances and with few stops such as inter-city coach services.'

To my view, that appears to include rail replacement buses. Such buses are used along specified routes at specified times and with passengers being taken up and set down at pre-determined stopping points; being the stations that would have been served by the trains had the buses not been replacing them. It's not a tour service.

Bns Hollis said, at https://publications.parliament.uk/pa/ld..., in relation to school buses, whether or not a vehicle is “operated for hire and reward“ is defined by “whether any passengers are carried as separate fares (which includes payment for the right to travel as part of a larger payment)“, and indeed “On a bus provided by the local authority or bus operator, provided that a fare is paid, even if only by some of the students when others are entitled to free transport, the vehicle would be a PSV.” It is not a Public Service Vehicle, and thus not subject to the accessibility regulations, “provided that the passengers made no contribution to the cost of travel and no contribution was made on their behalf“. Further "When contributions are made for travel, it is a PSV. Since private schools charge pupils fees for the whole of the education service that they provide, they would probably be regarded always as operating buses for hire or reward, because the transport service is part of the overall service by which the fees are charged."

I would argue that rail replacement buses do take people "at separate fares". Passengers have to have a rail ticket for the right to travel on that bus; and it is not relevant that a) the passengers pay a rail ticket vendor rather than the bus operator, or b) that the rail ticket may include other elements such as onward rail transport.

So it is my interpretation that the PSVAR do indeed apply to rail replacement vehicles. However when attempting to make use of such, I have discovered that there are a large number of non-PSVAR-compliant buses, and coaches first used after 1st January 2005, in use on rail replacement services which I therefore can't access in my wheelchair. A current example is the rail replacement bus service currently in use on the Lakes line; an example timetable is at https://be803fe5c416e39d38ae-aa21086260d... .

Further, some in the rail industry disagree that rail replacement buses are subject to the PSVAR.

So what I would like to know is: are rail replacement buses and coaches subject to the PSVAR or are they exempt in some manner?

If you can answer that under "Business as Usual" that would be great. If, however, you can't then please consider this as a Freedom of Information request for recorded information that indicates whether or not rail replacement buses are subject to the Public Service Vehicles Accessibility Regulations.

Thank you

Yours faithfully,

Doug Paulley

FOI-ADVICE-TEAM-DFT, Department for Transport

Dear Mr Paulley,

 

I understand you asked that we provide a response to this request, for
reasons of transparency, in addition to our response direct to you outside
of the FOI Act.

 

Please find attached a copy of the response below.

 

Kind regards

FOI Advice Team

Department for Transport

 

Dear Mr Paulley,

 

I understand that you have sent the same enquiry to DVSA.  Since DfT is
the parent Department for DVSA, and that we have policy responsibility for
this issue, I hope you will accept my reply in response to both
enquiries.  Further to our earlier correspondence, should you wish to post
my answer to "What Do They Know" as a comment against your request I would
be grateful if you could omit my contact details.  Otherwise, if you would
still prefer it to be sent directly by the Department please let me know.

 

In your original enquiry you noted that there were different schools of
thought on the application of the Public Service Vehicles Accessibility
Regulations 2000 (PSVAR) to vehicles providing rail replacement services,
and asked for the Department's view.  As usual I must be clear that I
cannot provide you with legal advice and that you may wish to seek this
for yourself before acting on any information provided.

 

Unfortunately the answer to your question is not as clear cut as you might
have hoped, and the application of PSVAR to individual vehicles will
depend upon the nature of the service they provide.

 

You rightly note that PSVAR provides a definition of "scheduled services"
as:

"...a service, using one or more public service vehicles, for the carriage
of passengers at separate fares -

(a) along specified routes,

(b) at specified times, and

(c) with passengers being taken up and set down at pre-determined stopping
points, but does not include a tour service..."

 

PSVAR also provides a list of categories of service which should not be
considered to be "scheduled services".  This does not include rail
replacement services.

 

As such, from a policy perspective, it is our view that PSVAR is likely to
apply to rail replacement services meeting the above criteria.  Again,
whilst it is ultatimely for the Courts to interpret the legislation, we
would consider that a fare has been paid for a journey even if it has been
paid to a Train Operating Company rather than the operator of the rail
replacement service.

 

All that said, there may be circumstances in which a rail replacement
service does not meet all of the above criteria or indeed, where the
criteria are met but the service is exempt from needing to comply with
PSVAR on account of it being older than twenty years and being used for
relevant services on fewer than twenty days in each calendar year.  This
exemption was included in PSVAR to enable operators to maintain services
if compliant vehicles were temporarily unavailable however it is our
understanding that it may sometimes be used for rail replacement services.

 

Therefore, in order to determine whether the service you referred to must
comply with PSVAR you will need to identify whether it meets the criteria
to be considered a local or scheduled service in its specific
circumstances, and whether the twenty day exemption applies.

 

As I am sure you are aware it is a standard condition of train operators'
Disabled People's Protection Policies (DPPPs) that alternative accessible
transport will be provided to enabled disabled passengers to complete
their journey during times of disruption.  The Office of Rail and Road
says:

 

"Train operators must provide, without extra charge, an appropriate
alternative accessible service to take disabled passengers to the nearest
or most convenient accessible station from where they can continue their
journey.

This duty applies where:

•            the station is inaccessible

•            where, for whatever reason, substitute transport is provided
to replace rail services (eg because of planned engineering works), and
this alternative transport is inaccessible to disabled passengers

•            where there is disruption to services at short notice that,
for whatever reason, makes services inaccessible to disabled passengers"

 

 Whilst it seems reasonable that disabled passengers should expect to be
able to use the same transport as other passengers, without the disruption
and delay of waiting for alternatives, this hopefully provides a backstop
where PSVAR compliant services are not available.

 

I am sorry that I cannot provide a more definitive view but hope that it
helps to answer your question.

 

Please let me know whether you would like this to be submitted to "What Do
They Know" by my FOI colleagues.

 

Yours,

 

Robert

 

 

Robert Johnson

Bus and Taxi Accessibility Lead