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There are people in DfT who are one phasing gear short of a full Deltic engine
Every time I write about disability legislation and the railways a flood of disbelieving correspondence ensues. Indeed, the high point of my media career was to get John Humphries to expostulate that the fuss over the Class 458 Passenger Information System lettering (of which more anon) was ‘political correctness gone mad'.
But what follows far exceeds anything that has gone before . And don't forget that out taxes pay the wages and index linked pensions of those responsible.
As you all know, the Disability Discrimination Act 2005 - Rail Services introduces a number of changes to the existing DDA 1995 which introduced the Rail Vehicle Accessibility Regulations (RVAR) back in November 1998. Not least is the introduction of a 2020 end date for all rail vehicles to be fully RVAR compliant.
On July 25 DfT published the c onsultation paper on the draft regulations needed to make the necessary amendments to the RVAR 1998. Because this is such an outstanding example of mindless bureaucracy I have posted it in Professional Stuff on Alycidon Rail ( www.alycidon.com ). Closing date for comment is 16 October 2006 should you feel like smiting the Taliban hip and thigh.
This document has the somewhat prolix title ‘ Consultation on draft Rail Vehicle Accessibility Exemption Order (Parliamentary Procedures) Regulations, Rail Vehicle Accessibility (Determination of Turnover) Regulations & Setting of Penalties: Code of Practice. The bonkers bit, that is, where DfT's Mobility & Inclusion Unit goes off the irrationality scale, comes in Annexes C (Penalties - Code of Practice) and D (Penalties - Worked Examples).
Section 46 of the DDA 1995 made it a criminal offence for an operator to use a rail vehicle, of a design which entered service after November 1998, to provide fare paying passenger services if it did not comply with RVAR. There was provision for exemptions to be granted for minor non-compliances.
DDA 2005 includes provisions allowing the Government to decriminalise non-compliance. Instead there will be civil sanctions which, claims DfT, will be more responsive and ensure that the sanctions are appropriate to the circumstances of the case. They jest.
Under the revised DDA 2005 regime the Secretary of State can issue a transgressing operator with an improvement notice, setting a deadline for a failure to comply with the RVAR to be rectified. Should the non-compliance continue after this deadline has passed, a final notice can be issued.
If this is also ignored, a penalty of up to 10% of turnover can be imposed. Where a regulated rail vehicle is operated without a valid compliance certificate the Secretary of State can also impose an immediate fine.
Under DDA 1995, the current maximum fine for non-compliance is £2,500. No one has been prosecuted since the RVAR came into force.
When I asked DfT whether there had actually been any cases of non compliance with the RVAR, not covered by an exemption order, they said than any cases have been resolved through discussions with the operator. I suspect the correct answer was ‘no'.
Despite the fact that the penalties available under DDA1995 have not been used, DDA 2005 has adopted a maximum penalty of 10% of turnover. Why 10%? I quote from the consultation document:
‘The 10 per cent figure was chosen since it replicates the enforcement regime already in place under the Railways Act 1993 24 . This ceiling was introduced in the Transport Act 2000 (by amendment to the 1993 Act) to bring the railways into line in this regard with the regimes of regulated utilities and penalties under the Competition Act 1998. Using the same maximum figure for RVAR gives regulatory clarity between enforcement regimes' .
While the penalty is limited by the Act to a maximum of 10% of an operator's turnover there will also be a maximum figure, presumably lower. This will be subject to consultation ‘in due course'.
‘Turnover' includes subsidies, fares income, revenue from train and station catering, parking fees, earnings from leases on land forming part of a station and the return from the sale of station land.
Also in the consultation document there is a tariff (Table 2) for determining penalties within three categories, depending on the severity of the offence. The offences covered are: operating a vehicle without a valid compliance certificate; non conformity with constructional or operational requirements of RVAR; obstructing an authorised person ‘in the exercise of his powers'; and failure to provide information.
Table 2Non-compliance – Graduated Penalties per offence Lower range: no more than 3.3% of turnover middle range : between 3.3% and 6.7% of turnover or the maximum prescribed, whichever is the lesser; upper range : between 6.7% and 10% of turnover or the maximum prescribed, whichever is the lesser; maximum penalty : 10% of turnover or the maximum prescribed, whichever is the lesser. |
In Annex D A number of scenarios illustrate the penalty regime. Some of these are away with the fairies,
For example, what about the 'franchised national rail operator' purchasing new units'.
‘Despite being advised by the manufacturer that compliance certificates will be required, the operator takes no steps to obtain them, nor does he employ an Appointed Assessor. The vehicles are placed into public service. This is the second time this operator has operated vehicles without a compliance certificate. In this case a maximum penalty may be imposed because the operator cannot claim to be unaware of the requirement to obtain a compliance certificate before a regulated vehicle is brought into service'.
Given the hard work by operators and manufacturers to make new trains compliant, that someone in the Mobility & Inclusion unit not only dreamed up such a farrago but actually put it in print is beyond belief. But even worse is the Penalty proposed.
Let us apply this scenario to the Hitachi Class 395s for SouthEastern. The maximum penalty of 10% of turnover this impossible sequence of events would attract equates to £45million.
When you consider that Balfour Beatty's £10 million fine for its role in the Hatfield derailment, in which four people died, was reduced to £7.5 million by the court of appeal, £45 million for raising two fingers to the RVAR is, how shall I say, a little disproportionate. The Disability Rights Commission would no doubt think it excessively lenient.
So, let's apply the more realistic scenario in the box to South West Trains.
Operating a regulated rail vehicle otherwise in conformity with the RVARExample ATrain crew belonging to a national rail operator persistently fail to programme the automated Passenger Information System (PIS) correctly before each journey. This is taking place on two classes of rail vehicle, made by different manufacturers, so an equipment failure is unlikely to be the cause. Non-compliances continue to be reported through the period of the improvement and final notices. The uncertainty about the train's destination and route is reducing the willingness of passengers with sensory impairments to use the services. The operator demonstrates that new and existing train crew have undergone training that includes staff responsibilities with regard to the PIS. A number of staff have been disciplined due to their failure to carry out their duties correctly. In this case a penalty towards the middle range of the scale may be imposed. This is due to the fact that, whilst the operator is making an effort to improve the situation, this is clearly insufficient as cases continue to be reported and some disabled passengers are unwilling to travel when the provision of information is so uncertain. |
Note that these recalcitrant staff members attract a lesser penalty ‘towards the middle range', because at least the operator is trying. The penalty based on SWTs turnover would be between £20million and £40million.
Finally, how about this case of wilful ignorance where individual vehicles within a fleet that have been refurbished are found to be non-compliant because some internal door control panels have been fitted incorrectly. The Appointed Assessor has signed off the fleet and the compliance certificates granted in good faith.
No one has spotted there rogue door panels, not even DfT, until officials (hurrah) travelled on one of the non-compliant units. But the operator (boo) does not consider compliance to be a priority and has failed to meet the deadlines for compliance given in the improvement and final notices.
Fortunately, disabled passengers continue to be able to use the rail vehicle, because all the "Open" buttons are compliant and the "Close" buttons are rarely used by passengers because the doors are normally closed by the train crew. Just think about that last normally. Can you think of a train in which the power operated doors don't have train crew over-ride?
Anyway, in this case a penalty towards the middle range of the scale may be imposed as the operator has wilfully ignored enforcement procedures but the impact on disabled travellers is small.
Chose a TOC to work out the penalty. How about GNER's Mallard Mk 4 coaches. That's another £33milion off the premium.
But while this all knockabout stuff, there is a serious point. I think many of these scenarios are ludicrous, but what does their presence in a consultation document tell us about how the Mobility & Inclusion Unit and, by definition the rest of DfT view the railways?