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Commonsense triumphs over RVAR – thanks to the Railway Lords
As always on this subject the rules of engagement need to be reiterated. Single issue activists, such as the disability lobby are not, in general, reasonable people. Nor should they be.
What they see as reasonable demands may be unfeasibly expensive to accommodate, but that is not their problem. In the case of disability provision there have been great advances over the past two or three decades, but we should not expect the activities to be happy. Quite rightly, they will always demand more.
Equally, in the case of public services, the state has to balance the additional cost of improving accessibility with other demands on the national budget. Quite simply, the railways have to make the cost benefit analysis and, at some point, say ‘sorry, it's not perfect but it's good enough'.
There was a classic example of how to do it in the House of Lords in October when three Rail Vehicle Accessibility Regulation (RVAR) exemption orders were being tabled. Two of the Orders were extensions to existing exemptions for electric multiple units designed before the final version of the RVAR was published. The third was for the Hull Trains Class 222 diesel multiple units.
Because the Government's Disabled Persons Transport Advisory Committee (DPTAC) faffed around in drafting the RVAR, Alstom worked to the final draft, which had been sent out to consultation, when designing the first Juniper EMUs. The sixth Class 458 vehicle was already on the production line at Washwood Heath when the definitive RVAR was published.
At which point it became clear that a number of last minute changes had been made to the consultation document which meant that both the Class 458 and Class 460 Gatwick Express units would be non-compliant when the RVAR became law on 1 November 1998 .
However, the issues with both trains were minor. For example, the height of the letters on the internal passenger information displays is 32mm compared with the 35mm specified in the RVAR. And some hand-rails were a few millimetres out.
Additionally the Gatwick Express units have only two wheelchair spaces compared with the three required by the RVAR for an eight car train. However, one of the eight cars is largely devoted to luggage.
As you can see, we are into angel choreography here. Even so, the exemptions were hard fought requiring Alstom, owner Porterbrook and operators SWT and Gatwick Express to produce pages of justification. These original exemptions have now expired and the orders in the lords were for extensions to 2006 for the Class 458 and 2011 for the Class 460
Hull Trains Class 222 exemption is something you couldn't make up. The issue is the force required to deploy the nappy changing table in the disabled toilet. Similar exemptions have already been made for other stock.
Section 14(b) of the RVAR states that ‘any door control device, or other equipment inside the toilet cubicle shall be operable by the exertion of a force of not more than 15 Newtons '. And as you know Captain Deltic's rule of thumb is that a Newton (N) is roughly the same as the force needed to hold an apple – say 4 ½ ounces' So we are looking at a force of just over 4lb.
Now nappy tables have to go down and up. But Section 14(b) doesn't specify direction.
And if you can move the table with 15N in one direction, it will almost certainly need more than 15N in the other. So which action should meet Section 14(b)?
Current experience with our 10 week old grand daughter suggests that you need to be able to apply a force well in excess of 15N to carry a baby let alone change a nappy. Thus train builders have assumed that compliance with Section 14(b) should assist a disabled person who enters the toilet and finds the nappy changing table left in the down position.
As a result, gas struts have been fitted to the table to reduce the force needed to return it to the stowed position. These struts also cushion the lowering action, but increase the force needed to pull the table down above 15N.
At which point Lord Addington, the Lib-Dems spokesman on disability in the House of Lords takes the floor. Now I am going to be unkind to Lord A, so I should say in his defence that my chums in the Lords tell me that he is a very nice man and an exceptionally hard working hereditary peer.
Lord Addington decided to oppose all three orders on the grounds that there had been around 50 exemptions since the RVAR came into force and it couldn't go on. He argued that the small corner sweetshop owner ‘who does not receive a government subsidy now has to comply' with disability legislation while the government is ‘pumping money' into the TOCs ‘and then allowing them not to comply in very minor matters'.
Now this very nice, hardworking man has been the Lib-Dem's disability spokesman for 10 years and, yet, apparently, doesn't understand that DDA Part 3 does not mandate but requires the owners of premises (including stations) to do what is reasonable to provide disabled access.
In the case of the ‘2mm' (sic) discrepancy in the size of the ‘display screen' he argued ‘if that (35mm) is the standard … and it is easy to change, why are we not saying it should be changed? That is the point of this discussion'. He also thought that in the case of the Gatwick Express wheelchair spaces ‘we will have to draw a line in the sand somewhere'.
He was not alone in being confused. Commenting on the Class 222 exemption Lord Rotherwick grasped the wrong side of the nappy and declared ‘It seems that parents will have to wait another 15 years to be able to change a nappy on those trains'. In fact, had Lord Addington's ambush succeeded the nappy changing tables would have had to be locked out of use.
Fortunately, the forces of reason were at hand, in the form of the feared Railway Lords, Bradshaw, Faulkner and Snape. Labour's transport spokesman in the Lords, Lord Davies was also particularly well briefed on the detail of the three orders. Between them they took Lord Addington's arguments apart.
Put-downs come with style in the upper chamber. After Lord Addington had argued that the ‘monitors' could be easily put right and it could have been done more quickly, ‘even if at some expense and inconvenience to the operator', Lord Davies replied, dryly, ‘the noble Lord might be a bit cavalier in his engineering knowledge with regard to the ease with which these things can be put right'.
Lord Davies then used the Class 222 nappy changing table to illustrate the point, concluding that it could not be changed ‘at the flick of the pen or a stroke of the screwdriver'. He also pointed out that the issues lord Addington had chosen to light on were ‘marginal' to the interests of the disabled and, in one case, ‘so marginal as to be almost infinitesimal', yet they would require substantial changes to the trains.
Under this combined assault, Lord Addington withdrew the motion. But, of course, and quite legitimately, he did not see reason.
Before withdrawing his blocking motion he explained that what had attracted him were the display screens which are ‘just a little bit too small and should have been changed'. He continued, ‘I regard disability as a civil rights issue. One needs to get information across properly. If it can be done, it should be done.' Regardless of cost, presumably.
Central surrenders at Thetford
In contrast to the Lords following this column's campaign to be positive and say ‘no', when Keith Roads' appeal over the Thetford station disabled access case (Informed Sources June/August 2004) came up we saw what happens when the railway is less than resolute. Remember that compliance with the Disability Discrimination Act (DDA) is based on reasonableness. Which means that in future cases, what is reasonable will be determined by case law.
As you will recall, Mr Roads took Central Trains to court because the TOC would not pay for a disabled access taxi to transfer him from the front of Thetford station to the Norwich-bound platform which was accessible only by a footbridge or an 800 yard trek over difficult roads and paths. At Norwich County Court in May, Judge o'Brien had ruled that bringing an accessible taxi from Norwich for the 800 yard journey, cost £45, was not reasonable.
Mr Roads has been supported throughout by the Disability Rights Commission (DRC). It was clear from the media interviews after the case that the DRC saw this as the test case for the entire industry.
You might think that Network Rail, or the train operators, or even the SRA might have thought it a precedent worth fighting. Cleverly the DRC had withdrawn its action against Railtrack as a co-defendant before the Norwich hearing. This left Central Trains defending the appeal as the station operator.
So on 5 November Richard Lissack QC led for the DRC. He argued that unlike other Acts designed to change social attitudes, the Race Relations Act and the Sex Discrimination Act for example, the DDA sought not parity of treatment but ‘positive discrimination' in favour of the disabled. In other words they had to receive preferential treatment just to be equal.
While the facts of the case were agreed, it was suggested that the original judgement was flawed in a number of respects, particularly when it came to the reasonableness of Central's alternative. This was to travel back to Ely where there was level access to both platforms and transfer to a Norwich train, adding around an hour to the journey.
Even though evidence had been given that other disabled passengers in wheelchairs had been able to get to the Norwich platform, it was argued that this did not mean that Mr Roads had to do likewise. This is hard to refute since different people have different perceptions of risk and difficulty.
It had been accepted at the original hearing that the case had been set up. Mr Roads had gone to Thetford in December 2002 solely to protest about the lack of accessibility. This, argued Mr Lissack did not diminish the justification for Mr Roads' complaint.
Finally, at the Case Management Conference, it had been agreed between the parties that the question of the funding of an accessible footbridge would not be cited in Central's defence. This was a fatal error of judgement by Central. DRC had proposed calling an expert witness on rail disability funding and a thorough cross examination would have put the Commission under pressure.
Mr Lissack was thus free to argue that if funding of a footbridge was irrelevant, so were all funding issues – including the cost of the accessible taxi. Judge O'Brien had ruled it unreasonable to bring an accessible minibus from Norwich on the grounds of cost, ergo the test by which he had determined reasonableness was flawed.
Central seemed to have given up by now. The operator's response apparently did not make any attempt to outline the rail industry's position on disability in general and DDA Part III in particular. Nor was anything said about the options and costs of making both platforms accessible.
On detail, the fact that the Taxi Vehicle Accessibility Regulations are not in force, hence the need to call a taxi from Norwich was not argued. Nor the fact that Mr Roads used an electric wheelchair, which is larger and heavier than the DDA “Reference Wheelchair”. This meant that it could not be carried by a by standard accessible black cab. Nor that to get to the station Mr Roads had needed a minibus with a chair lift.
Mr Roads and the DRC must have thought Christmas had come early. The judges did not even ask Mr Lissack to respond to the TOC's pleadings.
In his ruling Judge Sedley, emphasised that the case was unique by virtue of the circumstances. But that was is not how the DRC saw it in their jubilant press release.
‘ Train operating companies were today issued with a stark legal warning about making stations accessible to disabled people, following an appeal court judgement. The landmark judgement follows a case taken by Keith Roads against Central Trains under the Disability Discrimination Act (DDA) 1999 duties'.
Mr Roads was quoted as saying ‘I am delighted that, at last, something is going to be done about the lack of access at Thetford Station. The half-mile journey wheelchair-users are forced to make is extremely perilous, consisting of potholes, steep hills, a narrow bridge, unpaved roads with two-way traffic and a muddy dirt-track. I would be taking my life into my own hands undertaking a journey like that'.
A DRC spokesperson added, ‘t he DRC is very pleased that justice has been done. This is a wakeup call to all train operating companies. We hope that this judgement will mean that the hundred or so other stations where this sort of access issue causes problems for disabled people will now seek to mend their ways'.
Don't you love that ‘mend their ways'? It gets even more hand wringing. ‘ Keith's experiences typify the appalling level of service that disabled people endure every day when trying to use transport. According to interim research by Tripscope some 60 per cent of stations in Britain are simply not accessible to disabled people'.
Anyway, enough emoting. What the Appeal Court had to do was look at this particular case and see whether Central's options were reasonable.
Note that Mr Roads had notified Central of his journey through DPRS. And because the funding issue had been declined the test of reasonableness was to compare Central's alternative journey with the ‘free' accessible taxi.
Thus the Appeal Court identified two errors in the original judgement: Central's alternatives were not reasonable and Judge O'Brien should not have taken into account the cost of the accessible taxi.
So where does this leave us on DDA Part III? In my view the DRC have been too clever by three quarters.
Disabled access affects many more people than those in wheelchairs. Phoning DPRS and getting an accessible taxi laid on does nothing for all the others using Thetford station – mums with wheelchairs, the frail and elderly.
What is needed is physical level access, not a rubber tyred moving pavement for the occasional wheelchair user. Thetford shows us that DDA Part III is too important to be left to the TOCs on the flimsy excuse that they are the station operators.
Network Rail owns the stations and Network Rail should take over DDA compliance with a coordinated Network-wide programme of cost effective measures.
Government supports 2025 end date
Another accessibility battle ground is the end date by which time all rail vehicles must be RVAR compliant. The Transport Select Committee, which wants the Rolling Stock Companies brought to heel, favours 2017, which would either cost a lot of money or see trains scrapped prematurely.
Thanks to Lord Berkeley, we now know where the government stands. Responding to a question from Lord B on 28 October, Lord Davies of Oldham t he Government's preferred date is 2025. He estimated the total capital costs of meeting that date as £33.4 million for surface rail and £71.1 million for the London Underground.
Lord Davies added that, ‘the Strategic Rail Authority is planning to consult soon on its draft disability strategy'. Given the SRA's record to date let's hope that the DfT Railways Directorate vet it first.
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