Background
The Public Services Vehicles Accessibility Regulations 2000, known as PSVAR, require buses and coaches designed to carry over twenty-two passengers on local and scheduled routes to incorporate features to enable disabled people to travel on them comfortably and safely, including a wheelchair space and a ramp or lift. The requirement to incorporate such features obviously has commercial and financial consequences for operators and their customers.
The Regulations have applied progressively to vehicles over the past nineteen years, including coaches manufactured from 2005 onwards. However, from 1 January 2020, any remaining coaches, over 22 carrying capacity and used on local or scheduled services, which were manufactured before 2005 fell under the remit of the Regulations. For many operators providing home school transport, this deadline crystallised the need for additional guidance on the scope of the Regulations and how they applied to schools’ transport.
Guidance has now been provided by the Department for Transport (DfT) and this article provides a brief summary of the current position and what that recent guidance says.
The issue
The DfT has been under increasing pressure over the last few months to address an ongoing concern amongst coach operators in respect of the Regulations. Confusion has arisen as to whether the Regulations apply (amongst others) to any home-to school service on which some or all of the seats are sold (rather than provided free of charge). Where a proportion of seats are sold, such services are also known as “mixed services”.
The DfT confirmed in a letter dated 21 November 2019, that in their opinion these particular services are covered by the Regulations and operators must either already comply with the Regulations, or comply by 1st January 2020, depending on the age of the vehicle in question.
The DfT acknowledged, however, the high degree of misunderstanding in the industry, the schools and local authorities of these obligations. It was also noted in the November Letter that many providers of fully paid-for and mixed home-to school services would not be able to provide compliant services currently, or from January 2020 onwards and that many providers would consequently be obliged to cease to provide mixed services, rather than secure appropriate vehicles.
Exemptions
Under the s178 Equality Act 2010 there is power for the DfT to grant special authorisations for particular vehicles and operations from the obligations of PSVAR.
Given the problem identified and accepted by the DfT in their November letter this special authorisation power is an obvious route to mitigate the issue.
However, even though the issue obviously affected a massive proportion of the home school coach provision, the government addressed this initially by focusing only on home school transport provided by local authorities where the bulk of that provision, i.e. 80% or more on any individual coach, was provided for the benefit of so called “entitled” children but where a small sub-set of the seats available on the vehicles were sold to other children wanting to access the same school or schools.
The November letter indicated that such operators could apply for an exemption for the relevant vehicles for a period initially of two years but that this may potentially be extended for up to four years depending on the success of acquisition of new PSVAR compliant vehicles over the intervening period. This immediately, subject to the bureaucratic exercise of actually applying for the relevant vehicles’ exemptions, eased the pressure on local authorities and the relevant private sector companies who provided own school transport on their behalf.
However, this did not provide a solution to the still very large numbers of home school transport that are provided by operators who are not working under the local authority contract or who are working under contracts either with a local authority or with a school direct to provide home school transport where more than 20% of the seats are occupied by children who are actually paying, directly or indirectly, for their right to be carried.
This has now been dealt with in a guidance letter issued by the DfT on the 30 December 2019 whereby such operators can apply for an exemption from the Regulations in a similar way. However, this exemption will only be granted for a period for a period of up to six months, if they are struggling to find PSVAR compliant vehicles to operate such services.
Commentary
Both the November letter and the December letter set out the background in, similar terms, to the requirement for the Regulations to apply to such services and it is clear that the DfT has driven a stark distinction as to the timescale of the exemption between schools transport which is provided predominantly for children who are not paying for their carriage in any way and those who provide school home, schools transport for children where either all or more than 20% are paying.
This distinction is not explained in the letters and given that the whole sector has the same issue it is not easy to reconcile the vastly differing timescales.
The problem is not simply the fact that this provision would have been hugely disruptive if operators were not allowed to operate vehicles which were non-compliant from the 1 January 2020 (or indeed historically in reality), the problem was also that there appears to be insufficient PSVAR compliant vehicles, new and most importantly affordable second hand vehicles, available to this sector to replace the current fleet of non PSVAR compliant coaches (as opposed to buses) which are being used. Ultimately of course this will resolve itself as vehicles become available both new and second hand from the long-distance express route provided to carriers, and new orders for example.
In creating the timescale distinction, it is not clear how the DfT understands that the requirements will be met by the schools and operators where more than 20% are paying passengers, by the start of the school year in September 2020. It may well be, therefore, that pressure will be put on the DFT to further extend the initial six-month period.
Conclusion
In the meantime, however, it is extremely important that operators are aware of the fact, firstly, of whichever category they fit within so they can and do make the appropriate application and secondly, if they are within the category of carrying for schools where more than 20% of the children are paying for their seat, they must make sure they are aware this cannot continue after the July 2020 deadline as set out in the December letter, because to do so would commit offences under the PSVAR regulations, the Equality Act 2010 and expose them to other liabilities.
It is also very important that even if operators do obtain exemption for their vehicles, they comply with the obligation to carry disabled children in suitable vehicles as set out in the November letter and the December letter.
All carriers of home school children must read both letters and make the appropriate applications and if they need assistance doing this, it is important to get this quickly rather than wait until the last minute. The letters can be found here and here.
It is also important that all operators keep an eye on the trade associations and the DfT website for changes particularly in relation to the more than 20% carriers for whom there is only a very short lead time to resolve the problem before the start of the next school year.
If you require further information, please contact a member of our Regulatory Team on 01254 828300 or email marketing@backhouses.co.uk.