Last reviewed 10 January 2020
Roland Pelly and Christopher Wagner of Pellys Transport & Regulatory Law look at how, in particular, the PSV accessibility regulations will capture operators of affected coaches from 1 January 2020 when it comes to school transport services.
As has been widely reported in the recent trade press, 1 January 2020 is the date when the final provisions of the Public Service Vehicle Accessibility Regulations 2000 (PSVAR) — which relate specifically to coaches designed to carry more than 22 passengers and either manufactured before 31 October 2000 or first used before 31 December 2000 — come into effect.
These provisions are likely to affect a number of operators using older coaches for any number of uses. Here, the application of the regulations specifically to school transport is considered.
There are a number of differing views expressed or referred to by distinguished authors in the trade press and to date, the writers are not aware that any of the possible interpretations have been tested in any court. Operators in any doubt as to the potential legality of any specific journey in contemplation should undoubtedly seek informed professional advice relating to the facts of the actual operation of concern.
Since writing this feature article in November 2019, discussions have been taking place between the DfT and industry representatives on the detail relating to PSVAR. The detail will be updated in the topic on Public Service Vehicles Accessibility Regulations as soon as they become available.
The undoubted law
PSVAR will apply to all coaches having more than 22 passenger seats as and from 1 January 2020 which come within the definition of a “regulated public service vehicle”. All such vehicles will require a conformity certificate from that date when being used as a regulated public service vehicle.
As with all other regulation relating to PSV use, it is the use to which the vehicle is being put that determines whether the vehicle will be captured by PSVAR. These regulations require all vehicles being used either to provide a “Local Service” or a “Scheduled Service” to have a conformity certificate (and thus to comply with all of the accessibility requirements set out in the applicable schedules to the regulations).
There are various exemptions from the regulations — but only two that are likely to have any relevance to ordinary PSV operation ie:
vehicles used under a Section 19 permit
vehicles in respect of which 20 years have elapsed since the date of first use and which are not used to provide a local service or a scheduled service for more than 20 days in any calendar year.
In practice, it is unlikely that either of these exempted uses will be of any attraction to any operator for home to school transport.
Scheduled and Local Services
PSVAR defines “scheduled service” as meaning a service using one or more public service vehicles, for the carriage of passengers at separate fares:
along specified routes
at specified times
with passengers being taken up and set down at predetermined stopping points; but does not include a tour service.
PSVAR uses the same definition of “local service” as in the Transport Act 1985; in short, the carriage of passengers at separate fares, unless (in simple terms) stops are 15 or more miles apart, or unless the service meets the conditions of Part III, Schedule 1 of the Public Passenger Vehicles Act 1981 (ie comprises of a trip organised privately by persons acting independently of vehicle operators).
Subject to an assessment of the definition of “separate fares” (for which, see below), most home to school transport is likely to fall within the definition of a scheduled service, with pupils being picked up and dropped off at specified times on set routes.
As to whether school transport can be a “local service”, this will of course depend on the distances between stops, but is also likely to turn on the exact terms of the contract for carriage. One of the Part III conditions which brings the journey outside the definition of a local service is that “no differentiation of fares for the journey on the basis of distance or of time must be made”. School transport contracts are likely to include different fares for different pupils depending on the distance from home to school. As soon as one of the Part III conditions fails to apply, the exemption fails; so as long as the other criteria for definition of a local service do apply, then the journey is a local service.
While generally, the Transport Act 1985 requires local services to be registered with the Traffic Commissioner, PSVAR simply relies on the definition of a local service under a specific section in that Act — so a service does not need to be registered for it to be defined as a “local service” for the purposes of PSVAR.
There is a school of thought suggesting that a home to school service could be described as a “tour” given that, in the course of a day, passengers are taken to a specific location and returned to their point of departure (and as above, tours are exempt). Operators would be well advised not to seek to rely on this interpretation; a court would be likely to conclude that this plainly was not the intention of the regulations.
Given those definitions, most home to school services are likely to be defined as either scheduled or local services — unless passengers are not being carried at separate fares. But when is this the case?
In reality, very few journeys are likely not to be at separate fares.
In basic terms, a fare is any payment which is made for anything that includes the right to be carried on a vehicle, whether directly or indirectly, and no matter who pays it. For example, students of a private school, for which the fees paid include a home to school transport provision (even where a payment explicitly for transport is not mentioned) undoubtedly would be viewed as paying separate fares.
For home to school contracts, the same applies. Whether the person carried pays, the school pays or a local authority pays, unless the operator itself is providing the service entirely for free, the carriage of each pupil is likely to be interpreted as being carriage at separate fares.
It is, in theory, possible that such carriage could be held not to be at separate fares, but this will turn on very careful and specific terms of tender and contractual documentation as between the operator and whoever is paying: in essence, there can be no contractual clause providing for any relationship or variation between passenger numbers and payment — or even the implicit suggestion of any such relationship. For obvious commercial reasons, this is unlikely: in many contracts paying parties require reductions if pupil numbers drop off and operators seek increases if pupil numbers expand. Even if this is not the case, the legal authorities suggest that courts are likely to find that most contracts — even if not explicitly — provide for carriage at separate fares.
The accessibility requirements themselves
Once the application of the PSVAR can be established, the accessibility requirements themselves are relatively straightforward, albeit subject to detailed technical specification.
From 1 January 2020, all affected coaches in use will require certificates confirming conformity to the provisions of both Schedule 1 and Schedule 3 of the Regulations. Schedule 1 deals with wheelchair accessibility requirements, while Schedule 3 deals with more general accessibility requirements including, among others, specifications for seats, steps, floors/gangways and handrails.
Options for Operators and Local Authorities
Operators need to establish first of all whether the journeys are subject to separate fares, which means knowing exactly the terms of every contract under which the operator is providing the transport. As soon as any passenger is paying a fare (directly or indirectly), if the operation comes within the definition of a scheduled or local service PSVAR will apply — unless the operator is in a position to rely on one of the specified exemptions from the regulations.
Using a fleet of smaller vehicles with 22 or fewer passenger seats would obviously achieve this.
Ensuring that vehicles first used over 20 years ago are not used on more than 20 days per year for local or scheduled services is another, albeit very unlikely, solution.
For local authorities, contracts could be changed so that separate fares are clearly not in operation.
That said, operators should be wary of seeking to avoid being captured by PSVAR given the rationale for the regulations, which are fundamentally about ensuring accessibility. It should be borne in mind that Local Authorities may refuse to agree to change contracts solely for the purpose of enabling operators to operate outside PSVAR.
Similarly, Courts and Traffic Commissioners are likely to strain to support any prosecution or Public Inquiry involving allegations of use without a required certificate of conformity and may bend over backwards to find against any operator seeking to rely on a complex legal interpretation designed to circumvent compliance with PSVAR.
Where the regulations do apply, operators will realistically be left with two options:
ensuring that coaches not captured by the regulations prior to 1 January 2020 are compliant with the accessibility requirements from that date (which in many cases may mean either costly retrofits or replacing vehicles) or else switching coaches for already compliant vehicles for all local or scheduled services where separate fares are paid.
Further details are outlined in the topic on Public Service Vehicles Accessibility Regulations.