Last reviewed 27 May 2020

Roland Pelly and Christopher Wagner of Pellys Transport & Regulatory Law provide an update on PSVAR and the current delays and exemptions to the roll-out of the accessibility provisions.

The original date for the implementation of the final provisions of the Public Service Vehicle Accessibility Regulations 2000 (PSVAR) was 1 January 2020. By way of a brief reminder, those final provisions relate specifically to coaches designed to carry more than 22 passengers and either manufactured before 31 October 2000 or first used before 1 January 2005.

However, in the light of significant backlash from the industry — in particular in relation to the unavailability of vehicles which comply with the specifications required under the regulations (or the vast costs involved in fitting the necessary equipment to vehicles to bring them up to the necessary standards) — the DfT has announced a number of delays and exemptions to the implementation of the rules (or, strictly “legally” speaking, to their enforcement — none of the exemptions are the subject of amending legislation).

Temporary Exemptions — School Services

Even as early as November 2019, the DfT was already announcing a temporary exemption for certain home to school provisions, with the issue of a letter to all local authorities and schools that procure home to school services. The purpose of the letter was to introduce a process by which it was possible to submit an application for temporary exemption from PSVAR compliance for vehicles which did not meet the required accessibility standards and which were used to provide predominantly free home to school services, but with the capacity to sell spare seats for fares. The requirement for eligibility to apply for this exemption via the organisation procuring the service was that a separate fare must be paid by (or for) 20% or less of the passengers entitled to travel. Operators seeking to benefit from this exemption would need to provide specific details of the vehicles for which the exemption was sought. If successful, the exemption would apply for two years.

However, in early January 2020, a broader exemption was introduced by the DfT following discussions with the Confederation for Passenger Transport (CPT) which centred upon the widescale confusion in the industry as to the application of PSVAR for home to school transport where some or all of the seats on vehicles are sold. This time, the exemption allowed operators of home to school services procured by schools and colleges on which most users pay a separate fare additional time within which to ensure that the vehicles used on those services are PSVAR-compliant.

The exemption only applies to transport services procured directly by a school or college, or where a local authority procures the services directly on behalf of a school or college (but would not otherwise have a duty to provide a transport service).

The present date for the expiry of this exemption is 31 July 2020 — a deadline designed, in theory, to allow schools and colleges the opportunity to procure fully accessible transport services in time for the 2020–2021 academic year. By now, schools and local authorities should have provided operators a copy of the letter and accompanying spreadsheet issued by the DfT to enable operators to apply for coverage under the exemption and any applications should have been submitted.

What is crucial for those operators who are presently benefiting is that despite ongoing campaigning by CPT, there is no guarantee that the exemption will be further extended — 31 July 2020 will come quickly, and operators should not let the clock tick out in the hope of further exemptions.

Temporary Exemptions — Rail Replacement

The story is similar in relation to rail replacement services. In December 2019, the DfT announced provisions for an initial month-long exemption from PSVAR requirements for operators carrying out rail replacement services, with an initial deadline for applications to take advantage of the exemption of 20 December 2019. At the time, the DfT made clear that operators should do everything possible to source PSVAR-compliant vehicles in the first instance, and where non-compliant vehicles were necessary, that operators should make additional arrangements to ensure accessible alternative transport was also available to users of rail replacement services.

In particular, the following was made clear.

  1. The exemption applies only to coaches and buses used to provide Rail Replacement services contracted by, or under direct control of, the relevant Train Operating Company (TOC).

  2. The exemption only applies to services used to convey rail passengers; coaches deployed to carry out these services cannot carry anybody not using the service in place of a scheduled rail service.

  3. The scheduled rail service for which the vehicles are being used must be subject to a published TOC timetable, and must have been cancelled due a scheduled blockade or an un-planned incident or event.

That initial exemption was extended by a further three months until 30 April 2020 – and has now been further extended so that it is in effect until 31 December 2020, in the light of concerns raised by the Rail Delivery Group (RDG).

The letter announcing the latest extended period of exemption (dated 21 April 2020 and addressed directly to the Chief Executive of the RDG) explains that a new period during which operators can apply for time-limited authorisations to use non-PSVAR compliant vehicles for rail replacement work is in effect for a period of 8 months, running from 1 May until 31 December 2020.

Importantly for operators, special authorisations issued under earlier exemptions no longer apply, so operators will need to re-apply — forms are available from TOCs or rail replacement providers and should be sent to the RDG when complete. Until explicit authorisation is confirmed following a new or renewed application, non-PSVAR compliant vehicles cannot be used for rail replacement work.

For TOCs, the 21 April letter imposes certain conditions, namely that:

  • where possible, TOCs must source and use PSVAR compliant vehicles and only use a non-compliant vehicle that has been granted a special authorisation (as above) when all other compliant options have been exhausted

  • when no PSVAR compliant vehicle is available, TOCs must provide alternative accessible transport for disabled passengers, offering the same levels of service as those for non-disabled passengers

  • arrangements must be made in advance during planned engineering works to ensure such alternative accessible transport is readily available.

What’s next?

The letter outlining the extension to the rail replacement exemption period makes clear that the DfT will be closely monitoring levels of PSVAR compliance, the use of alternatives to non-PSVAR compliant vehicles and the levels of complaints, all of which will likely inform what further steps may be taken (including any further exemptions).

As things presently stand, no further extensions to the home-to-school exemption have been announced — but anecdotally it remains the case that the industry as a whole is not ready for full PSVAR compliance; reports in the industry press appear to suggest that the supply problem has yet to be resolved. It is understood that the Confederation for Passenger Transport is seeking to work closely with the DfT in order to hit upon a resolution which is workable for the industry, without losing sight of the importance of the underlying basis for the implementation of PSVAR, ie to ensure the availability of accessible transport services.

What is plain is that we have not heard the last of the “PSVAR problem”. Watch this space for further updates.