Transparency Now: no more secret talks about the future of our railway

Secret talks between government and train companies have been underway for the past two weeks. There is a crisis over the future of the railway and big decisions will be taken imminently – including the question of public ownership.

The Department for Transport had been hoping to convert the rail franchise agreements to long-term concession models; the rumoured conclusion of the Williams Rail Review. However, according to sources in the Railway Gazette, this option may now be off the table due to a potential breach of competition law. This leaves the government with an urgent dilemma – extend the ’emergency measures agreements’ (EMAs) indefinitely, or renationalise the franchises via the ‘Operator of Last Resort’ (OLR).

With some train companies reportedly asking for 18 month extensions, the government is now under huge pressure to make a decision on what will happen when the EMAs run out in September. And it’s possible that a decision could be made as soon as next week.

Panic in the corridors of Whitehall

At the beginning of 2020, the rail franchising system was already collapsing along legal and commercial lines. Several ‘zombie franchises’ were thought to be on the verge of financial failure, including West Midlands Trains, South Western Railway, TransPennine Express and Greater Anglia. And a major legal case about railway pensions had already cost tens – if not hundreds – of millions of taxpayers’ money. Details about the outcome of the Stagecoach court case remain shrouded in secrecy, but it was reported in March that the switch to EMAs means that the government may now be responsible for the entire £8 billion pension deficit.

The ’emergency measures agreements’ have led to an extremely precarious contractual situation, because any return to previous franchise agreements would see the train companies go bust within days. According to an industry source in the Railway Gazette, if only 85% of passengers returned to rail travel after the covid crisis, then most franchises would go bust on that basis alone.

The only alternative to EMAs is to bring some or all franchises into public ownership. The government has been quietly preparing for this ‘plan B’ since the beginning of April, setting up enough ‘Operators of Last Resort’ (OLRs) to take over every rail franchise in the country. At least £20 million was invested in OLRs last year, which was the solution used to renationalise Northern back in March.

Our urgent call for public scrutiny

The corona pandemic has pushed public transport into a long-term crisis in terms of patronage, with an instant drop of 95% in passenger numbers. And huge limits on capacity are now required for reasons of public health, with most of the network running at less than 20% capacity.

The railway costs about £14 billion per year, and the majority of this is paid for by passengers (£10.4 billion from ticket sales and £4.1 billion taxpayer subsidy in 2018-19). With ticket revenue now forecast to be just £2 billion per year, we are shifting rapidly to a railway where the vast majority of costs will be paid for by the taxpayer, the drop in passengers creating an £8 billion shortfall.

This completely upturns the balance of funding that had been increasingly weighted towards fare revenue for decades. In return we must see transparency and accountability from the government about transport policy, and the guarantee that we are getting the best possible value for money and social/economic benefits from the public transport system.

Help us demand transparency

In the era of corona virus and recovery, transport has become an essential public service and there is absolutely no excuse to allow decisions on transport policy to remain shrouded in this much secrecy. It is on the government to explain how their decisions are in the best interests of the public and every MP should be doing their job and demanding transparency on this issue before these decisions are made.

The Williams Review was supposed to restore ‘trust’ in the public and solve the strucural chaos that caused the 2018 timetable collapse. However, the review was never published and as a result we are two years overdue some government accountability and a solution that urgently restructures the railway. In the context of a global health pandemic these issues are now doubly important and conversations about 1) railway structure and 2) funding must be had urgently and with full public involvement and scrutiny. It is up to the government to explain and justify the policy they go forward with, and it’s every politician’s job to urgently demand this.

We’re sharing our concerns with the Transport Committee, Public Accounts Committee and National Audit Office. We’ll also be calling on MPs and opposition parties to more actively scrutinise the government’s decisions on transport.

Please help by writing to your MP and submitting your concerns to the Transport Select Committee, who are requesting submissions from the public until Monday 29th June.

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Grant Shapps and the Season Ticket Refund Rip-Off

In a significant victory for our campaign, the Chair of the Transport Select Committee, Huw Merriman, has publicly supported our demand for pro-rata refunds on season tickets. In an interview with BBC South East, he called the current arrangements a “rip-off” and said he would be calling on the government and rail industry to give full refunds.

We welcome Huw Merriman’s statement and call on the Transport Minister Grant Shapps to act decisively and follow through on his promise to ensure that “no-one is unfairly out of pocket for doing the right thing.”

[Update: on 24th April, the Chair of the Transport Select Committee wrote to Grant Shapps urging him to ensure: 1. pro-rata refunds 2. the option of a ticket suspension and 3. a waiving of the £10 admin fee. A response is due on 30th April.]

Mixed messages from the government on season tickets:

Since the lockdown began, the government and rail industry have changed the refund arrangements several times, leading to widespread confusion among passengers. On 25th March, Grant Shapps assured the Transport Select Committee that he had arranged pro-rata refunds. In fact, the rail industry’s unfair refund system remains in place – and commuters have been losing out on hundreds of pounds.

shapps tweetThe Season Ticket Refund Rip-Off:

The government is bailing out train companies to the tune of £600 million per month. And yet, the rail industry has so far refused to give pro-rata refunds on season tickets; instead relying on a vastly unfair refund system. The whole process is shrouded in mystery for passengers, so we created a graph to show exactly how much people could be losing:

season ticket graph

The graph shows that the less time you had left on your season ticket at the time of the lockdown, the more value you’d lose. In this example, a Brighton to London commuter who had held their annual for 1 month would lose £83 compared to pro-rata. After 3 months, they’d lose £370; after 6 months they’d lose £744; and after 9 months, £1,118.

We’re demanding full refunds for all passengers:

It’s clear from our recent discussion on BBC Radio Four’s ‘You And Yours’ program that the rail industry will not budge on this issue – refusing to give pro-rata refunds OR the option of a season ticket suspension. But, under new corona virus legislation, the Transport Minister Grant Shapps is now in full control of the railways – and he has already promised pro-rata refunds. So, why won’t the train companies do what Grant Shapps told them to do? And who is really in charge here?

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Stagecoach vs the DfT: will their high court battle lead to the total collapse of franchising?

Stagecoach and other operators began their high court challenge last week, claiming that the Department for Transport had mismanaged the bidding process for three different franchises: East Midlands, West Coast Intercity, and Southeastern. They’re seeking a multimillion compensation payout and a judicial review, which could result in the East Midlands and West Coast franchise awards being declared invalid.

The cause of the legal dispute is a change made by the DfT to pension liability, meaning that the government would no longer be the final guarantor of pension shortfalls. Last year, the Rail Delivery Group said the Pension Regulator had demanded “immediate and significant contributions worth £2.6bn or more.” The Pension Regulator has put the total railway pensions deficit at £7.5 billion, but recent analysis reported in the FT suggests it could be as high as £11 billion.

The court case is shrouded in commercial confidentiality. Yet the political fallout could be unprecedented, with the possibility of the West Coast (Avanti) and East Midlands (EMR) franchises being revoked; and the strong likelihood of a national rail strike if workers’ pensions are affected. Most worryingly of all, there are now rumours circulating in the rail and financial press that the Williams Rail Review will not be released, with its recommendations going straight into a government White Paper.

We’re forced to ask – can there be any credibility whatsoever in a White Paper that is being concocted under such legal pressures and perverse incentives? The rail franchising model is clearly in its death throes and we need to be more on guard than ever against the influence these toxic contractual relationships might be having in the writing of new legislation.

Week One: court update

1. Arriva settled their claim on the eve of the court case. The amount of compensation paid to the company remains confidential.

On the first day of the court case, it was announced that Arriva had settled a related claim regarding their disqualification from the East Midlands bid for refusing to take on pension liability. The claim included the fact that DfT civil servants sent details of Stagecoach’s bid to the other competitor Abellio, which eventually won the franchise as the last bidder standing. Arriva refused comment to the press, but told the court that it had agreed to a compensation settlement “on terms confidential to both parties.” Arriva was previously reported to be claiming £200 million for its exclusion from the East Midlands franchise bid.

2. Stagecoach lawyers said the Railway Pensions Scheme was a ‘basket case’ and that rail franchising is ‘in crisis’ with the DfT accepting ‘unbelievable’ bids.

Jason Coppel QC, acting for the train operators, said that bidders had been expected to take “disproportionate” risks and that the successful bidders did not say “how they would manage and pay for” the additional pension liability. He argued that the crisis in rail franchising is “because of risks which the department has required [franchises] to assume or because of over-optimistic bids which the department should not have accepted.” In regard to the unresolved issue of pension liability, he called the Railway Pensions Scheme a “basket case” and said it would require extra funding ranging from “bad to off the scale”.

3. There were new, shocking revelations about civil service conduct in the era of Chris Grayling.

Lawyers argued that the DfT was responsible for a “long series of missteps and mistakes” when it was run by Chris Grayling between July 2016 – July 2019. The most shocking revelation of all came at the beginning of the week, when Jason Coppel QC revealed to the court that civil servants had a solution to the pensions dispute that had been approved by the Treasury – but did not share this with Chris Grayling. Civil servants are due to be cross-examined in the trial, including the highest-paid civil servant: Peter Wilkinson, MD of Passenger Services at the DfT.

4. The lack of transparency and accountability was cited as a cause of the rail franchising crisis.

Jason Coppel QC went on to criticise the DfT over the amount of evidence that has been declared a commercial secret, accusing them of hiding information that was merely “embarrassing”, rather than confidential. He said that DfT culture was “highly resistant to openness and accountability” and that the combination of the broken franchising system, railway pension deficit and culture of secrecy in the DfT had been an “accident waiting to happen”.

The trial continues for a further three weeks, with a decision due later in the year. Follow us on Facebook and Twitter for further updates.

 

 

 

 

Better Buses in Greater Manchester could help us fight injustice across the UK

The Greater Manchester bus consultation closes at midnight tonight, and we’re calling on friends and allies all over the country to join us in writing in before the deadline to urge Andy Burnham to re-regulate the city’s buses.

The consultation is open to those who visit the city as well as residents of GM, so if you care about Greater Manchester as much as we do, please join us in dropping a few lines ASAP: gmbusconsultation@ipsos-mori.com

The Fight for Greater Manchester’s Buses

In Spring 2019, we made a documentary about Better Buses for Greater Manchester, the campaign at the centre of a coalition of transport, anti-poverty and environmental activists calling for bus regulation in the city. In the process, we spoke to a range of passengers and campaigners, who argued that Manchester would benefit from a London-style bus system, including multi-modal ticketing and more local power and accountability over transport. Check out our 14-minute documentary for all the benefits bus regulation would bring, or read more on Better Buses for GM’s website.

Is the government’s bus legislation strong enough?

If Andy Burnham goes ahead with the decision to re-regulate, he will be the first Mayor to do so under powers in the 2017 Bus Services Act. But even getting this far into the process has been done with great difficulty and cost to the Greater Manchester Combined Authority. So, why is the process so complex?

Currently, only the elected Mayors of Combined Authorities have the powers to regulate buses, and to do so they have to get through a process that includes a series of business cases, consultation with bus operators, an auditor’s report and, finally, a public consultation. For local authorities outside these areas, the path to bus franchising is even more complex and they must submit extensive reports and proposals to the Department for Transport before they can even access these powers. You can read more about the legal process here.

Local authorities need MUCH more power & resources

Buses are the most popular form of public transport, used by 59% of all passengers. They are also the passengers most severely affected by regional inequalities; through the combination of ten years of austerity and a completely deregulated bus market. Yet bus fares are rising at a faster rate than rail fares, and over 3,000 routes have been cut in the UK since 2010. The situation is so bad in rural areas especially that the deregulated bus market was directly called out in the UN report on poverty last year, arguing that “abandoning people to the private market is incompatible with human rights requirements.”

After a staggering 45% cut in their funding over the last ten years, it is therefore unrealistic and actually irresponsible of the government to expect local authorities – especially those outside the big metro areas – to undertake the difficult and expensive process required to introduce bus regulation in their areas. The social, regional, and environmental need for action is obvious and urgent, but the simple fact is that current legislation isn’t strong enough to be of any significant use in changing the power balance that lies between passengers and major international transport corporations.

Bus passengers urgently need a seat at the table

Bus passengers have been the hardest-hit by austerity and change cannot come quickly enough. But there is little chance of that under the government’s current legislation. Local authorities need much more power and resources to even have a chance of beginning the process, and it shouldn’t be left to bus passengers to raise that demand. Our view is that the Bus Services Act 2017 has failed to achieve what the government promised it would, and that the most important priority for all bus passengers right now is to come together on a national level and demand further powers and resources for local authorities.

Private transport companies should have no right to fill our public space with political messages, as happened earlier this year when Stagecoach ran adverts against regulation on the side of their buses in Manchester. Though early threats of legal action from Stagecoach over bus franchising seemed to pass, the anxiety among campaigners and local authorities is very real and we’ve noticed it throughout years of talking to passengers all over the country. It is now a matter of public interest that the private transport companies are brought in line across both rail and bus services, as there is no hope of seeing an integrated transport system without this.

We note that bus companies have already created obstacles to Transport for the North’s plans for smart-ticketing, as reported by the Yorkshire Post last year. It is clearly the case that metro areas in the North will not get the multi-modal ticketing system they deserve without bus regulation. The current deregulated bus market not only disincentivises companies to collaborate, it actually prevents an Oyster-style ticketing system under competition law!

ABC’s submission to the GM bus consultation

We have sent our comments to the bus consultation, and urge you to contribute before the deadline at midnight tonight. A few lines to gmbusconsultation@ipsos-mori.com will be enough, to help make a real change that could set a precedent for bus services all over the country.

In our submission to the Greater Manchester consultation, we have strongly supported Andy Burnham’s plans for a regulated bus network, which will be the start of meaningful change to the GM economy, society and environment, through the necessary infrastructure of an integrated transport system. We have asked him to speak up for other local authorities and bus campaigners facing the same process.

The example of Greater Manchester shows how hard passengers have to work to challenge and reform this country’s failing public transport policy, where the power balance between passengers and transport companies is all wrong and absolutely riddled with private interests.

Write to us at contact@abcommuters.com

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No More Rail Reviews: It’s time to declare a National Crisis in Public Transport

At a time when rail francising is quite clearly collapsing, today’s 2.7% fare rise is an outrage. It’s another sign that the government and industry will continue to treat us like a captive market, meaning that we’re continually paying more while constantly receiving less. Today, we’ll be joining with passengers around the country to demand a nationwide fares freeze, in recognition of the fact that UK public transport is now at the point of social, economic, and environmental crisis.

Protests kick off at London Kings Cross at 8am and you can view the full schedule here.

A National Crisis in Public Transport

For the last ten years, rail fares have been rising at twice the speed of wages. For many commuters on a lower income, this is more than just a matter of yearly injustice – they are being priced off the railway altogether.

And for bus passengers, things are even worse. Bus fares are rising at an even higher rate than rail, according to government statistics published last month – a shocking 3.3%. Unlike rail fares, bus fares outside of London are completely unregulated, meaning that bus companies can put up fares as and when they choose and do not even have to give a warning to passengers. Alongside the withdrawal of local investment and routes, this is pricing thousands of people out of bus travel, if they even have a service left at all.

Transport is the UK’s biggest polluting sector and the modal shift from car to public transport is a matter of urgency; not just for climate change but for public health, social equality and regional development.

No faith in the Williams Rail Review

The Williams Review was launched by the government soon after the timetable collapse of 2018, promising a ‘rail revolution’ and an end to the failed and fragmented franchising system. The government used this promise to evade a response to their leading role in the catastrophe; meaning that – to this day – they have not answered for the 2018 timetable crisis.

The reality of the Rail Review was nowhere near the ‘rail revolution’ promised. It had a narrow, ideological remit that excluded public ownership from the very start, and was also required to be ‘fiscally neutral’. The Rail Review that had begun by promising to ‘scrap franchising’ gradually lost all credibility as the government continued to award franchises regardless – East Midlands Trains and the West Coast Partnership.

Since the launch of the review in September 2018, Keith Williams has failed to report back. It is therefore without any public scrutiny that he approved the West Coast Partnership award to FirstGroup as ‘Williams compliant’ back in August. First Group shareholders, meanwhile, have been assured in the financial press that their future in UK rail looks more lucrative, thanks to an arrangement that protects the company from risk. The Financial Times has said that this is ‘the first time in ten years that a rail company has had financial protection.’

In a further twist to the tale, the government is being taken to court early this year over the by three different train companies over its franchising practices: Stagecoach, Virgin and Arriva. If it doesn’t go the government’s way, the cost to the taxpayer could be tens of millions – so how can we possibly trust the government to make further changes to the franchising system in the meantime?

Finally, we are extremely concerned about the excessive influence of the rail industry lobby on the outcome of the rail review. The Rail Delivery Group is calling for a mix of management contracts, concession-style models, and competitive intercity franchising, along with the proposal of an organising body resembling the ‘Strategic Rail Authority’ that was abolished in 2006. With franchising failing, it stands to reason that private train companies will be seeking to keep franchising alive, and the example of the West Coast Partnership already does not bode well for the promised ‘rail revolution’.

We’re calling for a Referendum on Public Ownership

Passengers and taxpayers are being denied a proper, democratic conversation about the future of our public transport system, which, in the era of Brexit, is now at the point of a national emergency if we are to build the equitable country we want to see now, and in the future.

At least two thirds of the public support public ownership and we urgently need a way to depoliticise the debate and move it forward in the national and public interest. We’re launching this demand to initiate a proper debate about transport policy, and we’ll soon be starting a Parliamentary petition, with the aim of achieving a Parliamentary debate on the matter of a public ownership referendum. We believe this is one of the few tools we have left for any kind of democratic conversation, most especially, the urgent need for scrutiny of the government’s plans for a new White Paper based on the Williams Review.

Over the next few months, we’ll be calling not only for a referendum, but for citizens assemblies and other forums to have a sensible, honest and expert discussion about the future we want for our country. The time of both climate and social crisis in transport is NOW, and we cannot afford to wait any longer.

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South Western Railway: passengers fight back on compensation

It is now Day Nine of the longest-running rail strike in UK history and South Western Railway passengers have been abandoned by the government. The guards dispute has been going on for almost four years across multiple UK rail franchises, and yet we are no closer to seeing a resolution. In fact, the situation is getting even worse, with passengers on SWR being expected to pay for the latest strike out of their own pockets.

If South Western Railway gets compensation for the strikes – why can’t passengers?

Season ticket holders are currently being denied compensation by SWR, despite the fact that its majority owner FirstGroup has been in negotiations with the Department for Transport for ‘strike amelioration’ compensation all year. Last week, the government again refused to clarify this amount, but the RMT union claims that SWR could be receiving as much as £86 million in strike compensation to date.

SWR out of our control

Any compensation for lost revenue paid to SWR by the government would be part of an agreement where industrial action is considered ‘outside of the train company’s control’ (force majeure):

SWR franchise agreement
From page 524 of the SWR franchise agreement, available to view here.

Any such arrangement would mean that SWR has been disincentivised to end the dispute and that the government is using taxpayers’ money to fund it. It would also suggest that passenger compensation has been treated as an afterthought by both rail industry and government- implying that nine days into the strike, they have not bothered to factor it into their negotiations.

The following tweets prove that SWR is sending mixed messages on compensation – even to the point of giving passengers false hope, and then retracting it a few days later:

SWR comparison tweets

Season ticket holders fight back!

Govia Thameslink Railway season ticket holders received a month’s compensation for industrial action in 2016, and again after GTR caused a major timetable crisis in 2018. There’s also a precedent on Northern, where season ticket holders were invited to claim compensation proportional to the daily price of their ticket during industrial action.

We urge SWR passengers not to accept the following excuse given out by the train company and would seriously question the validity of SWR’s advice on this issue:

SWR delay repay.PNG

Demand compensation under the Consumer Rights Act

  • Passengers are self-organising, with mass compensation claims to South Western Railway citing the Consumer Rights Act. There’s a template letter for season ticket holders here, and claims should be sent to customerrelations@swrailway.com. (Credit to @HSLcommuter for the template letter.)
  • If you bought your season ticket on a credit card, it is worth attempting to claim back a proportion of your season ticket using Section 75. Back in 2017, one of our members succeeded in doing this, and got a £2,400 refund on his season ticket through his Amex card. To find out more, check out Parts One, Two and Three of our guide, which is based on the method he used. The advice relates to Southern Rail, but the templates can be adapted to any train company.
  • If you’ve encountered additional expenses, such as taxis or hotel costs, be sure to make a claim to SWR under ‘consequential losses’. A Telegraph article from last week confirms that SWR will be considering these – despite the fact that the rail industry has been shown to be highly resistant to the idea of reimbursing passengers for their expenses in the past. Last year, it took an intervention from the consumer rights charity Which? to force the rail industry to include ‘consequential losses’ in the National Conditions of Carriage.
  • We hope to hear of many new consumer rights precedents being set in this area – please share your success stories via contact@abcommuters.com

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**Good luck to all passengers and please note the following disclaimer:

All sample letters provided by ABC are templates only. Any person using them does so at their own risk and is responsible for the content and the accuracy of the claim. ABC is not a party to any claim made in accordance with these guide or otherwise, and accepts no responsibility or liability for the content and/or the accuracy of any information included in any such claim. ABC does not guarantee the outcome of any claim and accepts no liability whatsoever in the event of a claim being unsuccessful.

 

 

 

 

 

Government forced to release Steer report on disabled access and driver only operation

In a major victory for our campaign, the government has just been forced to release the controversial Steer report on driver only operation (DOO) and disabled access. We had been pursuing this report through freedom of information requests to the Department for Transport since the summer, but without success. However, a copy was sent to Lilian Greenwood last month and – in one of her final acts as Chair of the Transport Select Committee – she has now published it on the Committee’s website.

With this decisive action, Lilian has ensured that the Steer report has been revealed before the general election ‘purdah’ period kicks in, which is a victory for campaigners – and an unexpected embarrassment for both the government and the rail industry.

A ‘wholly inadequate’ report – approach with ‘extreme caution’

We knew that the content of the Steer report would be controversial because of this damning letter from the Disabled Person’s Transport Committee (DPTAC), the DfT’s statutory advisors on accessibility. The letter urges ministers to approach the report with ‘extreme caution’, warning that it is ‘wholly inadequate’ in providing mitigations for the ‘toxic combination’ of driver only trains and unstaffed stations. Both the DPTAC letter and an accompanying email question whether the DfT and train operating companies are meeting their legal duties under the Equality Act.

As documents from DPTAC demonstrate, there is an ‘urgent and unmet need for research’ relating to disabled access, staffing levels and modes of operation. And it’s been three years since the Transport Select Committee first requested an equality impact assessment on the issue. The unacceptable delay to research in this area is in our view due to two reasons: 1) the absence of staff cannot be mitigated by any other means except staff – therefore it is logically impossible to create a report showing that DOO can be introduced without regressing disabled access by normalising pre-booking instead of asserting the right to spontaneous travel. 2) The fragmented industry structure and constrained contractual relationships create a toxic mix where research and policy is developed not in the public interest, but dominated by train operating companies (via the Rail Delivery Group) in the interests of profit.

The Steer report is supposed to give clear guidance on the mitigations required to assist and protect disabled passengers when there are no staff on the train or station. However, it drastically fails to meet that objective, and in fact demonstrates that no mitigation is possible – and therefore that a full staffing model is the only solution. The report reads precisely as if it was strung together from a desired conclusion, and its release is undoubtedly highly embarrassing for its authors, the government and the rail industry.

The Equality and Human Rights Commission is now treating access to transport as a priority issue and has established a fund to support legal challenges. Equality law firm Fry Law has even been sending out cameras to assist disabled passengers in capturing evidence for the inevitable legal cases to come. In a situation where unstaffed trains are calling at unstaffed stations about 10% of the time (according to DPTAC’s estimate), it can only be a matter of time before we see new legal precedents set in this area.

DOWNLOAD THE STEER REPORT HERE

For the rest of Lilian Greenwood’s correspondence on this topic, click here and here.

Important links on disabled access and destaffing:

2018 DTAC documents

2019 DPTAC documents

DPTAC’s submission to the Williams Rail Review

A history of our exposes on disabled access and driver only operation

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The fundamental right to travel: DPTAC gives us the ONLY advice we can trust on accessibility

The Disabled Persons Transport Advisory Committee (DPTAC) are statutory advisors to the Department for Transport on accessibility, making them the best possible source for an expert opinion with a front row seat on policy issues. We have previously published dozens of documents detailing their opposition to driver only operation and station destaffing; in which they cite their concerns about the potential Equality and Human Rights Committee legal action on this issue.

With this in mind, we believe that the Office of Rail and Road’s new ‘Accessible Travel Policy’ contains a regulatory hole around accessibility. Their new guidance to train companies aims to reduce the advance booking period from twenty-four to two hours by 2022, but includes no obligation to spontaneous ‘turn up and go’ travel. The ORR says that staffing issues are not part of its remit, but in view of their own duty under section 149 of the Equality Act, we asked them to comment. Unfortunately, they informed us that they would only be reconsidering this issue if government, the Williams Review or ‘other regulators’ took decisions in this policy area.

But, all is not lost. In the ORR’s July submission to the Williams Review, they place a strong emphasis on the need for a whole system approach to accessibility, based on clear criteria for both funding and staffing. And the ORR has made a very clear recommendation that this ‘whole system approach’ should be led by DPTAC.

Why are the DPTAC documents so important?

DPTAC’s May 2019 submission to the Williams Review provides exactly this outline of a ‘whole system’ approach. With the ORR’s backing, it is now undoubtedly the most important document on accessibility in the entire Williams Review:

DOWNLOAD HERE

quote bubble dptac orgs.PNGDPTAC recommends a ‘paradigm shift’ in which accessibility becomes a ‘fundamental’ part of the industry, rather then just an ‘add on’. Their May submission to the Williams Review includes a damning analysis of rail industry culture and structure; and calls for a ‘whole system’ approach that embeds accessibility ‘into the heart of what the rail industry does’. DPTAC also argues that rail vehicle accessibility legislation (TSI/RVAR) has provided a ‘relatively strong baseline’, and that there is now a strong case for new regulation with compliance deadlines for station accessibility. This would form part of a long-term funding strategy that could see the timeline to ‘full accessibility’ reduce from 100 to 40 years.

DPTAC’s May submission to the Williams Review is an essential report for all transport and disability rights campaigners and we ask for your help to spread it widely. It is important to remember that the government has set Williams’s remit to be ‘fiscally neutral’ – so it will take a great deal of campaigning and/or legal actions to get these demands over the line.

The ONLY quantified overview of rail accessibility?

Overview of UK rail accessibility

The biggest theme emerging from the latest DPTAC documents is the ‘urgent’ and ‘unmet’ need for research, and the ‘dearth of detailed data’ on staffing levels in particular. They make clear that the problem is endemic, with ‘no agreed approach to quantifying the accessibility of the rail network’ and in many areas ‘a lack of quantified data on specific aspects of network accessibility.’ The state of transparency around accessibility research remains a matter of serious concern to us, with the DfT still refusing to publish the ‘wholly inadequate’ Steer report on modes of train operation following our request for an internal review of their FOI decision.

The above statistics are taken from pages 2 to 3 of DPTAC’s submission to the Williams Review and are drawn almost entirely from the 2015 report ‘On Track for 2020’. This report is considered by DPTAC to be a ‘unique’ overview – and the most up-to-date source of quantified data on rail accessibility. And yet, this report was withheld until June 2017 by the Rail Delivery Group, when we published a copy and forced its official release.

Another important point to make is that the ORR will have gone forward with the publication of their new Accessible Travel Policy (ATP) based in part on the very same Steer research on ‘modes of train operation’ that DPTAC has stated is ‘wholly inadequate’ and should only be approached with ‘extreme caution’. Earlier this week, campaigner Doug Paulley succeeded in getting the ATP sent back to the ORR for a ‘rethink’ after threatening a judicial review over the accessibility of rail replacement buses – so is there scope to go further in other areas of the guidance too? We think it’s time to question whether the ORR is using the full extent of its regulatory powers – especially in regard to the changing landscape of railway staffing.

Other essential DPTAC documents:

  • DPTAC’s reponse to the DfT’s PAYG consultation goes into further detail about the need for a new staffing model at a time of technological change (April 2019): download here.
  • DPTAC’s initial submission to the Williams Rail Review goes into detail about the ‘urgent’ and ‘unmet’ need for research (January 2019): download here.
  • Read the full story of the Steer report controversy here.
  • Read DPTAC’s letter to Ministers about driver only operation and destaffing here.
  • Read DPTAC’s email chain containing urgent questions to Ministers concerning driver only operation and the Equality Act here.

Write to us at contact@abcommuters.com

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Three consumer rights issues every rail passenger needs to know about

Last week, we learned that the Rail Delivery Group failed to communicate changes to penalty fares legislation to train operating companies, leading to the overcharging of up to 10,000 passengers. The overcharging follows a similar scandal revealed in 2018, when the Rail Delivery Group failed to update changes to the Consumer Rights Act regarding ‘consequential losses’. On that occasion it took an intervention from Which? for the Rail Delivery Group to incorporate consumer rights legislation that had changed eighteen months earlier.

The Rail Delivery Group (Association of Train Operating Companies Ltd.) is now presiding over a major fares and ticketing restructure, and is by far the loudest voice in the Williams Rail review. So, it is up to passengers to get ahead of the game and call for real change, which can only start by addressing the train operating companies’ financial incentives. It is long past time to demand a structure that guarantees honesty and ethics in the railway’s approach to consumer rights – and impossible to see how progress can happen when the current structure incentivises precisely the opposite behaviour.

With this in mind, here are the top three consumer rights issues we think every rail passenger needs to know about:

1. Delay Repay: the rail industry’s ‘perverse incentives’

The good news is that the Office of Rail and Road (ORR) is now advocating for a new compensation ‘code of conduct’; to become a train company licensing condition within the next twelve months. Among the ORR’s recommendations in their July submission to the Williams Rail Review is that Williams should consider the issue of ‘perverse incentives’ – a reference to train operating companies retaining the ‘revenue risk’ from claims, meaning they are able to profit from unpaid compensation. Though not mentioned in the ORR’s submission, there is also the matter of Schedule 8 compensation payments made to train operating companies by Network Rail for problems with infrastructure (totalling £328 million last year). According to a recent Telegraph investigation, only 20p in the pound is being passed on to passengers  – and where the rest of Network Rail compensation goes is strongly disputed.

Unfortunately, the issue of perverse incentives features only as a ‘long-term’ aspiration in the ORR submission. This is too slow a timescale to address the incentive structure that is quite logically the root cause of the problem. Despite several interventions by the consumer rights charity Which? compensation payout rates have not significantly improved since 2016, and only about a third of passengers are currently claiming the delay repay they’re entitled to. The payout on small value claims is even worse, with only 18% of passengers claiming under Delay Repay 15 schemes, and only 25% claiming when the value of their ticket is less than £5.

All available research shows a huge ‘compensation gap’ when it comes to delay repay. But it’s the cause of this – the ‘technology gap’ – that is even more shocking. A Which? investigation earlier this year showed that train operating companies demand between 10 and 24 pieces of information for claims. And Department for Transport research shows that over 1 in 4 passengers cite the time and complexity as their reason for not claiming. The cause is obvious: train operating companies have been disincentivised over many years to make claiming easier, which could easily be done through the innovative use of technology.

2. Third Party Apps: how the rail industry is standing in the way of twenty-first century technology

Most passengers are unaware that train operating companies can refuse delay repay requests submitted through third party apps – an area which remains entirely unregulated. This issue first came to our attention in April 2018 when we were contacted by a wave of Govia Thameslink Railway passengers who’d been asked to repay 30 – 100% of their compensation, simply because they had been using a third party app to expedite their claims. While there was no public response from GTR or any rail agency at the time, we noticed that a few months later, the Office of Rail and Road quietly began a market review into the use of third party apps.

The results of this review were due in Spring 2019, but have not – even now – been publicly announced by the ORR. After months of waiting, we have now discovered that there is a copy of the report in Annex A of their submission to the Williams Review. The report confirms our story about delay repay, and shows that there are currently at least six train operating companies who refuse to deal with third party compensation claims (page 4):

TPI panel snip.PNG

To the ORR’s credit, they have said in their submission to the Williams Review that they intend to consult immediately on a ‘Third Party Intermediary’ (TPI) code of conduct, which would open up the market for third party apps and online retailers to process compensation claims. However, we believe more urgent action is required. For example, why shouldn’t the ORR and Transport Focus demand that the Rail Delivery Group makes a clear statement committing to the immediate acceptance of third party claims? The tech market would respond promptly and this would provide train operating companies with a much-needed incentive to improve their own technology if they wish to remain competitive. Anything less is to allow a market monopoly to continue to stand in the way of innovation – a technology gap which has already become a national embarrassment.

3. Class Action Lawsuits: will the floodgates open for new consumer rights precedents?

In February this year, a £100 million class action was launched at the Competition Appeal Tribunal on the issue of ‘boundary fares’; alleging that train companies have been making passengers with travelcards pay double when crossing a TfL boundary. The overcharging around ‘boundary fares’ has been an issue of concern to commuters for years. ABC campaigner Martin Abrams brought this to the Rail Delivery Group’s attention as early as 2015, but still nothing has been done to correct the practice; demonstrating the slow rate of change and weakness of regulation in this area.

We have long been arguing that the floodgates will open concerning new consumer rights precedents in rail; and we can expect to see further legal challenges of this kind while the industry’s reactive approach to consumer rights continues. Recent examples of ‘passenger power’ include the successful attempt of one of our members to claim back the value of his season ticket through his Amex credit card, Seth Pochin’s successful small claim against Greater Anglia, and this in-depth guide to small claims against train companies by Simon Tilley. The only remaining question is whether change will come through the government and rail regulator, or whether legal actions from passengers will lead the way.

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Write to us at contact@abcommuters if you’d like to share your thoughts.

[This article was edited at 12:30pm on 28th August 2019, to reflect the fact that where schedule 8 Network Rail compensation goes is still strongly disputed.]

 

 

 

 

 

 

 

 

 

Exposed AGAIN! Disabled Access cover up at the Department for Transport

It’s been exactly one year since we published documents from the Disabled Person’s Transport Advisory Committee (DPTAC), revealing years of cover ups inside the Department for Transport concerning driver only operation (DOO). A month ago, we repeated our FOI request and can reveal that the situation around DOO and disabled access is now at breaking point.

The latest documents show that since April this year, DPTAC has been in open rebellion against the DfT due to a ‘wholly inadequate’ piece of research: ‘Effects of modes of train operation on passengers with disabilities’ by the consultants Steer. The very existence of this report has so far been concealed from the Transport Select Committee and the Equality and Human Rights Commission, as well as the disability charities involved in the DfT’s ‘Inclusive Transport’ campaign.

The Steer Report – ‘Effects of modes of train operation on passengers with disabilities.’

In an outspoken letter sent to ministers on 2nd May this year, DPTAC states: ‘our headline advice is that the results of this work should be used with extreme caution […] our advice is that the research and Guidance Note fall very considerably short of articulating measures that mitigate the potentially very negative consequences of driver-only operation, when combined with unstaffed stations; a toxic combination for many disabled people that excludes them from using the rail network.’

In the letter, DPTAC challenges the legality of the DfT and train operating companies’ plans for DOO, questioning whether the running of unstaffed trains through unstaffed stations is consistent with the Department’s duties under the Equality Act 2010. The full letter to ministers can be viewed here:

After Andrew Jones’ appearance at the Transport Select Committee on 8th May, DPTAC scheduled an urgent meeting with ministers and sent ahead a list of demanding questions, also concerning the legality of plans for DOO:

The emails show that the meeting took place on 18th June 2019, but we have no further knowledge of DPTAC’s discussion with the rail ministers, and the Steer report itself remains held back under FOI (a decision we intend to challenge).

The DPTAC documents prove us right in our ongoing pursuit of a report by the consultants Steer (formerly Steer Davies Gleave). We had previously understood a 2013 Steer report to be the foundation of the entire DOO project, meaning that this new discovery of a piece of 2018 research is part of a six year history that has so far evaded all Parliamentary scrutiny. The following key documents demonstrate that the 2018 Steer report ‘Effects of modes of train operation on passengers with disabilities’ is yet a further stage in a process of policy development that’s been going on for years within the closed circle of the DfT, Rail Delivery Group and train operating companies.

Key documents: DPTAC’s Letter to Ministers dated 9th April, sent 2nd May  *  June 2019 emails – DPTAC arrange meeting with Transport Ministers and send urgent questions in advance  *  DPTAC’s second submission to the Williams Review – Working towards a fully accessible railway, 8th May  *  DPTAC’s response to the PAYG consultation, submitted 30th April 2019

Key correspondence: Email chain Dec 2018 to May 2019 – covering delays to Steer report, and delays to DPTAC’s letter to ministers  *  May 2019 – DPTAC discusses dispatch of letter to ministers and second submission to Williams review  *  June 2019 emails – DfT and DPTAC discuss confidentiality re the Steer report

The Steer Report on DOO – Timeline of Events

This blog continues with a timeline of the 2018 Steer report and a full download list of the documents in chronological order. We then provide a fuller background of the history of Steer’s research on DOO, and explain our concerns about the influence of train operating companies on the formation of policy. We conclude with an urgent list of requests to the Transport Select Committee.

Steer Timeline JPEG

The Steer Report on DOO – Timeline of Documents:

July – September 2018: The following documents show DPTAC meeting with Steer on 30th July, shortly after our 2018 exposé. In September, they are given the ‘final’ draft of the Steer report and provide their feedback.

July 2018 – DPTAC emails show a meeting took place with Steer on 30th July   *  DPTAC emails August 2018 – reaction to the ABC expose   *  DPTAC Main Meeting minutes – 20th Sep 2018   *  September 2018 – DPTAC receives a copy of the Steer report on DOO and responds to first version  *  DPTAC’s response to version 1 of the Steer report – 24th September 2018  *  Peter Wilkinson’s letter to DPTAC – 5th October 2018

September 2018 – March 2019: From September, DPTAC provides feedback on at least one further ‘iteration’ of the Steer report (called version 2 in the timeline above). There is then a long delay while the next version of the document is prepared by Steer and the Rail Delivery Group, with involvement from train operating companies.

DfT and DPTAC Rail Sub-Group Meeting minutes – 12th Oct 2018  *  DfT and DPTAC Main Meeting minutes – 7th Dec 2018  *  DfT and DPTAC Rail Sub-Group Meeting minutes – 12th Feb 2019  *  DPTAC response to the ORR consultation on Improving Assisted Travel – 18th Jan 2019  *  DPTAC’s initial response to the Williams Rail Review – 18th Jan 2019

March – May 2019: DPTAC receives the ‘final’ copy of the report on 6th March and responds by writing a strongly worded letter to ministers on 9th April. The letter is delayed by civil servants until 2nd May, when the Chair of DPTAC sends it directly to Andrew Jones ahead of his Transport Select Committee appearance. In the meantime, DPTAC responds to the DfT’s PAYG consultation, placing a strong emphasis on the need for an adequate staffing model amid the extension of smartcard technologies.

Email chain Dec 2018 to May 2019 – covering delays to Steer report, and delays to DPTAC’s letter to ministers  *  DPTAC’s Letter to Ministers dated 9th April, sent 2nd May  *  April 2019 emails – DPTAC submit their response to the PAYG consultation  *  DPTAC’s response to the PAYG consultation, submitted 30th April 2019

May – June 2019: On 8th May, the day of Andrew Jones’ Transport Select Committee appearance, DPTAC submits a powerful second submission to the Williams Rail Review. Emails over the following month show DPTAC scheduling a meeting with ministers for 18th June, and sending ahead a list of demanding questions concerning the legality of driver only operation.

May 2019 – DPTAC discusses dispatch of letter to ministers and second submission to Williams review  *  DPTAC’s second submission to the Williams Review – Working towards a fully accessible railway, 8th May  *  June 2019 emails – DPTAC arrange meeting with Transport Ministers and send urgent questions in advance  *  June 2019 emails – DfT and DPTAC discuss confidentiality re the Steer report

Background – the 2013 Steer Report

Since August 2017, we have been pursuing a 2013 Steer report known as “Driver only operation – passenger”, which we believe forms the basis of the entire DOO project. We first drew attention to the existence of this report with our publication of a 2014 email from Michael Woods of the Rail Safey and Standards Board (RSSB). However, the Steer report has been held back by the Rail Delivery Group (RDG), who are not subject to freedom of information legislation. After we broke the story two years ago, the RDG refused to release the report under FOI, giving the following comment to press:

“In 2011, an independent report into making the railway more efficient recommended that driver only operated trains should be the default option across the network. Following this, a more detailed report was commissioned to investigate the financial implications of different ways of enacting this recommendation. As a public service which spends taxpayers’ money to better connect the country, it is only right that we look at ways to make our services more efficient but it is entirely normal that such analysis remains confidential. Where it is being introduced, careful consideration is being given to ensure that a second member of staff, not necessarily a guard, is available wherever appropriate to assist passengers.”

After three years of industrial action and with a looming legal threat against the government from the Equality and Human Rights Commission, there is little need to emphasise the public interest value of the 2013 Steer report. After FOI requests to the DfT, DPTAC, RSSB and the ORR we have discovered that the document is held only by the Rail Delivery Group. This means that the Association of Train Operating Companies has complete control and ownership over a document that we know has been foundational to policy. The fact that this document has been held back by the Rail Delivery Group for six years also provides the rail industry’s most urgent example of the need for FOI legislation to be extended to private contractors.

To date – the 2018 Steer Report

Our FOI request to DPTAC has revealed the existence of a 2018 Steer report on DOO, ‘Effects of modes of operation on passengers with disabilities’. Although we have been able to publish DPTAC’s damning verdict on its contents, the report itself has been withheld under section 22 (1) of the FOI Act – namely that the report is already ‘planned for publication’ by the Department for Transport.

However, it’s clear in the correspondence that ministers are deciding whether to publish, not when. An email from May 30th, where a DFT civil servant chastises a member of DPTAC for referring to the report at an ORR event, states that: ‘Ministers haven’t yet decided whether to share’ and ‘while some of the TOCs at the meeting today might have been aware when you raised it, the disability groups and EHRC definitely wouldn’t be.’

june confidentiality dft.PNGThe DPTAC email correspondence shows the 2018 Steer Report passing through at least three ‘iterations’, a process managed by the Rail Delivery Group in collaboration with consultants Steer – and in which they have sought feedback from train operating companies ‘to ensure recommendations are feasible’. The following excerpts from February 2018 further demonstrate this unhealthy dynamic:

steer report email feb update.PNG

From DPTAC meeting minutes – 12th Feb 2019:

Steer report feb update.PNG

Our requests to the Transport Select Committee:

(1) At his 8th May update to the Transport Select Committee, the Rail Minister Andrew Jones maintained that driver only operation is ‘not policy’. This is no more than an issue of semantics, relating to a behind-the-scenes legal wrangle over who holds the Public Sector Equality Duty in franchise contracts. The documents we’ve published today show that this legal discussion is already going on behind the scenes at the DfT, who are undoubtedly preparing for a legal challenge from the Equality and Human Rights Commission. We call on the Transport Select Committee to seek sight of any legal advice provided to the Department, which could potentially influence changes to legislation following the Williams Review and is therefore in urgent need of oversight.

In particular, please note:

Points 2.6 and 2.7 of the DfT and DPTAC Rail Sub-Group Meeting minutes – 12th Oct 2018:

PSED.PNG

The following paragraph from a DfT civil servant sent to a member of DPTAC on 30th December 2018. You can view the full correspondence here: Email chain Dec 2018 to May 2019 – covering delays to Steer report, and delays to DPTAC’s letter to ministers

dft email to dptac 30 dec 2018

(2) We call on the Transport Select Committee to demand all ‘iterations’ of the Steer report(s) on driver only operation since 2013, and to question the Rail Delivery Group thoroughly on the report’s six year history. We will continue to request the 2018 Steer Report under FOI, but our primary concern is that documents are being withheld from the Transport Select Committee, meaning there can be no proper scrutiny of Departmental policy.

(3) We call on the Transport Select Committee to undertake an investigation into transparency and research standards at the DfT. Railway policy has been developed behind closed doors for up to a decade, and it is outrageous that this ‘research’ process appears to have been dominated by the Rail Delivery Group, the majority of whose members are train operating companies. The economic cost of conducting research in this way (without any parliamentary oversight or passenger/staff consultation) has been enormous, and yet the TSC hasn’t even been allowed to view the business case for DOO (which we also believe to be contained within the 2013 Steer report).

If you combine the economic impact of the industrial dispute, potential legal action from the EHRC, and the probable inadequacy and quick obsolescence of DOO technology; it is clear that – far from being an abstract concern – standards of research and transparency are a matter requiring urgent Parliamentary oversight.

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