Since the end of 2019 there has been an ongoing issue as to the applicability of PSVAR Regulations to home to school transport and, if they apply, as to how in fact they could become complied with given the current provision of school services – particularly by the coach sector in the UK.
A sticking plaster was applied to the issue at the end of 2019 when the Department for Transport (DfT) allowed special authorisations under the Equality Act 2010 to be granted to operators of specific vehicles used for the purpose of home to school transport. Those special authorisation certificates were given on a couple of basis.
Many of those special authorisations come to an end in July 2021 and no provision has been made as to what the position should be from September 2021 when the new school year commences. The whole situation has of course been significantly exacerbated by the problems created by the pandemic and effectively there has been a significant degree of uncertainty within the coaching sector and those commissioning home to school transport and what the future trajectory is going to be. This, amongst other things, significantly inhibits investment decisions on the part of operators. It also inhibits their ability to decide even whether home to school transport is something they want to be part of in the future, bearing in mind they may need to have different vehicles from those they use for their more regular private hire or tour work.
There has been a long-awaited update from the DfT as to the position following the 31 July and that finally came in relation to home to school transport in the form of a letter written by Baroness Vere, Parliamentary Under-Secretary of State, to Trade Body Chief Executives, which sets the DfT’s position.
Reading the letter gives you an immediate impression that the DfT are frustrated by the position, as are their sister department responsible for increased accessibility for disabled persons. She sets out in the letter at the outset that the Government’s position, namely that, they consider the PSVAR regulations to have been of great success in equalising the position for disabled persons as compared with their able bodied colleagues when using public transport. Furthermore, that this is a trajectory which has been prohibited by the failure of the provision of home to school operators (and rail replacement) by the coaching sector which has been done using non-compliant vehicles for most of the last twenty years. She does not actually attribute blame for this but merely identifies the problem but it is clear that the responsibility for the issue rests with the DfT in terms of the prorogation of information, the procurers of home to school services – predominantly local authorities to schools themselves and of course the sector of coaching that actually provide that work. Collectively, none of them had appreciated prior to the problems at the end of 2019 that these regulations applied to those services and had done for most of the last twenty years!
Unfortunately, the blame though does not solve the problem and effectively the letter seeks to set out two things simultaneously.
First it is saying PSVAR is here to stay and although it is to be reviewed by the end of 2023, the likely trajectory of that review is expanding the scope of the provision to perhaps private hire or tour services rather than scrapping the idea in certain areas! This is only an impression from the letter though and one cannot afford to be too reliant on a simple letter from the DfT. Ultimately, some of these changes would require changes in the law and that would involve the DfT having to consult and go through the usual processes that are involved in changing the law. It could well be that this does not in fact happen, or at least, not until the next few years. This is the problem with stating policy in advance of the legislative changes required to actually implement that policy. However, one can read into the letter that there is a clear desire to ensure that home to school transport is provided on PSVAR compliant vehicles as soon as possible. It does not appear as though there is any appetite at all for there to be any sensible provision outside of the scope of the PSVAR rules in the medium term.
To that end the DFT allow operators currently with expiring special authorisations to re-apply for them but only to have effect until the end of the spring term in 2022 i.e. 31 March 2022. By that time, operators are expected to have made provision for the correct vehicles that are required i.e. PSVAR compliant, or at least to have made their best efforts to do so. It will only be possible to obtain a special authorisation after that date. It will require a fresh application, you will need to satisfy the determining body that you have made appropriate efforts to comply and it has been impossible. That will not, we suspect, be an easy hurdle to overcome and it is likely therefore that there will be a lot of pressure on suppliers of adaptations to none PSVAR vehicles and to suppliers of PSVAR from scratch to be in a position to supply a large cohort of those vehicles for home to school from the beginning of the summer term in 2022! Even if specialised authorisations are granted from after March 2022, having satisfied the test that you have done all you reasonably can is really important for operators to note that the requirements may have to be met in part. For example, they made exclude Schedule 1 – wheelchair access – in relation to a particular vehicle but not Schedule 3 – so other mobility improvements to the vehicle are required.
Essentially, therefore operators of home to school services need to review their fleet now and make sure they have a valid special authorisation certificate for the beginning of the September 2021 term using the home to school email address provided hometoschoolexemptions@dft.gov.uk
Separately, they need to be reviewing simultaneously the position with their fleet with regards to the position for the summer term 2022 and make sure they have made every effort to have a PSVAR compliant fleet. They also need to be aware that it may well be that this is a judgment not made by them but indeed made by an official at the DfT in response to an application made after March 2022 and that this official may take a different view to them as to whether they have actually achieved their best endeavours. Between now and March 2022, there will be a consultation on the approach to be adopted in relation to the medium term approach in March 2022. That consultation will likely involve the trade associations and operators must keep an eye out for it and must assist their trade associations in responding to it. It will almost certainly be possible to respond independently to it as well, but clear coherent response to the trade associations is most likely to achieve a fairer outcome for the majority of operators in terms of what the expectations are as far as doing your best endeavours to comply are concerned.
In the longer-term, operators need to be looking at their plans for acquisition of vehicles and thinking carefully about whether it is sensible to buy vehicles which are none PSVAR compliant for the future. Although it is by no means certain what will happen after the view in 2023, you don’t want to have purchased a white elephant of a tour vehicle only to find that you can only use it for a short period time thereafter before it has to become PSVAR compliant for tours and private hire etc. It is likely that any such changes would be phased in and clearly the manufacturers have a stake in this as well as the operators. Again, there will likely be a consultation in relation to that review and again it will be important to liaise with the trade associations or respond directly to that consultation in order for the outcome to be as fair as possible.
One thing that is absolutely clear though, is from the tone of Baroness Vere’s letter is that PSVAR is here to stay in one form or another and is likely to be increased in scope rather than decreased and the current special authorisation approach is being rapidly diminished as we move towards March 2022 and thereafter. If you have any questions in relation to that and the approach to be adopted as we near the various deadlines, please contact james.backhouse@backhouses.co.uk.
A copy of the letter referred to can be found here and we thank the CPT for circulating it to us as part of their update on 6 July 2021.