PSVAR likely to be required in rail replacement

Legal advice obtained by the Office of Rail and Road (ORR) indicates that virtually all rail replacement coach and bus services come within scope of PSVAR.

The opinion is from Zoe Leventhal, Barrister at Matrix Chambers. It was sourced as part of ORR’s consultation into parts of its Accessible Travel Policy guidance for train operating companies (TOCs).

PSVAR applies to PSVs with more than 22 passenger seats that are used on scheduled or local services where separate fares are charged.

The derogation for some older coaches will be withdrawn from 1 January 2020. Until then, those that were first used on or after 1 January 2005 are subject to PSVAR when on in-scope duties. Those first used on or after 1 January 2001 are subject to PSVAR on the same basis, but they do not require access for wheelchair users.

Ms Leventhal says that payment by passengers to a TOC satisfies the separate fares stipulation. That is even though passengers may have bought tickets with the intention of travelling by rail.

“The possibility of an alternative service being provided by road… is envisaged expressly in the National Rail Conditions of Travel.

“It is a service that is encompassed within the fare paid. It does not matter that the passenger does not pay the coach or bus company for the road service. A rail replacement service is one for carriage of passengers by road at separate fares.”

A service could be considered not to be local if all stops are more than 15 miles apart. However, Ms Leventhal continues by saying that it is unlikely that much, if any, rail replacement work does not qualify as a scheduled service.

“The issue… is whether a service is provided along a specific route at specific times and stopping at predetermined points. It seems… that very many rail replacement services will satisfy these criteria.”

She adds that the only rail replacement services to fall outside PSVAR are those that are neither local nor scheduled. However, they are few and far between. That is because of TOCs’ passenger information obligations and industry-accepted good practice. PSVAR makes no distinction between planned and unplanned work.