Legal Update: Transport for All to intervene in ABC’s judicial review

Work continues towards our judicial review and we are delighted to announce that the disabled and older people’s charity Transport for All has now asked to intervene in the case. Transport for All have written today to the Royal Court of Justice, to express their interest in submitting further witness statements expressing the full range of assistance failures disabled people have had to deal with during the tenure of Southern Rail.

Like ABC, Transport for All has received dozens of complaints from people experiencing regular failures of assistance on Southern Rail. They are now being represented by Chris Fry of Fry Law on the matter – the very same team behind Doug Paulley’s recent victory for bus accessibility at the Supreme Court.

It is the first time that the Secretary of State’s obligations, as relates to the Equality Act and rail franchising, will come in front of the Court; meaning that the case is very likely to be precedent-setting for rail transport. ABC could not be happier to hear that such a well-respected organisation and law firm will now be joining the case.

With in-depth legal work continuing on the Equality of Access issue, we have also made some minor amendments to the case this month. Such amendments are not unusual in the judicial review process, which is rather less combative than regular litigation. This means that our new deadline for a response from the DfT is now 23rd March. Given this delay, we do not believe the Court will find any further extension requests from the DfT to be reasonable. We feel confident, therefore, that we will have their response by 23rd March, and it will then be a matter of awaiting the Court’s decision on whether the judicial review can proceed.

Statement from Transport for All

Accessible public transport is a life-line to inclusion for many disabled people who disproportionately rely on it to go about their everyday lives. The Southern Rail crisis has caused disruption and misery to disabled and older people, leaving many unable to travel to work and increasingly isolated. Yet throughout the strikes the Department for Transport has remained silent on this issue.

This case would be the first test case to the Secretary of State’s duty to uphold Disability Equality in the franchising process, and could cause a seismic shift in the Department for Transport’s approach to protecting the rights of disabled and older people.

Transport for All hope that our experience in the wide range of obstacles disabled and older people can face when accessing the transport network, and the impact of Southern Rail’s failures on our ability to travel will assist the court when they consider the case.

Transport for All’s accessible transport hotline receives dozens of calls from disabled and older people who find themselves unable to access the rail network because they simply can’t rely on assistance from staff.

“On roughly two-thirds of my journeys, when I arrive at Victoria there is no one there to assist me with a ramp, even though the staff at my home station have phoned ahead to let Southern Rail staff at Victoria know. So I end up stuck on the train” commented Chris Stapleton, a wheelchair user. “The effect of Southern’s unreliable assistance is that every train journey becomes horribly stressful, and every time I arrive at my destination I have a tight knot of anxiety in my stomach – will there be someone with a ramp to assist me? Will I be locked into the train again, or have to get random strangers to go and hunt for staff, or be forced to shout or press the emergency alarm?”

For more information or comment please contact catherine@transportforall.org.uk

Have you been affected by accessibility issues on Southern Rail?

If so, please do get in touch with Transport for All, or email Catherine directly on catherine@transportforall.org.uk.

You can also report your experience to ABC via contact@associationofbritishcommuters.com. We will then let you know when we will be taking further witness statements.

Donations to our legal campaign

Our next round of crowdfunding for the case will open after we receive permission from the Court. In the meantime, we are running a big campaign on very slim resources. If you are in a position to donate to ABC, you can do so here.

BREAKING NEWS: ABC applies to Court for judicial review of the Department for Transport over Southern Rail

We are delighted to announce that we have applied to Court this morning for a judicial review of the Department for Transport’s handling of the Southern Rail management contract. The application to Court is the outcome of our Crowd Justice fundraiser, which raised over £26,000 in September 2016. We have been working intensively on the case for five months already; a process slowed considerably by the lack of transparency shown by the Department for Transport in response to our FOI requests.

Today’s news will be extremely welcome to all our donors, supporters and volunteers; without whose support none of this would have been possible. It is right that our fellow passengers will now play a part in bringing the government to account for the damage Southern Rail has caused to so many thousands of lives.

Legal update

Detailed Grounds have been lodged at Court this morning that address the Department for Transport’s ongoing failure to hold Govia Thameslink Railway (GTR) to account for the long-term breakdown of service on Southern Rail, in regard to two distinct areas:

(1) Delay – we believe the Secretary of State has acted unlawfully by failing to determine and announce within a reasonable time whether GTR is in breach of its franchise obligations; and

(2) Discrimination – we believe that the Secretary of State has failed to comply with his duties under the Equality Act 2010 and has as a result caused indirect discrimination to passengers with disabilities.

These unlawful acts are ongoing. ABC is seeking declaratory relief – i.e. a Court finding that the Secretary of State has acted or is acting unlawfully.

Today’s application to Court is the outcome of five months of hard work; a process slowed considerably by the DfT’s resistance to providing transparency on its contractual relationship with GTR; repeatedly delaying FOI requests, which have only just been completed. Both the Southern Rail management contract and remedial plan remain publicly available only in redacted form and, without transparency, there is no way to clarify the true causes of this unprecedented rail crisis. There has long ceased to be any justification for the Secretary of State’s ‘hands off’ approach to a company that is his Department’s direct contractor.

The application has been lodged and is due to be issued imminently. It will then be served on the Secretary of State who will have the opportunity to respond by filing Summary Grounds of Resistance within a further 21 days. The Court will then consider, usually without a hearing in the first instance, whether to grant leave (permission to proceed to court). If leave is granted, ABC will launch a second crowdfunding campaign to raise sufficient funds to take the case through to its conclusion.

Comment from the Association of British Commuters:

“We are delighted to announce that we have now applied to Court for a judicial review of the Department for Transport’s handling of the Southern Rail management contract.

We are extremely grateful for the work undertaken by our legal team; namely barrister Jamas Hodivala of 2 Bedford Row and solicitor Matthew Garbutt and his team at Devonshires Solicitors LLP. All involved have gone above and beyond the call of duty in helping us seek justice on the Southern Rail crisis.

Our Detailed Grounds, lodged at Court today, are the result of five months’ hard work and the extensive research of dozens of volunteers who have supported the campaign by contributing their time and professional skills. Our donors, supporters and volunteers are the people who have been hit the hardest by the Southern Rail crisis, and they deserve to play a part in finally bringing the government to account.

We began this process back in September, at a time when we felt we’d already reached our last resort. That it has got so much worse, and the DfT have still not acted, now beggars belief. Commuters have long since passed the point of exhaustion, and it is a matter of shame for the DfT that we have had to go to such great lengths to demand action be taken.

We continue to urge the DfT to act decisively and transparently on the future of Southern Rail. The longer they stand back from this unprecedented rail crisis, the harder it will be to put the pieces back together again.”

Lianna Etkind, Public Transport Campaigner at Campaign for Better Transport:

“Today is a step forward for passenger power. It is absolutely right that the Government is held to account for the failings of the Southern franchise, which has made peoples’ lives a misery. Long before any industrial dispute, Southern passengers had to rely on a train service plagued by delays and disruptions, under a management contract with no financial penalties for poor performance.

Fundamentally, the running of a train service is down to the contract between Government and train operator, so the Government’s role in setting and enforcing the standards in the contract with Govia must be properly scrutinised. For far too long, passengers’ voices have been ignored in the tussle between Southern Rail and the unions. We need to ensure that in the future, passenger representation is written into this franchise, and indeed into all rail franchises, so that those who have to use the trains day in, day out, have their voices heard.”

Faryal Velmi – Director, Transport for All:  

“It is totally unacceptable that Southern Rail have been allowed to treat disabled passengers as second class citizens. Transport for All has heard time and again from disabled transport users who feel Southern Rail’s network is now a no-go zone; impacting on people’s ability to work and often leaving them increasingly isolated. The Department for Transport and rail industry must act urgently to prevent the basic rights of disabled passengers being flouted in this way.”

For a detailed explanation of our grounds, please view this document:

abc-grounds-for-judicial-review-explained

ABC continues to work intensively on the JR case, and several other campaigns for proper compensation and consumer justice. To donate to our campaign, click here.

ABC legal campaign – final preparations now being made for application to Court

ABC is a transport pressure group founded in Brighton in May 2016, in response to intolerably poor service from Southern Rail. We thought we had reached our last resort in September and launched a legal crowdfunder for a judicial review of the DfT’s handling of Southern Rail, its close subcontractor.

Little did we know then how much worse things would get.

Our lawyers spent months in correspondence with the DfT; receiving highly unsatisfactory responses and repeated, time-wasting extensions to our FOI requests. To this day, the details of the government’s contract with Southern Rail remain under lock and key; and there has never been a stronger or more urgent case for transparency than now.

With vast amounts of material to prepare, our lawyers continued to work intensively on the case and we are now on the brink of applying to Court to take the judicial review forward. The details of our final grounds will hit the press by mid-January.

Though we cannot yet share details of our final grounds, the case is sure to take on Chris Grayling’s refusal to act in the public interest, and the details of the unprecedented failure of public policy behind Southern Rail’s ‘management contract’. We are also extremely concerned about the lack of disabled access on Southern Rail, a problem that has run throughout this year of service breakdown and is set to become a lot worse with the chaotic changes to staffing now taking place.

Our campaign took on the failure and mismanagement of Southern Rail before the industrial action even became an issue. With the industrial action on top of the collapsed service we have lived through all year, one marvels at the extent of Chris Grayling’s dereliction of duty as hundreds of thousands of people suffer and the entire economy of the South has been brought to a standstill.

For more information on ABC and our #SouthernFail campaign, click here.

To donate to the campaign or purchase ABC badges, click here.

 

Legal update: the Department for Transport continues to evade its responsibility to the public

With the daily torment of travelling on the Southern Rail network worse than ever, we are also at the brink of a complete shutdown of service with the probable announcement of drivers’ strikes. The Department for Transport is clearly prepared to allow this situation to develop into a catastrophe even worse than what we have already experienced, and shows no signs of concern for the effect on the public.

Our legal update

ABC’s legal team has been pursuing FOI requests for almost 3 months now, and recently dispatched its Letter Before Action to the DfT; announcing Grounds for our application to the Court for Judicial Review. We now have news to report.

Freedom of Information requests

After multiple extensions to the deadlines for our FOI requests we have finally received an answer on most of them (one is still outstanding and now under its third extension; due 1st December). It may not surprise you to learn that these answers continue to demonstrate a complete lack of transparency and concern for the public.

Nearly all of our FOI requests have now been refused, citing extensive justifications of ‘commercial sensitivity’ and highlighting the need to conceal information on staff-related issues that “may be likely to undermine GTR’s position in negotiations with the trade unions”.

Consider this point alongside their reliance on the unproven claim of Force Majeure, which itself relies on the allegation of ‘unofficial strike action’ and now forms the DfT’s main defence for not intervening in the Southern Rail crisis. Many of us believe (in line with David Boyle’s early investigations into the subject) that it was in fact deliberate policies of understaffing that led to the collapse of the network this summer. Amid the horrific breakdown of relations between Southern staff and management, staff declined to work rest days, which was all it took to bring the overstretched network to its knees.

To this day, no evidence has been provided for ‘unofficial strike action’, even while much of the press reports it as fact. The issue now forms the government’s refusal to penalise/terminate Govia, and Transport Secretary Chris Grayling has even stated that he will not conclude this investigation until after the industrial dispute. This in other words, is the smokescreen they are relying on to justify their non-intervention in the so-called ‘franchise’ – behaving as if it is a regular private company instead of their direct subcontractor, working in a close relationship shrouded in secrecy.

Health and Safety monitoring on Southern Rail

As the industrial dispute has worsened, we have also raised our concerns about the lack of health and safety monitoring on the network, and have finally received a response to our questions. We can now confirm that the DfT has made no analysis on the effects on the public from strikes, and no risk analysis pertaining to future strikes. Any such monitoring, they say, would fall under Govia’s remedial plan (which, of course, they refuse to fully disclose). It seems they are unwilling to oversee health and safety on a network that their subcontractor manages for them, despite abundant evidence of life-threatening health and safety risks to the public.

Letter Before Action – their response to our legal grounds

We also received a response to our Letter Before Action this week, which we found highly unsatisfactory. There is a lot of material to analyse and our barristers are currently conducting an in depth review. We look forward to sharing more on this as soon as we are able.

Where do we go from here?

Firstly, do not be disheartened by this news. The DfT are facing a scandal of a generation with the Southern Rail crisis and it is not surprising that they are digging their heels in to avoid the massive embarrassment the truth will cause. We will be pushing this to a Judicial Review and fully expect the Judge to be taking note of their continued evasiveness (the failure to provide transparency is indeed one of our Grounds).

Secondly, since so much of this situation is political, we need to lobby MPs and Ministers harder than ever. The most important target right now is Force Majeure – the smokescreen the DfT use to allow Southern Rail to act with complete impunity. There is no longer any excuse for them to delay in providing a resolution on Force Majeure – the longer they delay, the more it seems that it cannot be proven.

It is also vital that we demand the government urgently steps in to the industrial dispute. Paul Maynard continues to say that he finds the union action ‘inexplicable’ and ‘cannot discern’ why they are striking: statements we consider highly disingenuous. Not only did RMT and ASLEF announce in November 2015 that they would strike on safety grounds, but the RSSB report (on the safety of DOO) itself anticipates it. With or without Peter Wilkinson’s stated intention to “smash the unions”, it is clear that the government want to ride this out and push the industrial dispute to a crisis, with the effect on the public viewed as collateral damage.

The Department for Transport must intervene

Brighton and Hove Albion Football Club and Brighton MP Caroline Lucas have also raised their voices this week, calling for the government to step in to the industrial dispute as a matter of urgency:

Click here for the full letter from Martin Perry, director of BHAFC.

martin-perry-letter

Click here for the full letter from Caroline Lucas MP.

caroline-lucas-comment

More updates soon. In the meantime, let’s stay strong, support each other and think very critically about what we read in the papers….

Latest news: DfT fail to respond to our FOI requests…again

The fact that our legal proceedings have been slow is due to the ongoing refusal of the Department for Transport to act transparently and disclose essential documents – the same refusal the Select Committee report called “completely unacceptable” and deliberately “evasive”. Today, we received yet another example of this behaviour.

For two months, the DfT has diverted our lawyers’ correspondence down the route of FOI requests, already taking a further extension of 20 days; the deadline for which was today. Astonishingly, they wrote today at 17:15 (just minutes before their second deadline) to say they will take yet another extension in order to further consult with Govia and complete ‘public interest considerations’.

At this point, it is fair to say that the DfT have done everything they can to evade their responsibility to the public; denying us our urgent right to clarity on the Southern Rail crisis. This evening, we instructed our lawyers to write back to the DfT with three separate complaint letters, expressing in the strongest possible terms our objection to this unwarranted delay.

The Department for Transport have also failed to send us a copy of their FOI policy, which they are obligated to provide. Their argument so far that they cannot reveal documents due to ‘commercial interests’ should be viewed in light of the following:

Paragraphs 74 – 75 of the Select Committee report:

  1. “Until we recently managed, after several attempts and considerable time and effort, to extract information from the Department, GTR’s contractual performance benchmarks, and data relating to GTR’s performance against them, were entirely opaque. It is completely unacceptable that changes to the contractual benchmarks were not published in an open and transparent way. It is also unacceptable that the data required to scrutinise GTR’s performance against its contractual benchmarks are not made readily available. The Department’s evasive and opaque answers to our questions hindered our inquiry and delayed publication of this Report.
  2. The DfT must take urgent action to increase the transparency of GTR’s performance against its contractual obligations. In the interests of open and transparent scrutiny, we recommend that the Department immediately require GTR to publicly report its performance against each of its contractual performance measures in each Reporting Period since the commencement of the current franchise and on an ongoing basis.”

Letter from Committee Chair to Paul Maynard, 9th September:

“I do not accept that it is necessary, or in the public interest, to keep this information confidential. While the information may be commercially embarrassing, and reflect badly on the Department, I do not see that publishing it would confer a commercial advantage on GTR’s competitors.”

The DfT have not only failed to reveal the full franchise agreement and remedial plan, but have also failed to respond to our urgent letter regarding health and safety concerns during the strikes, sent on 19th October. With all the scenes we’ve witnessed this week on Southern Rail, the dangers are getting worse, not better; and this lack of response is deeply troubling. Our lawyer, Mathew Garbutt, has written again today to urge that they engage with us on this vital matter of health and safety monitoring.

What happens next?

The deadline for a full response to our Letter Before Action is November 14th and the extended deadline for our FOI requests is the 17th – so, we will have more to report from both deadlines in mid-November. This also means that we have two weeks to lobby our MPs as hard as possible to recognise that any solution to the Southern Rail crisis hinges on achieving this transparency.

In refusing to reveal the franchise documents, remedial plan or any evidence of the claim of Force Majeure (the claim being used to justify GTR’s breach of contract); the Department for Transport are preventing any way of moving forward, and neglecting their responsibility to the public. It is exactly this refusal to act that locks us into a deadlocked and increasingly unlivable situation on our railway.

Our message to MPs – how you can help…

Today, we announced our legal grounds for judicial review, which we anticipate will prove beyond doubt the unlawful conduct of the Department for Transport in its failure to monitor and enforce the Southern Rail franchise agreement.

The failure of the DfT to lawfully monitor the Southern Rail franchise has resulted in the collapse of the network, and an ongoing, catastrophic effect on the lives of commuters across the South. It is absolutely staggering that the Secretary of State can allow this situation to continue and this can only mean one of two things: either he is aware of the problems commuters are facing and chooses to do nothing; or, he is not aware and has failed to adequately inform himself of the devastating impact on commuters’ lives. Either way, we believe this behaviour is unlawful and an outright betrayal of the public’s right to transparency, safety and equality of access.

We continue to hear stories on a daily basis from commuters who have lost their jobs or been forced to move out of the area, so extreme are the conditions for rail users. More worrying still are the terrible health and safety risks on the network, of which we have written to the DfT and received no response. The situation could not be more urgent – our rail infrastructure is at the point of collapse and we dread to think how long it will take to put it back together again. The Secretary of State must act now, with full transparency and acknowledging the urgency of the catastrophe that he has allowed to develop.

Most serious of all is the effect the Southern Rail crisis is having on the lives of disabled commuters. The Secretary of State is obliged to comply with the 2010 Equality Act and ensure adequate rail travel for disabled passengers, and he is breaking this obligation. It is totally unacceptable, immoral and unlawful that disabled passengers should have to book their travel as long as 48 hours ahead and, even then, be unsure of assistance.

The Select Committee for Transport is very clear on the point that the DfT has not conducted an adequate impact assessment of the effects on DOO on the disabled. We cannot accept a future where this becomes the norm, with unstaffed DOO trains arriving at unstaffed rural stations and effectively ending reasonable rail travel for these passengers across the South.

We call on the DfT to provide full and complete disclosure of the franchise agreement and remedial plan; and to cease its apparent policy of providing incomplete information to both the ABC and the Transport Select Committee. It is vital that the needs of commuters, especially the elderly and disabled, are put first by the Department for Transport; and that they stop ignoring the impact of the crisis we are living through.

How you can help:

We have announced our legal grounds to all MPs across the South and ask for their urgent help in advocating for transparency from the DfT. Please help us by writing to your MP and asking that they join us in demanding the full and urgent disclosure of Govia’s franchise documents and remedial plan.

 

ABC announce legal grounds for judicial review of the Department for Transport

After two months of hard work, we can finally announce the grounds on which we intend to apply for permission to bring a judicial review of the DfT over their handling of the Southern Rail crisis.

We have now dispatched a Letter Before Action to the Secretary of State for Transport, and are finally able to share the grounds on which we intend to apply for permission to bring a judicial review of the DfT.

The grounds on which we shall seek permission from the Court include:

  1. The unlawful lack of transparency surrounding the Secretary of State’s monitoring and enforcement of Govia’s franchise agreement and remedial plan.
  2. The unlawful failure of the Secretary of State to adequately inform himself of the facts in order to comply with his duty to monitor and enforce the franchise agreement.
  3. The unlawful failure of the Secretary of State to comply with his own Equality Act 2010 duties by failing to monitor and enforce the obligation to provide an adequate train service for disabled passengers.
  4. Assuming that Govia is in breach of its agreement (a fact which is obscured by the DfT’s ongoing lack of transparency) the failure to penalise Govia for its failure to meet performance benchmarks, amounting to unlawful state aid.

Our lawyers have requested a response by 11th November. If the DfT do not address these concerns by way of a full response, we will issue an application for permission to bring a judicial review. If that application is successful, we will be launching a second crowdfunder to take us all the way through the Court proceedings.

Many thanks to all our supporters for your contributions, and your patience. The process was slowed considerably by the lack of transparency from the DfT; but with the recent Select Committee report strongly backing up our arguments, we can now move quickly towards demanding this transparency in Court if necessary.

Background to the case:

The Association of British Commuters’ legal campaign began on 5th September 2016 and our lawyers have been corresponding with the Department for Transport since this time, requesting the release of documents and information that would confirm whether Govia are in breach of the terms of the franchise agreement and remedial plan.

The DfT have refused to release many of these documents, demonstrating the same lack of transparency that the Select Committee for Transport called “completely unacceptable” and deliberately “evasive” in their report of 14th Some of our requests are still being considered.

The Transport Select Committee’s damning report backs up the arguments that ABC has been making for months, and has strengthened our case on all of the above points. (“6th Report – The future of rail: Improving the rail passenger experience”, published on 14th October.)

The legal grounds on which we go forward are the work of Matthew Garbutt, our instructed solicitor at Devonshires LLP; and two of the UK’s leading barristers; Jamas Hodivala and Rhodri Thompson QC.

Please sign up to our newsletter to stay in touch or register your interest in volunteering with the campaign.