One week to go until a full response from the Department for Transport

After two and a half months of highly unsatisfactory correspondence with the Department for Transport, we are now awaiting the final deadline for a response to our Letter Before Action; due Monday 21st November.

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On 28th October, we dispatched our Letter Before Action (a 30-page document detailing our legal grounds) to the Secretary of State for Transport, Chris Grayling.

The Department informs us that they have now consulted counsel and are preparing a ‘reasoned and helpful’ response.

We expect their full response on 21st November, a seven-day extension on our original LBA deadline of 14th (a reasonable delay considering the weight of the document we sent them.)

We are also awaiting the result of FOI requests seeking the full disclosure of Govia’s franchise agreement and remedial plan – documents that could hold the key to ending the Southern Rail crisis. Our final deadline for these FOI requests is 17th November, so stay tuned for further updates over the next week. Whatever happens, this is definitely the point where things start to become more interesting!

Many thanks for all your fantastic support and patience, and we look forward to sharing more soon…

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.

New Campaign: Open Letter on Health & Safety to Southern Rail, DfT and Select Comittee for Transport

With an increasing number of health and safety risks being reported by commuters, we have now launched an Open Letter to the CEO of Southern Rail, marked for the attention of the Department for Transport and Transport Select Committee.

We ask all commuters who have experienced or witnessed a health and safety incident on the network to add their comment to our Open Letter here. Please keep comments as brief and clear as possible, with a maximum length of 80 words.

As the evidence accumulates, we will be addressing CEO of Southern Rail and the Department for Transport directly. We have also spoken to the Parliamentary Select Committee for Transport of our fears over escalating violence on the network, and they have kindly agreed to accept our evidence as an official submission as part of their ongoing Rail Safety Inquiry, details here.

Our aim with this new campaign is to provide a vehicle for a large amount of witness statements to be brought to the attention of the above authorities. In the case of longer submissions, especially those of a more serious nature, please comment in brief on our Open Letter and follow up with a longer submission to the Select Committee; and if necessary, a police report.

We have also raised our concerns with the British Transport Police today, who have provided a statement here. They are keen that rail users are reminded of their text message service, which provides a discreet method of contact in case you feel threatened while trapped in the crowd – the number is 61016 (this is not a substitute for dialling 999, which should be used in the case of an emergency).

The Select Committee for Transport have also emphasised that they are keen to hear suggestions on how the safety of passengers can be improved in the short term. If you have any ideas on how Southern Rail staff and the British Transport Police can better serve commuters, please comment below this post.

 

 

Health & Safety risks worsen as commuters fear violence & assault on Southern Rail

Since instructing our lawyers to write to the Department for Transport last week regarding the escalating health and safety concerns on Southern Rail, we have become increasingly concerned over the risks of violence on the network.

The health and safety risks on the network now form our most immediate concern; and we fear that the very real impact of the crisis in terms of crowd psychology has been ignored by Southern Rail management, and suffers a lack of oversight from the Department for Transport.

The stress of severe overcrowding, competition for trains, and a breakdown of trust in the management create a volatile crowd situation that seems to be leading to an increasing number of violent incidents on the network. For an insight into the mass psychology of the situation, please see Dr. John Drury’s comments published last week: http://drury-sussex-the-crowd.blogspot.co.uk/2016/10/southern-rail-and-psychology-of-crowd.html

Please be aware that officers from the British Transport Police are available throughout the network to respond to incidents of this nature. If you feel threatened or endangered in any way, you can contact them by texting 61016; which is a discreet way to get in touch if you are stuck in a violent situation on a packed train. You can also call the BTP on 0800 405040 (in an emergency, always dial 999).

We have just been in touch with the British Transport Police on this issue, and they gave us the following statement in reponse to our concerns:

“We are in constant discussion with Southern Rail and continue to monitor the situation so that we can deploy officers where needed. Where any disruption occurs, we have officers available to support rail staff and passengers.

In general, we know that incidents of violence on the railway tend to occur more often when there is disruption or overcrowding, particularly at peak times. The types of violent incidents reported to us tend to be common assaults resulting in no injury to the victim.

The main drive behind the incidents appears to be frustration and a lack of patience among commuters leading to low level physical and verbal assaults. We can all make a difference by being kind and considerate to our fellow passengers.”

The ABC team is busy working on further health and safety campaigns related to these issues, and will be publishing updates with further avenues for action soon.

 

 

 

Fears for Health & Safety on Southern Rail – our lawyers write to the DfT

We have been inundated with reports of health and safety risks related to overcrowding on the Southern Rail network; problems that we have witnessed for many months, and have reached their peak during the strike action.

Our lawyers have now written to the DfT seeking clarity on whether they have conducted any risk analysis in advance of the RMT strikes, and at what point the DfT will consider these risks to be seen to be sufficiently serious to warrant termination of the franchise. We seek to know what instructions (if any) the DfT have given GTR in minimising the effect on rail users during this time, and whether GTR’s implementation of these instructions is being properly monitored.

The witness reports of which we have informed the DfT include: incidents of violence at Brighton station, dangerous overcrowding and mass panic in crowds, mass rushes along overcrowded platforms to board trains in the case of last-minute announcements, a child left abandoned on a platform due to overcrowding, and illness and incapacity brought on in the vulnerable, pregnant, elderly and disabled.

Statement from the Association of British Commuters

“The Select Committee for Transport confirmed last week what ABC has been arguing for months – that the Department for Transport have failed to monitor and enforce the GTR franchise agreement, and are evading their responsibility to provide proper transparency.

In the meantime, with no confidence in GTR’s management of the network, or the DfT’s oversight; we feel that the extra overcrowding during the strikes represents an unacceptable health and safety risk to the public and fear that it is not a matter of ‘if’ but ‘when’ we will see a tragedy on the network.”

The Transport Select Committee’s report – released 14th October.

We highly recommend reading the full report, which backs up the arguments that the Association of British Commuters have been making for months. In regard to the Department for Transport’s responsibility to step in to resolve the ongoing failure of GTR and the industrial dispute with the RMT, please note the following; and be reminded that the GTR contract is not a typical franchise agreement, but a management contract.

Extract from paragraph 52:

Whilst the dispute can ultimately only be resolved through negotiation between GTR and the RMT, given the Department’s unusually direct involvement in the TSGN franchise it should take a greater degree of responsibility for fostering productive negotiations. We therefore urge the new Rail Minister and Secretary of State to engage more actively and substantively with the rail unions’ safety and workforce-related concerns in relation to the expansion of DOO on the TSGN franchise, as a matter of urgency.

Extract from paragraph 56:

We are concerned that no official impact assessment has been made of the potential effects of DOO on disabled people’s access to the railway. We recommend the DfT and the Association of Train Operating Companies (ATOC) jointly commission research into the potential effects of DOO on the “turn up and go” accessibility of the railway to disabled people who require assistance getting on and off trains. The Department should draw on this research to issue guidance to train operating companies on the measures that should be taken to mitigate potential detrimental effects on disabled people’s access. It should ensure that actions are taken to guarantee that disabled rail passengers receive the support to which they are entitled.

Extract from paragraph 82:

If GTR is in default, it is incumbent on the Department to take the franchise back in house and then to find one or more operators that can improve the situation. It is simply not credible for the DfT to continue to claim that “no other operator” could improve the situation; if it is the case, it is a consequence of the structuring of the franchise, for which the Department is ultimately accountable.

For the full report, click here.