Summary of consultation responses on EC proposal for PRM Regulation

Introduction

On 18 May 2005 the Department for Transport launched a consultation paper on a Commission proposal for a new Regulation concerning the rights of Persons with Reduced Mobility travelling by air.

Consultation papers were sent directly to all UK registered airlines, industry representative bodies, disability organisations, consumer groups and other interested stakeholders. The documents were also posted on the Department's website. The consultation period closed on Friday 12 August.

The Government received a total of thirty-eight responses. Seven were from individual airlines, a further seven from airline representative bodies, five were received from airport operators and operators' associations, nine from disability organisations and two responses were received from consumer protection groups. The remaining eight responses were received from other parties with an interest in the proposals. A full list of respondents can be found in the attached Annex.

The following summarises the responses received to each question, together with the Government's response.

Questions

Does this proposal appear to you to provide for a suitable package of measures to assist PRMs at Community airports? Is there anything else which you would wish to see included in the eventual Regulation?

Eighteen respondents out of twenty-seven who answered this question agreed that the proposal provided a suitable package of measures to assist PRMs.

A number of improvements were suggested, including the replacement of the term, "passengers with reduced mobility" with "disabled persons and passengers with reduced mobility" and provision for staff to receive appropriate equality and disability awareness training. Some respondents believed that passenger awareness needed to be raised about the potential risks of travelling without adequate insurance for mobility equipment, and that mechanisms needed to be established for dealing with lost or damaged equipment.

Seven of the airline and airline representative bodies responding to this question disagreed with the form of the proposal. Their key concern was that the Regulation could create a monopoly service provider with little incentive to achieve cost efficiencies. Airlines were also concerned that they would lose control over the quality of service provided and that standards would fall. Four industry respondents suggested that the proposal should focus on defining and maintaining appropriate standards rather than determining who should provide the service. One suggested that the proposal should address more directly the issue of liability in the event of service failure.

One respondent stated that under the UK Pet Passport scheme airport operators are able to pass on the costs associated with the scheme directly on to the owner of the dog. It was suggested that in relation to assistance dogs, airport clearance costs should be met as part of the wider PRM service at the airport. The same respondent also argued that there should not be a limit on the duration of flights upon which assistance dogs could travel.

Government Response:

A number of the suggestions put forward in the responses to this question have been incorporated into a revised version of the proposal, prepared for consideration by Ministers at the forthcoming Transport Council. Key amongst these is the probable replacement of "passengers with reduced mobility" with "disabled persons and passengers with reduced mobility". In addition, a new Article has been drafted requiring air carriers and airport managing bodies to provide disability equality and awareness training to all personnel working at the airport who deal directly with the travelling public. Personnel providing direct assistance to disabled persons and PRMs would also be required to have knowledge of how to meet the needs of people with different disabilities or mobility impairments.

The Pet Passport scheme is unique to the UK and the Government considers that any proposal that would seek to change or amend its operation should be addressed at the national level by DEFRA rather than in the current Commission proposal.

The more detailed responses to this question are dealt with under the relevant sub-headings below.

Is the definition of Passengers with Reduced Mobility acceptable (Article 2)?

Of the twenty-seven respondents to this question, thirteen were broadly content with the definition of PRMs as currently drafted, while fourteen felt that it was either too wide or too restrictive. Of the latter, nine felt that the current definition required greater clarification. Four respondents, including three disability organisations, expressed concern that the definition did not explicitly include blind, partially sighted, deaf and hard of hearing people and people with learning disabilities or with mental health problems. These respondents worried that this could allow for discrimination to be exercised against certain groups, particularly those with mental health problems.

By contrast, a number of airlines and airline associations felt that the definition was too broad, particularly with the emphasis on self-determination, and that the International Air Transport Association definition of Incapacitated Passengers (set out in IATA Resolution 700) would be preferable.

A further concern raised was that the current definition of "illness" could provide a person with an infectious disease with a right to travel on board a flight. A query was also raised over the inclusion of "age" in the definition.

Government response:

In the revised version of the proposal the definition has been amended to remove reference to "illness", although "age" is retained. The Government accepts that "illness" could potentially cover a range of ailments, some of which might affect the health of the crew and fellow passengers. However, excluding older people would unnecessarily restrict the range of persons that this Regulation seeks to assist. Accordingly, the Government supports the revised version of the definition, which continues broadly to mirror the definition of persons with reduced mobility found in existing EU legislation. Further amendment of this definition would be likely to cause confusion and uncertainty within the industry and potentially lead to inconsistent application of a range of consumer related legislation.

The Government does not consider that the failure specifically to include reference to blind, partially sighted, deaf and hard of hearing people, and those with learning difficulties of mental illness would cause those groups to be disadvantaged. The current definition includes reference to sensory or locomotory disability and intellectual impairment, which ought to be sufficiently inclusive.

Are the conditions for preventing air carriers and others refusing to carry a PRM in your view effective and proportionate (Articles 3 & 4)?

The Department received twenty-seven responses to this question also, of which nine were broadly content with Articles 3 and 4. The remaining eighteen respondents sought further clarification or amendment of certain expressions, particularly those found in Article 4. Nine respondents queried the reference to, "the justified absence of cabin crew", and a number of industry respondents stated that there was no direct link between the number of crew and the number of PRMs carried on board an aircraft.

Some respondents felt that, in view of the lack of harmonisation in European safety rules, the broad reference to "applicable safety rules" in the section on derogations could be abused unless the situation was carefully monitored. However, a number of airline respondents strongly supported this derogation. One suggested that it should be extended to include other national safety requirements imposed on, or specified by the airline, in order to cover certain standardised European rules that had not been uniformly incorporated by Member States into national legislation. By contrast, one respondent argued that the derogations were too broad in scope and that refusal should only be permitted in extraordinary circumstances and with clear justification.

Six respondents argued for the derogations to include refusal of carriage on health and safety grounds. There was a particular concern amongst airline respondents that cabin crew should not be expected to act as carers.

Three respondents raised concerns about Article 3.2(b), under which an airline shall not refuse embarkation of a PRM when that person is transferred from a flight for which he holds a reservation to another flight. One respondent felt that in its current form, this Article might encourage airlines to shift PRMs onto another carrier. Another argued that this Article was inconsistent with the Regulation on denied boarding compensation and that airlines should not be penalised if, for reasons beyond their control, they could not provide an adequate service to a PRM. The third respondent also argued that this Article was too wide and conflicted with existing health and safety rules.

Finally, two respondents queried the requirement for airlines, their agents or tour operators to communicate the reasons for refusal in writing, particularly where a booking had been processed shortly before departure. One respondent argued that where a written explanation was required, this should be permitted to be carried out through electronic means. Further, it was argued that where bookings are made through an agent, the airline should only be responsible for contacting that agent and not the individual passenger.

Government response:

The Government agrees that "the justified absence of air crew" is not relevant to the number of PRMs carried and this reference has now been removed from the revised text of the proposal.

The Government notes concerns, notably from disability groups, about the broadness of the reference to "applicable safety concerns" in Article 4(1). However, appropriate standards are absolutely necessary to ensure the safety of all passengers on board aircraft. The Government acknowledges the discretion that this gives air carriers, but considers that, on the one hand, this is inevitable, while on the other it should be tempered by the revised proposal that now includes a provision requiring air carriers and airport managing bodies to ensure that all staff dealing directly with the travelling public receive disability awareness training. Understanding the specific needs of individual PRMs should help staff determine whether applicable safety concerns could reasonably justify refusal of carriage.

The Government accepts that aviation safety requirements remain to be harmonised fully across the European Community, and that not all European requirements have been fully transposed into national legislation. The Council is still considering how these latter requirements can be accommodated.

Those respondents supporting a derogation for health and safety reasons generally did so out of concern about the ability of service providers to handle obese people. However, the Government does not consider that the size of a passenger should, in itself, be a sufficient reason to refuse carriage and the issue may be mitigated through appropriate training and the provision of suitable equipment.

The Government considers that those PRMs transiting an airport, or being transferred from one flight to another, should receive no less favourable treatment as a result.

Are the timings proposed in Articles 3 & 5 workable?

Twenty-one respondents expressed views on this question, of whom thirteen were dissatisfied with the proposed time limits.

Eight respondents (predominantly airlines) argued that the proposed default check-in time for PRMs should be increased from sixty minutes to two hours.

Others felt that, although advanced notice might be reasonable for certain groups of PRMs, it might not be so in the case of older people, who might simply needed assistance in getting from the airport lounge to the departure gate.

Seven respondents considered that 24 hours prior notice of the need for assistance would be insufficient, especially in the case of long haul flights where the carrier might need to fly in specialist equipment from its base of operations. One respondent argued that the current 24 hour notification period conflicted with existing national codes of practice, which specify a 48 hour notification period. Two respondents said that the notification period should be the same for both regular and transit passengers. Of the respondents arguing for an increase in the notification period, the great majority agreed that 48 hours prior notice would be more appropriate.

Two respondents commented on the requirement for airlines to provide PRMs with a written explanation for being refusing a booking or carriage within five working days. Both felt that this was too short a period, with one arguing that this should be extended to 21 working days.

Industry respondents felt that it should be stipulated that the notification system between carriers and tour operators and the airport should be robust.

Government response:

The Government considers that increasing the default check-in time is unnecessary as the draft proposed Regulation now allows for carriers to specify a longer period when a booking is made. A degree of flexibility is as appropriate since not all PRMs require the same level of assistance.

The Government is of the view that, in order to ensure that suitable equipment is in place to meet the individual needs of the passenger, some prior notification of a request for assistance is highly desirable. This does not mean that assistance would not be available/provided where no prior notification had been given, but simply that the same levels of service could not be guaranteed. There is support amongst Member States for increasing the notification period from 24 hours to 48 hours before the published time of departure.

With regard to the provision of a written explanation of the reasons for refusing to accept a booking due to the passenger's reduced mobility, the Government does not consider that five working days is unduly restrictive given that an air carrier or tour operator is required to provide immediately on request a copy of the safety rules that it applies to the carriage of disabled persons and PRMs. The revised version of the proposal now requires the written explanation to be provided within five working days of request, rather than the refusal itself.

Are the obligations on airport managing bodies to assist PRMs reasonable (Article 5)?

Opinion was divided on this question. Of twenty-six respondents, fourteen considered that the obligations placed on the airport managing body were unreasonable while twelve were broadly content.

Five respondents worried that the creation of a single service provider would lead to a reduction in the level of service quality to PRMs. There were suggestions that robust checks and balances would be needed, underpinned by service level agreements binding on both the airport and airport users.

Four respondents noted the vulnerability of mobility equipment during ground handling and urged that the airline should be responsible for loading mobility equipment into the hold or cabin of the aircraft. Some favoured making the airline liable for the temporary replacement of lost or damaged mobility equipment.

A number of respondents noted that the airport managing body was required to use "all reasonable efforts" to ensure that transiting PRMs could take the flight upon which they were booked. Seven respondents considered this to be insufficient and that the airport managing body should be required to do more.

The designation of arrival points at the airport attracted comment from five respondents who all agreed that these should be located either within or immediately adjacent to the airport.

Government response:

The Government notes the concerns raised about provision by a single service provider but considers that this arrangement would be the best and most practicable means of ensuring that a consistent and seamless service is available to all PRMs.

The Government also notes concerns about the ground handling of mobility equipment, but considers that this should form part of the seamless service provided centrally by the airline managing body, as currently envisaged in Annex I. A feature of the current proposal is that it does not require the airport actually to provide the assistance itself, so it is possible that in many cases an airline will do the handling under contract to the airport management body.

The Government acknowledges the difficulties associated with transiting PRMs. It is likely that the proposal will be amended to put the onus on the airport managing body to ensure this service, leaving open the possibility of legal redress in case of failure.

On the question of designating arrival points, the Government feels that some limit should be placed on the geographical location of these points to retain proportionality. The Government would prefer designated arrival points to be located within the airport boundary or at airport car parks under the control of the airport managing body.

Do you agree that the airport managing body should organise the necessary assistance to PRMs?

Fifteen of twenty-six respondents commenting on this question agreed that the airport managing body should be responsible for organising the necessary assistance to PRMs. Those arguing against this position generally either considered that the airline should be able to self handle its own passengers or alternatively choose its own service provider.

The chief concern was about the institution of a single service provider which some correspondents considered would be in a monopoly position and would need to be subject to robust checks and balances to prevent abuse of its dominant position.

Government response:

The Government favours the establishment of a centralised service provider as the most practicable and reliable means of ensuring a seamless service to passengers. The Government recognises however that safeguards may be necessary to ensure the maintenance of minimum quality standards and prevent possible abuse.

If so, should the airport managing body be able to recover all the costs from the airlines? And should it merely be able to recover costs, or be obliged by law to do so?

Of the twenty-one respondents commenting on one or other of these two questions, seven were of the view that the airports should recover the full cost of the service from the airlines, nine felt that the costs should be shared between the airport managing body and the airlines to encourage cost efficiencies, while one respondent suggested that the charge should only be levied on those carriers using the PRM service.

Three respondents commented that the airport managing body should not be permitted to make a profit from PRM handling, while one respondent argued that allowance should be made for a return on investment, which would ensure quality of service.

Of the ten respondents commenting on whether the charge should, or merely could, be levied on airlines, six felt that the airport should be given the flexibility to decide whether to levy a charge on airlines for the PRM service, while four considered this should be obligatory in order to maintain a level playing field.

Government response:

The Government is in favour of the costs of a centralised service being recovered in full from the airlines, but also considers that the accounts for this service should be both transparent and separated from the airport's other services.

With regard to the question of whether the charge should be optional or obligatory, the Government notes that the majority of respondents support an optional arrangement and could support this approach provided that the option is exercised on a non-discriminatory basis.

Are the proposals adequate in respect of cost-effectiveness of provision (Article 6)?

Eleven responses were received to this question, four of which agreed that the proposals set out in Article 6 were adequate in terms of cost-effectiveness.

Of the other seven responses, four expressed concern over the lack of control the airlines would be able to exert in influencing costs and the efficiency of the service. Airline respondents argued that charges levied and the resources committed to the service should be decided in agreement with the airlines rather than merely following consultation. They felt this would best be achieved by the inclusion of an additional Article dealing with the issue of cost effectiveness. One respondent suggested that airlines and airports should work with PRM representatives to ensure that the costs and nature of the service required was fully understood.

Government response:

The Government notes the concerns raised by airline consultees over the costs and possible efficiencies of a centralised service. However, the Government considers that requiring the airport managing body to set charges and the resources committed to the service in agreement with airlines would enable the latter effectively to veto proposals, causing delays and confusion regarding the provision of the service, to the detriment of PRMs. The airline input has been strengthened during discussion of the proposals by requiring the airport management to work in co-operation with airlines, rather than in consultation. In addition the Council is considering a provision for the enforcement body to oversee the application of the charging regime. The Government regards these as reasonable safeguards.

Could the assistance be organised in any other way? For example, should individual airlines be allowed to self handle? Does the provision that the airport managing body may sub-contract the assistance, for example at an entire terminal, affect this?

Seventeen of the twenty-nine responses to these questions were in favour of the airlines having the option to self handle, provided that standards at least matched those provided by the centralised system and that lines of responsibility were clear. Opponents of the self handling option expressed concern that this would take away the advantages of a seamless service to PRMs, would weaken the economies of scale and would threaten the viability of the centralised scheme.

Only seven respondents commented on the question as to whether the airport managing body should be able to sub-contract the PRM service, of which five agreed that this should be permitted, provided that quality standards were maintained.

Government response:

The Government considers that the creation of a centralised service provider will be the best means of ensuring a uniform, seamless and high-quality service for PRMs across the European Community. If self handling were permitted, safeguards would need to be put in place to ensure that the residual service provided to the passengers of those airlines choosing not to opt out of the central service was robust, viable and able to meet the appropriate minimum service level quality standards. It is not clear to the Government that adequate and workable safeguards could in practice be devised.

Do you agree that the charge to airlines should be proportionate to the total number of passengers they carry at the airport, i.e. not specifically the number of PRMs?

The great majority of respondents to this question (twenty-four out of twenty-seven) agreed that the charge to airlines should be based on the total number of passengers carried.

Government response:

The Government notes this clear support for the notion that the charge should be levied on the basis of the total number of passengers carried.

Are the proposals on quality standards appropriate? Do you agree with the cut-off of two million passengers per annum for the setting of quality standards (Article 7 & Annex I)?

Ten respondents considered the quality standards to be appropriate while twelve suggested that changes or improvements could be made.

A number of airline respondents argued that the current provisions requiring the airport managing body to consult with airport users were insufficient and that binding service level agreements dealing with quality standards, dispute resolution procedures, penalties for non-compliance and measures to avoid abuse of the system should be drawn up with input from disability groups.

The great majority of respondents (seventeen out of twenty-one) considered that there should be no cut-off point for the setting of service standards.

Government response:

The Government considers that the interests of airlines will be best served by the requirement placed on airports to have separate, transparent and audited accounts covering the costs and charges of delivering the centralised service to PRMs. In addition, the enforcement body will have a key role in overseeing the setting of service standards and the reasonableness of the charging regime.

The Government supports the reduction or removal of the arbitrary 2 million passengers per year limit on the size of airport required to set and publish quality standards for the assistance to be provided to disabled persons and PRMs.

Are the provisions covering the assistance to be provided by air carriers appropriate (Article 8 & Annex II)?

Two issues were of particular concern to a significant number of respondents, the carriage of assistance dogs in the cabin and the transportation of mobility equipment. Of the eight respondents commenting on the carriage of assistance dogs, six felt that the requirement for airlines to carry assistance dogs in the cabin on flights of less than five hours was unnecessarily restrictive. It was pointed out that the Association of European Airlines' current standard practice is for carriers to allow assistance dogs in the cabin for flights of up to 10 hours and it was suggested that this longer duration should be applied to the current proposal. One respondent disagreed, arguing for the retention of the five hour limit.

On the carriage of mobility equipment, five respondents commented on the current requirement to transport one piece of mobility equipment. Three argued for a size and weight limit while one felt that the limit of one piece of equipment was unacceptable. One respondent argued for a derogation in the case of mobility equipment with dangerous power sources, such as wet cell batteries. A number of respondents recognised the vulnerability of mobility equipment in transit and sought clarification of liability in the event of loss or damage.

Other issues raised in response to this question surrounded the communication of information or notifications, including changes of circumstances, in an appropriate and timely format. Finally, a number of disabled passenger rights groups raised important practical issues, such as the possible designation of PRM seating areas on board an aircraft and access to on-board toilet facilities.

Government response:

The Government acknowledges that current practice amongst AEA Members is to allow the carriage of assistance dogs on flights of up to 10 hours. It also recognises the Guide Dogs for the Blind Association also supports a 10 hour limit. Consequently the Government supports the amendment to the text which has increased the flight time to 10 hours.

With regard to the carriage of mobility equipment, for practical reasons it may be necessary for an airline to limit the number or weight of mobility equipment that can be carried either in the hold or cabin. The UK will consider a proposed amendment that would allow, in addition to medical equipment, the carriage of two pieces of mobility equipment per passenger subject to possible space limitations on the aircraft.

The Government accepts that aircraft design constraints may prevent the full range of access to on-board facilities that would otherwise be available to disabled persons and PRMs on the ground, but considers that aircraft design is beyond the scope of this proposal. The Government supports the requirement in Annex II for an airline to make all reasonable efforts to arrange seating to meet the needs of individual disabled people and passengers with reduced mobility, subject to safety requirements and availability.

Are the provisions on notification appropriate and workable (Article 9)?

Responses to this question were split evenly between those who considered the notification provisions to be appropriate and workable, and those who did not.

One major concern of respondents was the requirement immediately to notify an airport of the need for assistance. A number of respondents felt it would be inefficient for carriers to have to notify the airport at the time of booking which could be many months in advance of the flight. Instead, it was suggested that suitable notification arrangements could be agreed between carriers and the airport. At the same time, airports could be required to confirm receipt of the notification to avoid any misunderstandings.

Four respondents argued that internet booking sites and other booking systems should be fully accessible and PRMs protected in the case of communications breakdowns.

Government response:

The Government agrees that it would be inefficient to require air carriers and tour operators always to notify the airport of the need for passenger assistance at the time of booking. Instead, the Government would prefer that such information should be provided in whichever way best meets the requirements of all parties. This matter is still under consideration in Council.

Do you have any views on the appropriate bodies to oversee and enforce the provisions of this Regulation (Article 11)?

Of the nineteen respondents commenting on this question, nine felt that the Civil Aviation Authority and the Air Transport Users Council were well placed to oversee and enforce the provisions of the Regulation. Two respondents considered that the Department for Transport or an independent body responsible to the Department should assume these roles. Of the remaining responses, general comments were made concerning the need for a strong enforcement regime together with the regular publication of compliance information. No other organisations were put forward as suitable enforcement bodies.

Government response:

The Government agrees with the majority of respondents expressing a preference that the Air Transport Users Council appears the natural candidate for the UK's complaints handling body and the Civil Aviation Authority for the designated enforcement body. However, further discussions will need to be carried out with both bodies, and with other interested parties, before either is formally designated.

Do you have any other comments on the Commission's proposal?

This question drew nineteen responses. Six respondents expressed concern about possible inconsistencies between the Commission's proposal and a Notice of Proposed Rule Making on the rights of Passengers with Reduced Mobility travelling by air put forward by the US authorities. There was a concern that uncertainty could arise over which set of rules should be applied particularly for carriers operating between Europe and the US.

Five respondents commented on the implementation period for the Regulation, with three stating that it should be two years, one that it should be three years, and one concerned that the delay might be unreasonable.

Other issues raised in response to this question included requests that the Regulation should only apply to airports open for commercial transport operations and that advice on how to complain should be made widely available in a number of accessible formats. One respondent pointed out that disabled people do not always require Article 6 assistance and that this should be brought out in appropriate staff awareness training. Finally, there was continuing concern expressed about the compatibility of the proposal with existing Community legislation, notably the Ground handling Directive and the airline's liability under the Regulation on denied boarding compensation.

Government response:

The US Department of Transportation (DOT) published a Notice of Proposed Rule Making (NRPM) at the end of 2004 indicating an intention to extend the provisions of the Air Carrier Access Act, which includes requirements for both aircraft design and fitting and for service standards, to overseas airlines flying into and out of the US. The Government accepts the need for both regulatory systems to work in harmony and has offered to work with the US DOT to establish a practical basis for agreeing equivalence of provision that would meet the needs of both disabled Americans and Europeans.

On implementation, the Government considers that a balance needs to be struck between avoiding delay in the introduction of this legislation, which will bring new rights to disabled persons and passengers with reduced mobility travelling by air, and allowing the industry time to adapt to its provisions. A two year implementation period, from the date that the Regulation is adopted, would appear to be a suitable space in which the new arrangements can be put in place.

With regard to the compatibility of the proposal with existing EU legislation, particularly Council Directive 96/67/EC on access to the ground handling market, and Council Regulation 261/2004 on denied boarding compensation, the Government notes that following discussion in Council the proposal now contains clarification over which should take precedence.

Questions 13 to 18

The consultation document sought information from respondents on the likely impact, costs and benefits of the proposed Regulation. The information provided has been incorporated, where appropriate, into the Department's final Regulatory Impact Assessment that will be published on the DfT web site in due course, and is therefore not repeated here.

ANNEX

List of respondents

Access Association

Age Concern

Air New Zealand

Air Transport Users Council

Airport Operators Association

Airports Council International - Europe

Association of Asia Pacific Airlines

Association of European Airlines

BAA

BMI

Board of Airline Representatives in the UK

British Air Transport Association

British Airways

The Charter Airline Group

Civil Aviation Authority

Disabled Persons Transport Advisory Committee

Easyjet

European Regions Airline Association

Federation of Tour Operators

Guide Dogs for the Blind Association

Highlands and Islands Airports Ltd

International Aviation Handlers Association

International Air Carrier Association

Jet2/Channel Express

Joint Committee on the Mobility of Blind and Partially Sighted People

Trevor Jones

Leonard Cheshire

Liaison Group of Airport Consultative Committees / Gatwick Airport Consultative Committee

Loganair

London City Airport Consultative Committee

Manchester Airports Group

Mobility and Access Committee for Scotland

Royal Aeronautical Society

The Royal National Institute for Deaf People

Scottish Accessible Transport Alliance

UK Ergonomics Society

Virgin Atlantic

Wirral Fibromyalgia Support