Guidance

DPTAC response to the ORR consultation: complaints code of practice revised draft

Published 16 August 2023

Introduction

Disability affects some 14 million people in the UK. It includes physical and sensory impairments as well as ‘non-visible’ disabilities such as autism, dementia, learning disabilities or mental health conditions. For many people a lack of mobility or confidence in using the transport system is a barrier to being able to access employment, education, health care, broader commercial opportunities (for example shopping), and a social life.

The ability for all passengers, including disabled people to be able to complain easily and obtain redress is crucial. Accessible, transparent and easy-to-use complaints procedures support consumer confidence in the rail sector and are also a key part of what drivers improved service, culture and behaviours, which in turn and delivers better outcomes for all.

DPTAC response to the consultation

We welcome the opportunity to comment on the ORR’s complaints code of practice revised draft. We outline below our feedback on the revised wording of the complaints code of practice providing our views on selected issues. Where appropriate, we have also proposed additional issues that should be considered.

We are supportive of most of the changes. We also see this revision of the code as an opportunity to deliver improvements in access to services and a reduction in exclusion and discrimination. Our overriding concern is that complaints processes must be accessible to all and offer the complainant the flexibility to choose how to submit their complaint irrespective of how the channel they had previously used to purchase the service and communicate with the transport provider.

We would like to see research undertaken by ORR specifically focused on people with lived experience of disability. The aim should be to identify any issues and challenges with accessing the complaints handling process of rail operators as we don’t believe that enough is known about the experience of disabled people. Filling this gap in insight is particularly important because of the specific duties the Equality Act 2010 imposes on providers of services – greater details are at Provision 4: Responding to and investigating complaints.

Ownership of complaints

We particularly welcome the addition of para 1.25 (PDF). This helps to ensure that licence holders (transport providers) can demonstrate at senior management level an understanding of the levels and types of passenger complaint, the actions that have been taken to address issues, and how that insight is used to drive continuous improvement and better outcomes for passengers. Our advice to the Department for Transport (DfT) has been to ensure that there is Board-level responsibility for service-levels and clear oversight on delivery on accessibility with regular reporting via standing items on Board agendas. We propose that this complaint volume, trends and cause-analysis should form part of such regular Board reporting.

Provision 1: information for passengers

Purpose – to promote passengers’ awareness of the complaints process and how to complain

We support the proposed changes here (PDF), particularly the need to make it clear that material relating to the promotion of complaints handling, and the Complaints Handling Process (CHP) itself, must be presented in plain language and avoid technical terms.

High levels of consumer awareness of the complaints process are important to achieve and maintain, including signposting at all stages of the relationship between the passenger and the licence holder. We would propose that there is requirement that the levels of consumer awareness are measured, monitored and published and a target level set and to be achieved by licence holders. This should also form part of our proposed ORR research into the experiences of people with lived experience of disability using the complaints process.

Provision 2: receiving complaints

Purpose – to set out how passengers can access the complaints process

We welcome most of the proposed changes here (PDF). However, it is important to remember that disabled people are disproportionately represented among those who are ‘digitally excluded’ and either face substantial challenges accessing the internet or have no access at all:

• 6% of non-disabled adults have no internet access compared to 23% of disabled adults
• around 38% of people with sight loss have never used the internet or have no internet access
• even where people can access the internet, for those who use screen-reader technology or a mouseless keyboard the ticket purchasing platforms themselves can be inaccessible
• older people also are less likely to use the internet – in England among those aged 75+ more than 42% do not use the internet (PDF)

Passengers’ requirements and choice of communications may change over time, and may even change during the process of an individual complaint being pursued. Choice of how to submit a complaint remains key. For example, just because a customer has booked online and interacted with the transport operator online throughout their relationship, this should not prevent them from making their complaint using a different format if they choose. This would reflect a number of things including changing personal circumstances, or because some activities such as booking travel, reserving assistance if needed etc can be a very different experience and have different requirements to the process of setting out and submitting a complaint.

That customer choice should be reflected in the range of accessible formats available to remove the different barriers disabled people face when complaining. These include, for example, large print, audio, British Sign Language (BSL), Braille, and Easy Read.

Websites

We are disappointed that ORR does not feel able to include the original proposal that the relevant web link for complaints should be labelled ‘complaints’ rather than hidden under a more generic and less obvious heading such as ‘Contact us’ or ‘Find help’. If consumers have something they wish to complain about then they should be able to easily find a place to do just that either on the operator’s homepage on one click from it. Being a consumer is not a full-time job, and for most consumers, when they do wish to contact an operator it will be for a specific reason. That could be to purchase, find information, ask a question, provide general feedback or make a specific complaint. The avenues for those communications are generally clear and distinct (even if some of those communications end up with the same people or teams within the operator). That clarity should remain for ‘complaints’.

For many disabled people the simpler and more straightforward the language, the lower the risk of confusion and exclusion. For example, it is particularly important for many disabled people who have a learning disability to be provided with information that uses language and terms that are relevant to the reason why they wish to make contact. Hiding the place where complaints can be made would be a retrograde step and potentially exclude some consumers or present an unnecessary hurdle.

Provision 3: recording complaints

Purpose – to set out the requirements on record keeping for complaints

We support the proposed changes here (PDF).

We would welcome involvement in the review of the core data as part of ORR’s annual core data exercise later in the year. It is important that ‘real-time’ complaints data should be made available for the statutory advocacy bodies, Transport Focus and London TravelWatch. This is essential to the effective delivery of their role analysing this important data to understand themes and issues affective passengers.

We welcome the fact that ORR has been engaging separately with the watchdog organisations and continues discussions around the scope for specific areas of complaint to be highlighted, including accessibility, safety and potentially hate crime – all areas that are of particular and increasing concern to disabled people. Our particular concern is to ensure that data arising from complaints about accessibility and disability discrimination, as well as related issues around safety and hate crime is visible and used to drive improvement.

Provision 4: Responding to and investigating complaints

Purpose – to set out the requirements for responding to and investigating complaints

We welcome the proposals here (PDF). The need to keep customers updated on their complaint is very important, particularly where there may be a delay, so the requirement for an update every 10 working days is particularly welcome.

As with all other information and communications to customers, updates must be fully accessible to the individual customer and in a format of their choosing that best meets the customer’s own requirements for the purpose the communication is intended.

We have a particular recommendation that relates to disputes under the Equality Act 2010. This relates to the obligation on operators to make reasonable adjustments on an anticipatory not just a reactive basis.

It is particularly important to note that the duty under the Equality Act is owed to disabled people generally, and, unlike with other protected characteristics is an anticipatory duty which means service providers and people exercising public functions must anticipate the needs of disabled people and make appropriate reasonable adjustments.

We do not believe that there is currently any reliable process to ensure relevant complaints are linked with the legal obligation to make reasonable adjustments to prevent substantial disadvantage occurring to all other disabled passengers. For example, a passenger might complain about the lack of a particular feature at a station that has prevented them from using trains from that station. The rail operator will typically view the complaint only in terms of resolving the issue for the individual complainant. For example the operator may apologise, offer alternative accessible transport, suggest alternative routes, or possibly offer compensation of some kind. The operator’s focus will very much be on keeping the individual complainant happy - as will the Ombudsman’s should the complaint be escalated. What the operator and Ombudsman will not automatically do is use the complaint as evidence of the need to consider whether a reasonable adjustment is needed to prevent other disabled people experiencing the same substantial disadvantage in future (to meet the ‘anticipatory duty’).

Operators may promise to pass on the complaint to the station management or facilities teams, for example, but this does not deal with the anticipatory duty in a reliable or structured way. More often than not, the complaint is viewed as a ‘suggestion’ not the trigger for a legal obligation, and just gets lost in the system.

Ideally any relevant complaint by a disabled person relating to a barrier to access should automatically be considered as potential evidence of a need to make an adjustment, and an initial decision should be made on whether this would be reasonable – as part of the complaint handling process. For this to work properly, operators would need to maintain some kind of formal ‘register of reasonable adjustments’ and ensure that a senior individual is responsible for this. We suggest that this could be overseen by ORR. The result of this would be good for the operators as a way of demonstrating that they have met their anticipatory duties should they be challenged by other disabled customers. Many decisions regarding reasonableness of adjustments are very straightforward, and most complaints fit established patterns which allow for a standardised approach. Where there is a real opportunity for improvement is in the reasonable adjustments which can make a significant improvement to accessibility for all other disabled customers.

The key point is that a complaints system which focusses entirely on redress for the individual passenger is not appropriate when it comes to the specific rights of disabled people to have their needs anticipated. Complaints are a key piece of evidence which operators can use to support the evaluation of reasonable adjustments, and at the moment the systems are not in place to ensure this happens.

In our response to the ORR consultation on the Rail Ombudsman Operating Model we have outlined the importance of funding the Ombudsman’s prevention work. Prevention is a key element in the social value of the Ombudsman taking its role much wider than just dealing with individual cases, and ensuring that insights and data are used to prevent other consumers experiencing the same problems. This is particularly important in the context of service providers’ ‘anticipatory duty’ under the Equality Act.

Provision 5: resolving complaints

Purpose – to set out the requirements in relation to the resolution of complaints

We welcome the new requirements added here (PDF).

Provision 6: Alternative dispute resolution (ADR)

Purpose – to set out how licence holders must promote awareness of and signpost to the relevant alternative dispute resolution (ADR) scheme

We welcome the new requirements set out here (PDF). In particular we welcome the requirement on licence holders to provide information on ADR when acknowledging complaints and that this should extend to all complaints, including telephone contacts.

While the ORR’s proposal to collect additional data on the impacts of reducing the current 40 working day timescale for operators to deal with complaints before escalation is welcome, we are disappointed that ORR has chosen not to reduce the timescale as a matter of urgency.

Our concern is that because of the long timescale a number of consumers are likely to give up and not pursue their complaint, or may simply lose the motivation after a period of time. Unnecessary or unrealistic process timescales are not in consumers’ interests. And in the current financial climate the need for disputes to be resolved quickly and for consumers to receive compensation that may be due to them is particularly important.

Which? in its recent policy report on ADR found, in relation to the 40 working day timescale that ‘In the digital age this period is simply too long, and for most types of claim is unjustifiable. It damages the effectiveness and consumer trust in ADR, and can contribute to the level of harm consumers may have already suffered.’

We do not agree that a reduction in the 40-day timescale would have any adverse effect on complaints nor would it encourage customers not to engage with first-tier complaints resolution and go straight to the Ombudsman. We view the more likely effect of a reduction in the timescale would be to encourage the operator to engage earlier with the complainant in a more focused way, driven by the incentive to deal seriously with the complaint and settle it quickly - with all the cost savings this brings.

Provision 7: reporting

Purpose – to incentivise good complaints handling through transparent reporting, and to monitor performance

We support the proposals set out here (PDF).

Provision 8: Training, resourcing and quality assurance

We support the proposals set out here (PDF). In addition, effective complaints handling is best served by staff who understand the issues they are investigating allowing for the identification of relevant evidence and making sense of contextual and causal factors. This includes disability awareness, vulnerability and awareness of all other protected characteristics.

We propose that all staff should received in-person disability equality and awareness training, including regular refresher training. We would urge ORR to consider including a requirement for all transport operators to achieve accreditation as part of the DfT’s Inclusive Transport Leaders Scheme, or at least satisfying training criteria that matches the level of training that already exists as part of the DfT’s REAL disability equality training programme.

Disabled Persons Transport Advisory Committee (DPTAC)

August 2022