TAKING CHARGE – THE ELECTRIC VEHICLE INFRASTRUCTURE STRATEGY: A MICROSCOPE ON THE LEGAL DUTIES OF GOVERNMENT AND LOCAL AUTHORITIES WITH RESPECT TO ACCESSIBLE ELECTRICAL INFRASTRUCTURE
Introduction
On 25 March 2022, the UK Government published the Electric Vehicle Infrastructure Strategy. The plan, to quote the foreword from the Secretary of State for Transport, is to “get more chargepoints in the ground, quicker.” I want to focus on the challenges in relation to accessibility, and most importantly on what could potentially be done in terms of a legal remedy if the chargepoints are not sufficiently accessible to those with disabilities.
The Electric Vehicle Infrastructure Strategy and Disability
The strategy document specifically mentions plans in relation to accessibility. Their ambition is stated as follows at page 36:
“Chargepoints will work for everyone. They will be inclusively designed for all drivers, meeting standards developed with disability access as a priority.”
The term “inclusively designed” is defined in the glossary at page 77:
“Whereby the chargepoint and surrounding area are designed with inclusivity and accessibility in mind; that all consumers, including those with visible and non-visible disabilities, can easily charge their vehicle. This could consider aspects such as height of chargepoint, kerb height, appropriate signage cable weight and space between bollards. We recognise that there may not be a universal solution to or definition of ‘accessible’, given consumers’ access needs can vary on their disability. This will be worked through as part of the BSI Standards development process.”
It is likely to be local authorities who will carry out the details of designing where the chargepoints will go.
“Accessibility will also be a cross-cutting focus for public chargepoints. We want everyone, including disabled drivers, to be able to use the public network with ease. We launched a project to develop a ground-breaking British chargepoint design, with sustainability and inclusive design at its core. The final design was unveiled at COP26 in Glasgow. We will publish the design considerations developed as part of the chargepoint design project, which will help guide local authorities and the chargepoint industry to fully consider good design, prioritising ease-of-use, inclusivity, and accessibility. We have already published guidance, through the Inclusive Mobility document, on best practice for designing transport infrastructure for a barrier-free pedestrian environment.”
The Inclusive Mobility guidance document only mentions electric vehicle charging points twice in its 131 pages. However, it does note that the minimum width of a footway with an electric vehicle charging point should be 1000mm, and the maximum length of such a restricted space should be 6 metres.
The Equality Act 2010
The Government, local authorities and private businesses providing transport infrastructure are service providers within the meaning of the Equality Act, because they provide a service or facilities to the public or a section of the public, whether or not for payment (s31 Equality Act 2010). Their activities therefore engage Part 3 of the Act which provides a duty on service providers to make reasonable adjustments for disabled persons (s29)(7)(a) of the Act; the duty itself is set out at s20 of the Act). The Equality Act 2010 Code of Practice on services, public functions and associations published by the EHRC is clear at page 46 that “Part 3 of the Act applies to the transport infrastructure”.
Additionally, the Government and local authorities will be under the public sector equality duty at s149(1) of the Act.
The duty to make reasonable adjustments has three requirements. The second and third requirements are relevant (s20(4) and s20(5) of the Act respectively):
“(4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.(5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.”
Paragraph 2 of Schedule 2 of the Act provides that the reference to “a disabled person” above means “disabled persons generally”. In Roads v Central Trains Limited (2004) 104 Con LR 62, a case about wheelchair access to Thetford train station, the Court of Appeal phrased the test under s20 as follows:
“12…First (in paraphrase), does the particular feature impede people with one or morekinds of disability; secondly, if it does, has it impeded the claimant.”
Chargepoints would appear to constitute a physical feature, as would any other physical feature which might inhibit access to a chargepoint to disabled persons. The s20(4) requirement, in my view, provides a duty on the provider of charging points to take such steps as is reasonable to take to avoid any disadvantage disabled persons might have in accessing a chargepoint where there is such a physical feature. The s20(5) requirement would seem to add little, but perhaps puts this much into focus: where access requires an auxiliary aid, such steps as are reasonable to take to provide the auxiliary aid should be taken.
Where this has not happened, then a putative claimant could enforce their rights in the County Court, which has jurisdiction over s29 claims. Judicial review may provide additional remedies against a public body.
The Public Sector Equality Duty under s149 of the Act perhaps adds little. It provides a duty on a public authority to (so far as relevant to electric chargepoints) have due regard to the need to advance equality of opportunity between those who share a protected characteristic and those who do not (s149(1)). Having such due regard includes having due regard in particular to the need to take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it (s149(3)). This duty it seems to me relates to the planning by local authorities of electric vehicle charging points, including their location and design. However, s156 of the Act makes it clear that a breach of s149 confers no cause of action in private law. Nonetheless, it may form part of a judicial review claim where appropriate.
Adherence to national guidance
It would be no surprise to see future Government guidance on the design of electric vehicle chargepoints. Where a local authority fails without good reason to follow such guidance, it will likely find itself at the wrong end of a claim. In the context of guidance on the use of tactile paving surfaces, Kenneth Parker J in R (Ali) v Newham London Borough Council [2012] EWHC 2970 (Admin) at paragraph 41 emphasised that there is a requirement on a local authority to follow national guidance unless it has good reasons to depart from it. A court would expect such good reasons to be provided, and presumably that any documents providing such reasoning, should they exist, be disclosed.
Conclusion
It would serve government, local authorities and companies providing electric vehicle charging points well to familiarise themselves with duties which the Equality Act 2010 puts on them. In particular, they will need to take reasonable steps to remove any disadvantages in accessing charging points that disabled people may have. This duty is wide-ranging in scope: it engages the design, location and installation of each charging point. If they do not, they could suffer both reputational and financial cost in the courts.
Image by Lee Rosario from Pixabay
