The Mandatory Travel Concession (England) Regulations 2011

Made: 13th April 2011

Laid before Parliament: 18th April 2011

Coming into force: 12th May 2011

The Secretary of State makes the following Regulations in exercise of the powers conferred by sections 149(3), 150(6), (7) and 160(1) of the Transport Act 2000[^f00001]:

Part 1 — General

Citation, commencement and cessation

1

• (1) These Regulations may be cited as the Mandatory Travel Concession (England) Regulations 2011.

• (2) They come into force on 12th May 2011.

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Review

2

• (1) Before the end of the review period, the Secretary of State must—

• (a) carry out a review of these Regulations;

• (b) set out the conclusions of the review in a report; and

• (c) publish the report.

• (2) The report must in particular—

• (a) set out the objectives intended to be achieved by the regulatory system established by these Regulations;

• (b) assess the extent to which those objectives are achieved; and

• (c) assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved with a system that imposes less regulation.

• (3) “Review period” means the period of five years beginning with the day on which these Regulations come into force.

Interpretation

3

• (1) In these Regulations—

• (a) “the Act” means the Transport Act 2000;

• (b) “applicant” means a person making an application to which Part 5 of these Regulations applies;

• (c) “average commercial adult fare” means the average fare paid by adult non-concessionary passengers on any particular route or service of an operator;

• (d) “commercial ticket sales” means the number of tickets of any given ticket type sold by an operator to fare paying passengers on any route or service on which the concession is available;

• (e) “commercial ticket revenue” means the revenue received by an operator from its commercial ticket sales on any route or service on which the concession is available;

• (f) “concession” means any travel concession provided or to be provided in accordance with section 145A(1)[^f00002] of the Act;

• (g) “concessionary journeys” means the total number of eligible journeys[^f00003] made on eligible services[^f00004] by persons entitled to receive a concession;

• (h) “operator” means an operator of an eligible service on which a concession is claimed;

• (i) “payment day” means any day on which a reimbursement payment is due to be made;

• (j) “payment period” means the period to which a reimbursement payment relates;

• (k) “reimbursement arrangements” include the method of determination and manner of payment of reimbursement by travel concession authorities to operators in respect of concessions to be provided;

• (l) “reimbursement payment” means any payment falling to be made in accordance with section 149[^f00005] of the Act;

• (m) “standard method” means the method for calculating the amount of reimbursement payments due to operators of eligible services adopted by a travel concession authority in accordance with regulation 9(1).

• (2) References in these Regulations to the date on which a notice is given are, in relation to notices sent by post, references to the date on which the notice is, in accordance with regulation 20(3), deemed to be received at the address to which it is sent.

• (3) Any reference in these Regulations to estimates or calculations made by a travel concession authority in relation to reimbursement payments is a reference to estimates or calculations made by the best practical method available to the travel concession authority.

Application

4

These Regulations relate to the concession established under section 145A of the Act and apply in relation to England.

Part 2 — Arrangements between Operators and Travel Concession Authorities

Reimbursement arrangements

5

Regulations 6 to 17 apply to the provisions to be included in reimbursement arrangements.

6

Subject to regulation 6A, it must be an objective of a travel concession authority when formulating reimbursement arrangements for an operator to provide that such operator—

• (a) is financially no better and no worse off as a result of providing a concession; and

• (b) receives appropriate reimbursement for providing concessions to the persons eligible to receive those concessions.

6A

During the period beginning with 24th March 2021 and ending at the end of 5th April 2024, regulation 6 applies as if the words “no better and” in sub-paragraph (a) were omitted.

7

• (1) The payment periods and payment days must be specified in the reimbursement arrangements and—

• (a) payment periods must not be longer than three months; and

• (b) in relation to each payment period, the payment day must not be later than the day which is half way between the first and last days of the payment period (and, in ascertaining the payment day, no account is to be taken of half days).

• (2) Each initial reimbursement in respect of a payment period must not be less than 85% of the amount estimated by the travel concession authority to be due to the operator in respect of the relevant payment period.

• (3) The balance of each reimbursement in respect of a payment period must be paid, subject to any adjustments shown to be necessary in the light of information available to the travel concession authority pursuant to arrangements giving effect to these Regulations, not later than three months after the end of the relevant payment period.

• (4) Subject to paragraph (5), if any such balance as is mentioned in paragraph (3) is not paid in accordance with that paragraph, provision must be made for the travel concession authority to pay interest (at a rate not less than the lowest rate at which the travel concession authority is able to borrow at the time) on the amount for the time being unpaid for the period beginning with the last date on which the balance should have been paid in accordance with paragraph (3) and ending with the date of actual payment.

• (5) Interest is not to be payable until a reimbursement arrangement has been in operation for six months nor in respect of any period falling wholly or partly within the first six months of operation of a reimbursement arrangement.

• (6) If the amount of any reimbursement payment made in accordance with paragraph (2) in respect of any payment period exceeds the total amount of that payment found to be payable in respect of that period, provision must be made for the travel concession authority to notify the operator in writing accordingly and deduct the amount of the excess from the reimbursement payments due to that operator in respect of any subsequent payment period.

• (7) If the circumstances described in paragraph (6) arise in relation to a person who is no longer an operator, the travel concession authority must notify that person accordingly and, unless that person disputes the existence or amount of the excess, that person must pay the amount of the excess to the travel concession authority within 30 days of the date of receipt of the notification.

• (8) Provision may be made for any reimbursement payment due in accordance with paragraphs (2) and (3) to be made otherwise than in accordance with this regulation in any case where an operator fails to supply information in accordance with reimbursement arrangements giving effect to these Regulations—

• (a) in the case of a payment due in accordance with paragraph (2), in sufficient time to allow the travel concession authority to form a reasonable estimate of the amount of the payment; or

• (b) in the case of a payment due in accordance with paragraph (3), in sufficient time to allow the travel concession authority to calculate the amount of the payment.

8

Subject to regulation 13, when formulating reimbursement arrangements, a travel concession authority may request information from operators which it reasonably considers relevant to assisting it in the formulation and operation of those arrangements, including—

• (a) commercial ticket sales;

• (b) commercial ticket revenue;

• (c) concessionary journeys; and

• (d) average commercial adult fare.

9

• (1) Subject to paragraph (4), in relation to each reimbursement arrangement, the travel concession authority must adopt a standard method to be used.

• (2) The standard method must provide for the travel concession authority to take into account any data supplied by an operator who shows that the method by which such data was derived is more appropriate for the calculation of reimbursement payments.

• (3) Where the amounts of reimbursement payments are estimated or calculated otherwise than by reference to a standard method, the estimates or calculations must be adjusted if the information upon which they were based is shown to be inaccurate in any material respect.

• (4) A travel concession authority that has reason to believe that the standard method used by it is inappropriate in relation to the reimbursement of any particular operator may, at its own cost and expense, make provision for a more accurate calculation of the reimbursement in respect of that operator.

10

Provision must be made for a travel concession authority to review the calculations made in accordance with the standard method at least once in each period of 12 months that the relevant reimbursement arrangement is in operation.

11

• (1) Provision must be made for additional reimbursement payments in any case where the operator demonstrates to the travel concession authority—

• (a) that that operator has necessarily incurred costs in providing services on which concessions are available in order to meet the extra demand created by the availability of those concessions additional to those costs that had been taken into account in the standard method; and

• (b) that those costs are such that they will not be met by reimbursement payments made in accordance with the standard method during the year in which the costs are incurred or during the three months immediately following the end of that year.

• (2) Provision must be made for additional reimbursement payments in any case where the operator demonstrates to the travel concession authority—

• (a) that the operator has supplied any information required in accordance with reimbursement arrangements; and

• (b) that in doing so it has incurred expenditure which it would not otherwise have incurred.

12

Any information supplied by an operator to a travel concession authority pursuant to regulation 8 or to reimbursement arrangements must only be used for and in connection with the calculation of reimbursement payments and such information must not be disclosed by the travel concession authority except—

• (a) with the consent in writing of the operator; or

• (b) to the extent to which the information in question has become public knowledge otherwise than by the act or omission of the travel concession authority.

13

Information may not be required on any of the following subjects—

• (a) the cost to the operator of providing any service or services on which concessions are available;

• (b) the total turnover of the business, or of any part of the business, of an operator; and

• (c) the annual rate or amount of the profit or loss of that business, or of any part of it.

14

A travel concession authority may require an operator to allow the officers, servants or agents of that travel concession authority to have access with reasonable frequency to (including the right to travel free of charge on) the vehicles of the operator on which concessions are available for the purpose of—

• (a) surveying or counting or estimating the number of passengers (whether generally or of any particular description) and the fares paid by those passengers; and

• (b) obtaining information on other matters relating to the journeys made by passengers who are eligible to receive concessions and necessary to the calculation by the travel concession authority of reimbursement payments.

Change in services and fares

15

Provision may be made for an operator to inform the travel concession authority of any changes in the services of that operator on which concessions are available, and of any changes in the fares payable by passengers on those services, in either case not later than the day on which the change takes effect.

Employment of administering agents

16

A travel concession authority may not employ as its agent for the purposes of the administration of reimbursement arrangements any person who is a holder of a PSV operator’s licence[^f00006].

General restriction on interference with the manner of providing services

17

Except where done to give effect to this Part, reimbursement arrangements may not include provisions compliance with which would require the operator to alter the manner in which that operator provides the services on which concessions are available.

Part 3 — Notices

Content of Notices

18

Notices under section 150(4) of the Act must contain the particulars set out in Schedule 1.

19

Notices under section 150(5) of the Act must contain the particulars set out in Schedule 2.

Service of notices

20

• (1) Notices required to be given under sections 150(4) and 150(5) of the Act must be—

• (a) delivered by hand;

• (b) sent by prepaid registered or recorded delivery post;

• (c) transmitted, subject to paragraph (2), in electronic format to the proper address of the intended recipient; or

• (d) given by any other means as may be agreed in writing between the person giving notice and the intended recipient.

• (2) Written notice may be transmitted in electronic format only where the intended recipient—

• (a) has indicated to the person giving notice, and has not subsequently withdrawn the indication, that receipt of notices in electronic format will be accepted; and

• (b) has provided the person giving notice with the fax number, e-mail address or other electronic address to which such notices may be sent.

• (3) Any notice sent by post in accordance with paragraph (1)(b) is to be deemed to be received when it ought in due course of post to be delivered at the address to which it is sent.

Part 4 — Periods of Notice

Prescribed notice period

21

For the purposes of section 150(5) of the Act, the period for giving prior notice of intention to apply to the Secretary of State must not be less than seven days.

Part 5 — Applications to the Secretary of State

Application

22

Regulations 23 to 32 apply to applications to the Secretary of State under section 150(3) of the Act for the modification of reimbursement arrangements.

Written Statements

23

• (1) The applicant must, with the notice required to be given under section 150(4) of the Act, submit to the Secretary of State a written statement of—

• (a) the grounds for the application; and

• (b) any reasons or other matters which that person considers to be relevant to the application.

• (2) The applicant must, at the same time as submitting the notice and statement to the Secretary of State, send a copy of that notice and of that statement to the travel concession authority.

24

• (1) The Secretary of State may request from the travel concession authority a written statement of any matters which it considers to be relevant to the application.

• (2) Subject to regulation 30, the travel concession authority must within 28 days of it having received a request under paragraph (1) submit the written statement to the Secretary of State.

• (3) At the same time as it submits the written statement to the Secretary of State, the travel concession authority must send a copy of it to the applicant.

25

• (1) Subject to regulation 30, the Secretary of State may, after the travel concession authority has submitted its written statement, request the applicant or the travel concession authority, or both of them, to submit to the Secretary of State such further written statements and documents as the Secretary of State may direct.

• (2) Any such further statements and documents must be submitted within such time as the Secretary of State may direct, but such time must not, unless the applicant and the travel concession authority otherwise agree, be less than 14 days commencing with the date of the Secretary of State’s request.

• (3) The applicant or the travel concession authority (as the case may be) submitting any further statement or document to the Secretary of State must at the same time send a copy of it to (as appropriate) the travel concession authority or the applicant.

Hearings and Procedure

26

• (1) The Secretary of State may, after the submission of the last written statement or document required under regulations 23 to 25, invite the applicant or the travel concession authority to appear before the Secretary of State.

• (2) When the Secretary of State makes an invitation under paragraph (1), the Secretary of State must also invite the applicant or the travel concession authority not invited under that sub-paragraph to be present.

• (3) The hearing pursuant to an invitation from the Secretary of State under this regulation must take place not less than 14 days after the date of that invitation (or, if invitations were given on separate dates, the date of the last of those invitations).

• (4) The applicant may appear in person or be represented by counsel, solicitor or any other person.

• (5) A travel concession authority may appear by any officer appointed for that purpose, or be represented by counsel, solicitor or any other person.

27

If the applicant or the travel concession authority fails—

• (a) to submit any statement or documents within the time specified by the Secretary of State; or

• (b) to appear before the Secretary of State in response to an invitation from the Secretary of State,

the Secretary of State may nevertheless proceed with the determination of the application.

28

• (1) Subject to regulation 27, at any hearing the Secretary of State must give to the applicant and the travel concession authority an opportunity—