jeffs post
labour hay the lords left the disabled down again
The Labour party has been heavily criticised for again failing to defend disabled people from attacks on their rights, after its peers refused to vote against “discriminatory” cuts to the government’s new disability benefit.
The House of Lords voted on Monday on a motion to “annul” new government regulations that will make it far harder for people with experience of severe mental distress to secure mobility support through personal independence payment (PIP).
The motion was proposed by the Liberal Democrat peer Baroness Bakewell, and was supported by three crossbench disabled peers, Baroness [Jane] Campbell, Lord [Colin] Low and Baroness [Tanni] Grey-Thompson.
But because Labour peers abstained, the government won the vote by 164 to 75.
Instead, Baroness Sherlock, Labour’s shadow work and pensions spokeswoman, proposed a weaker “motion of regret”, which was passed by 162 to 154 votes but left the regulations unaffected, although it did call on the government to review the impact of the changes within two years.
Despite Labour politicians celebrating the vote as a victory, the Department for Work and Pensions (DWP) told Disability News Service (DNS) yesterday (Wednesday) that it would ignore the Lords motion and would not carry out such a review.
Two days after the Lords debate, Labour’s shadow work and pensions secretary Debbie Abrahams attacked the government for refusing to allow a meaningful vote in the Commons on the new regulations, even though Labour’s peers had abstained on just such a vote only 48 hours earlier.
The government has scheduled a debate for 19 April, Abrahams said, but by then it will be too late to revoke the regulations, even if MPs vote against them.
Marie Rimmer, the newly-appointed shadow minister for disabled people, attended yesterday’s emergency Commons debate, which had been secured by Abrahams, but did not speak, although it is not yet clear why.
Rimmer had told DNS earlier that “responsibility for these Tory cuts lies exclusively with Theresa May’s government and her commitment to cut social security whilst cutting taxes for the richest.
“Baroness Sherlock clearly explained that the un-elected House of Lords does not possess the power to overturn secondary legislation which has been accepted by the House of Commons.”
Baroness Sherlock had actually told fellow peers on Monday that the Lords had overturned secondary legislation five times since 1945 and that such action should only be taken by peers in “exceptional circumstances”.
But Baroness Campbell said on Monday that the motion was an “exceptional circumstance”, and added: “I do not care that they have been debated and voted on only five times within a hundred years or whatever.
“I will gladly support it now.”
Disabled People Against Cuts (DPAC) said today that it “deplores” Labour’s actions in the Lords, as Baroness Bakewell’s motion “might have succeeded” and was “certainly the last chance to prevent this measure coming into force”.
DPAC said that by submitting the less powerful “regret motion”, Labour “effectively did the Tories’ work for them” by “spiking” Baroness Bakewell’s motion and replacing it with one that only asked for a review of the cut after two years.
The DPAC statement said: “It would have been better if Labour had done nothing. To later discover that Labour presented this shabby climbdown as a victory just added insult to injury for disabled people who will lose out through this PIP cut.
“And predictably the DWP have refused to hold a review, bringing a fitting end to this whole shameful saga.
“Labour in the Lords seemingly have no interest and no intention of fighting for disabled people’s rights.”
Labour has been repeatedly criticised for failing to stand up for disabled people’s rights over the last year.
In December, Baroness Campbell attacked Labour’s “lazy indifference” to disability equality, after it abstained on a vote in the Lords that would have forced bars, shops and restaurants to ensure their premises obeyed laws on accessibility when renewing their alcohol licences.
In November, Abrahams’ office invited a disabled people’s organisation to speak at the launch of her disability equality roadshow, and then withdrew the invitation after discovering that it wanted to talk about independent living.
And questions have been raised over whether shadow chancellor John McDonnell ever wrote a letter he publicly promised to send to Labour-run councils to ask them to ring-fence government money they receive to compensate for the closure of the Independent Living Fund.
The new PIP cuts came into force earlier this month and were brought in to reverse two upper tribunal rulings.
The government’s decision to reverse the rulings means an estimated 164,000 claimants will not now be eligible for the mobility component of the benefit or will receive a lower level than they would have received.
And an estimated 1,500 PIP claimants who need support to take medication and monitor a health condition will now either not be eligible for the PIP daily living payment or will receive a lower level.
Baroness Campbell told fellow peers on Monday that the “impact of panic attacks and anxiety, not to mention schizophrenia, dementia and autism, on being able to ‘plan and follow a journey’ are equally fraught, if not more so, with profound obstacles than the effects of visual or physical impairments”.
She described how a young woman who lived near her had experienced a severe anxiety attack on a train, which had led to the train stopping and the emergency services being called.
She told peers: “This expensive scenario could have been avoided if her PIP had not been reduced from the high to standard rate award a couple of months ago, allowing her to continue paying for a travel companion or use taxis.
“Her life has now been severely restricted.”
She added: “It is a fundamental tenet of the Equality Act that there shall be no hierarchy of disability: we define a disabled person as someone with a ‘mental or physical impairment’.
“We in this House have welcomed the prime minister’s commitment to parity of esteem between mental and physical health.
“The amended regulations, sadly, completely depart from these vital principles.
“They state, in effect, that disabled people may be equal but, just like in Orwell’s Animal Farm, some disabled people have become more equal than others.”
Baroness Campbell said the cumulative effect of cuts to social care support, independent living entitlements and welfare benefits had “taken its toll on disabled people” and that it was becoming “increasingly tougher for them to participate in society as active citizens”.
She said: “These changed regulations represent another departure and fly in the face of the prime minister’s ambition to create ‘a society that works for everyone’.”
Lord Low said the new regulations were “a clear breach of faith with the disability community”.
He said mental health and other disability charities had supported the introduction of PIP in 2012 after the government assured them that people with mental health problems would not be able to score points only “under the criterion which used the words ‘psychological distress'”.
He said: “The regulations are in clear breach, if not of a manifesto commitment on this occasion, then certainly of pledges given to those with mental health problems in 2012.”
He added: “I believe these regulations are trying to move the goalposts by excluding people who experience psychological distress from eligibility for the higher number of points necessary for the higher rate of mobility component.
“In doing so, they effectively discriminate against people with mental health problems.”
The Liberal Democrat disabled peer Baroness [Celia] Thomas, who speaks for her party on work and pensions issues in the Lords, said: “The disorders likely to be affected, according to the DWP, range from schizophrenia and autism to bipolar affective disorder and cognitive disorder.
“So much for parity of esteem between physical and mental health.”
She said: “Is it not yet another tightening of the screw around the whole independent living project, which is assailed on every side?
“These regulations should be set aside to await proper consultation.”
But one disabled peer, the Conservative Lord Shinkwin, said he supported the government’s position.
He said: “I believe the taxpayer does not have a problem with someone needing assistance as a result of difficulties in navigating – for example, if they are blind.
“Taxpayers surely understand that conditions such as visual impairments and learning disabilities, where these are severe and enduring, are much less likely to fluctuate than, for example, psychological distress.
“Indeed, it makes sense that people who cannot navigate due to a visual or cognitive impairment are likely to have a higher level of need and therefore face higher costs.”
He then appeared to suggest that he could not support providing the extra mobility benefits for people with severe mental distress until his local council stopped handing him parking tickets.
He complained that Lambeth council had been fining him for parking on yellow lines because he could not find anywhere to park after returning home late from working in the Lords, and that it had refused to provide him and other disabled people with their own parking bays.
He said: “This is just one example of why we urgently need to join the dots on disability if more disabled people are, as we all want, to live independently and work.
“Until we join those dots, I cannot in all honesty justify expecting taxpayers to be even more generous in helping to meet the extra costs of living with a disability, when the state itself imposes such indefensible extra costs on disabled people.”
Lord [Chris] Holmes, who in January ended his terms as disability commissioner of the Equality and Human Rights Commission, and another disabled Tory peer, also voted with the government against both motions, but did not speak in the debate.
The junior work and pensions minister Lord Henley insisted that the regulations were “not a policy change” and were just “bringing clarity” to the legislation.
He said: “It is inaccurate to describe this as a cut: it is merely the reassertion of the original policy intention.
“In PIP, we have ensured parity of treatment between mental and physical conditions.
“It achieves that by looking at the overall needs of an individual, not just what conditions they have.
“The whole point – if I can put it this way – of the PIP assessment is to distinguish between those differing levels of need. There is no discrimination in that.”
He repeated the government’s claim that there were more people with mental health conditions receiving the higher rates of both PIP components than the DLA equivalents, with 28 per cent of PIP recipients with a mental health condition receiving the enhanced rate mobility component, compared with 10 per cent of DLA recipients with a mental health condition who had received the higher rate DLA mobility component.
Posted by jeffrey davies on 30 March 2017
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effs post
Following a 13 month battle, the DWP have finally been forced to release secret documents illustrating the tactics they use to control and manipulate the media.
The documents reveal that the DWP monitors and analyses both mainstream and social media to reduce and manage negative coverage.
And even more worryingly, the documents show the DWP have managed to kill hundreds of stories by making sure that they are not reported on.
Almost every month since March 2014 the DWP communications team has produced “Media Evaluation Reports” detailing the ways and methods that the DWP controls negative stories about them in the media.
The DWP refused to release the reports since the Disability News Service (DNS) originally requested them in September 2015 stating they were “commercially sensitive”.
Finally after a struggle that took over a year, and a complaint by the DNS to the Information Commissioner’s Office (ICO) the documents have finally been released.
The reports show that on a nearly monthly basis from March 2014 to September 2015 the DWP “spiked” (persuaded journalists not to run) a total of 385 stories.
The highest month for spiked stories was June 2015 when the department managed to successfully kill a massive 46 negative stories.
spiked-june-2014The second highest was March 2014 when the DWP terminated 44 stories.
spiked-marchIn August 2015 the DWP “proactively briefed” the media about long-awaited statistics which showed the amount of ESA claimants who had died after being found fit for work, and successfully spiked coverage in a range of news outlets.
crisis-coms-esaThe reports confirm that the DWP considers the right-wing press to be supportive of them, and highlights cases where they have used them to “set the record straight” and further government policy.
dm-pensionsexpress-mothersThe reports show that the DWP closely monitors media output, and compiles a “sentiment of articles” chart every month to make sure that they receive positive coverage.
sentiments-of-articlesThe reports give valuable insight into a department that is unhealthily focused on the press coverage they receive.
The fact that they have managed to kill so many stories that they don’t approve of raises serious questions as to how the department is exercising its influence over the free press.
The role of journalism is to bring people the truth behind the DWP’s rhetoric, not to act as the chief mouthpiece for it.
Posted by jeffrey davies on 30 March 2017
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jeffs post
This is What Happened to Me on the Bus Yesterday
Woman was talking to me about cuts to public transport and the bus services. Then it took another turn. She said, everything is about money. But she said there are some people the government are not cutting. I said really? Who's that then?
She said well look at Disabled People no one is taking money from them and they are getting everything.
Well, that was like a red rag to a bull to me. I said Right, stop right there. I said for your information disabled people have been hit by the cuts to social care, community services and benefits 9 times more than any other group. I then said what's this crap saying no one is taking money from them?
She said, there are many who are not genuine and no one checks them
I said stop right there, said for your reference benefit fraud is between 0.5-0.7% very very very low and the disability assessment tests are incredibly stringent and you have to supply medical evidence with your paperwork
She said oh I didn't know that
I then said. Disabled people are going hungry facing destitution facing evictions being imprisoned at home due to lack of social care and community support.
I got. Oh
I said yes Oh. I said are you aware that disabled people are dying over the cuts, that they are taking their own lives due to them?
She said I don't believe you.
So I got out my phone called up a few links and told her to read them
She took a few minutes to do so and handed the phone back silently.
I then said the UK government is guilty of grave and systematic human rights violations towards disabled people I said how does that make you feel?
She said OMG I had no idea.
I said do you read a newspaper?
She said yes the Sun
I said then you are aware that when that vile rag prints crap like what you spouted earlier on using the words not genuine scroungers etc that paper and others like it are responsible for a serious ramping up of hate crime towards disabled people and that some people have died as a direct result of hate crime fuelled by the rhetoric the media use because the government spread their message in the media and the public such as you buy into it.
Said how do you feel now?
She said am so sorry I had no idea. I am really sorry.
I said do me a favour
She said what's that?
I said stop buying the Sun and spread the information to others on what I have just told you.
She nodded and said thank you for sharing that information with me.
She said I voted Tory at the last election. But after this conversation I certainly won't be doing so again
She said I won't be buying the Sun again either
Three passengers came up and shook my hand.
If I woke someone up to the harsh reality of what's happening to disabled people. It's one person who won't vote Tory again.
Paula Peters
Posted by jeffrey davies on 30 March 2017
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jeffs post
A homeless charity offered me food and board. But I had to work a tough 40-hour week for a meagre allowance – and others like me are being treated the same way.
There are many reasons why I became homeless, but no one was surprised it happened. I’m just another care leaver who lost control of their life. Almost every person I lived with in children’s homes and foster placements has since experienced mental health problems, stints in prison, and battles with drug and alcohol addiction. What would make me so special that I could avoid the inevitable breakdown?
I spent periods in a tent on a campsite near Saddleworth Moor, where I was woken up every night by my neighbour, a cantankerous Yorkshireman who would liberate the grievances he had been bottling up all day in a series of piercing screams.
The local housing advice service was no help. I was told that to be considered a priority need, I had to demonstrate that I was more vulnerable than my homeless counterparts. As one adviser put it: “I have to establish that you would be worse off than me, if I were homeless.” It may interest people that local councils are now running a misery contest for housing, a sort of X Factor for the destitute. Maybe my audition would have gone better if I’d had a few more missing teeth, and wet myself while singing Oom-Pah-Pah.
And then I befriended a resident of a residential charity for the homeless. He was far more helpful than the housing advisers, and managed to organise a place for me at the charity.
When I entered its walls, which were inside a converted factory, the place immediately struck me as having similarities with a Victorian workhouse. I was told by the “community leader” that I would receive basic subsistence: a room, food, clothing and a modest weekly allowance, in exchange for 40 hours’ labour.
The word “workhouse” conjures up images of Oliver Twist, and of bleak Victorian institutions populated by bedraggled paupers forced into backbreaking labour in exchange for meagre slops of porridge. At the charity home we were not expected to pick oakum or break boulders, but the work was hard and the returns were meagre.
Part of my job involved delivering furniture. I spent day after day lifting heavy items such as wardrobes and three-piece suites, sometimes up and down several flights of stairs. The work is described as voluntary by the charity, but in reality neither I nor any of my fellow inmates had anywhere else to go, and so had little choice but to do it.
The charity describes itself as a “working community”. But as far as I was concerned this was a workhouse in all but name: a civil prison, and a punishment for poverty. How do such charities manage to require their residents to work up to 40 hours a week without a wage, paying them only a small allowance for food and accommodation?
In 1999 the New Labour government exempted charities and other institutions from paying workers the national minimum wage if prior to entering a work scheme they were homeless or residing in a homeless hostel. There is perhaps no better demonstration that this country is yet to shake off punitive Victorian attitudes towards the “undeserving” poor.
Posted by jeffrey davies [86.17.83.77] on 29 March 2017
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jeffs post
A panel of upper tribunal judges has made a decision relating to safety and supervision that Benefits and Work believes could allow many claimants with conditions such as epilepsy, heart disease, dementia and mental health conditions to receive the enhanced rate of the daily living component.
We also consider it will allow many claimants to receive the enhanced rate of the mobility component.
This will include some claimants who lost out due to a recent change in the law relating to planning and following journeys.
Be aware
This is very new case law, although it appears to take us back to very similar case law for disability living allowance (DLA).
We are setting out arguments below that we think are valid and that will allow thousands more claimants to be awarded PIP.
But we cannot guarantee in any way that they will be successful. All you can do is put forward the best evidence you can to support these points and, if you are not happy with the decision, consider challenging it by mandatory reconsideration and appeal.
And, as always, be aware that if you challenge a decision because you consider the award is too low, there is always a risk – however small - that you will lose the award you have.
Fifty percent rule
In CPIP/1599/2016 a panel of Upper Tribunal judges looked at the issues of safety and supervision, after conflicting decisions were made by individual upper tribunal judges.
Until now, the DWP have argued that a claimant can only score points for being unsafe if harm is likely to occur on more than 50% of the occasions on which they attempt an activity.
A claimant who has epilepsy which causes seizures once or twice a week, for example, may not attempt to cook unsupervised because they know that if they have a seizure they could come to serious harm
However, the DWP have been refusing to award points to claimants with epilepsy on these grounds, unless the claimant cannot show that it is ‘more likely than not’ that they will have a seizure on any given occasion when they prepare food.
This is an almost impossibly harsh test, as is shown by the thousands of claimants with epilepsy who are having their payments removed entirely on being moved from DLA to PIP.
Upper Tribunal disagrees
On 9th March, however, the panel of Upper Tribunal judges rejected the DWP’s 50% rule.
Instead, the panel held that the decision maker should look at whether there is a real possibility that harm might occur and also at how great the harm might be. The greater the potential harm, the less likely it needs to be that it would happen on any specific occasion.
At paragraph 56, the tribunal held that:
“An assessment that an activity cannot be carried out safely does not require that the occurrence of harm is “more likely than not”. In assessing whether a person can carry out an activity safely, a tribunal must consider whether there is a real possibility that cannot be ignored of harm occurring, having regard to the nature and gravity of the feared harm in the particular case. It follows that both the likelihood of the harm occurring and the severity of the consequences are relevant. The same approach applies to the assessment of a need for supervision.”
For example, someone who is deaf may be unable to hear a smoke alarm if a fire starts when they are bathing.
The risk of a fire starting on any given occasion is very small, but also very real. And the harm that might occur if the claimant was caught in the bathroom during a fire is potentially fatal. So, the risk is small but the potential harm is very great. Therefore the claimant cannot carry out the activity of washing and bathing safely unless they have supervision.
The same logic will also apply to people who have epileptic seizures and need someone to keep them safe if they do.
Standard daily living for epilepsy
Clearly activities like bathing and preparing food carry particular risks in the event of a seizure.
But on their own, they are not enough to allow a claimant to score the 8 points needed for even the standard award of the daily living component. The points for these two activities would be just six:
1 e. Needs supervision or assistance to either prepare or cook a simple meal. 4 points.
4 c. Needs supervision or prompting to be able to wash or bathe. 2 points.
But the panel made another extremely important finding.
They ruled that where a claimant is at risk all the time, even if they are just sitting in a chair doing nothing, then they may also be at risk when carrying out PIP activities that do not carry any additional likelihood of harm.
At paragraph 66, the Upper Tribunal stated that they agreed with Judge Jacobs when he found the following:
“18. As I understand it, the judge is asking whether the risk that can be taken into account for preparing food or planning and following a journey must be a risk specifically related to that activity. The answer is: no. A risk that gives rise to a need for supervision need not be a risk that is unique to a particular activity or to the activities in Schedule 1 generally. It is sufficient if it is a general risk, even one that applies when the claimant is doing nothing, provided that the requirements of a particular descriptor are satisfied.
19. Take preparing food, Activity 1. The tribunal found that the claimant satisfied descriptor e, which carries 4 points:
Needs supervision or assistance to either prepare or cook a simple meal.
The issue for the tribunal was whether the claimant had a need for supervision when cooking. If he did, it did not matter whether that need was specifically related to that activity or was a general one that would affect other activities and even exist when the claimant was doing nothing at all. The descriptor was satisfied. This is so whether the other activities affected are within the scope of personal independence payment or not. Many conditions have an effect beyond the particular activities in Schedule 1 and, perhaps, generally. It would be anomalous to exclude them from the scope of personal independence payment.
20. The same applies for all activities, including planning and following journeys.”:
So, a claimant may not be at any additional risk of harm if they have a seizure when using the toilet or taking medication, for example. But, because they are at risk whatever they are doing, then we would argue that they still reasonably require supervision during these activities because they cannot do them safely without supervision.
This opens up the possibility of scoring further points for supervision:
2 b. (ii) [Needs] supervision to be able to take nutrition; 2 points.
3 b (ii) [Needs] supervision, prompting or assistance to be able to manage medication. 1 point.
5 c. Needs supervision or prompting to be able to manage toilet needs. 2 points.
If they all apply, this would allow a claimant with epilepsy to score 11 points in total for supervision, enough for an award of the standard rate of PIP daily living.
Enhanced daily living for epilepsy
But, we believe, there is more.
Where the descriptors do not refer to supervision, then it can be argued instead, that the claimant is unable to carry out the activity safely at all. So, most obviously:
6 f. Cannot dress or undress at all. 8 points.
Some of the other daily living activities, such as reading and budgeting, may be harder to argue, though logically they should also apply.
But even without the other activities, this allows a total of 19 points, well above the threshold of 12 points needed to get an award of the enhanced rate for daily living.
Daily living for other conditions
The same logic should apply to some claimants with learning difficulties, dementia, heart problems or mental health conditions, amongst others
So, someone at risk of serious self-harm or at risk of committing suicide might well qualify for the enhanced rate of the daily living component, if they need someone to supervise them to keep them safe.
Someone with learning difficulties which leads to a lack of awareness of danger may also qualify.
Mobility component for epilepsy
The panel also held that the same arguments apply to the Planning and following journeys mobility activity, though not to the Moving around activity.
So, a claimant who is at risk of seizures should meet mobility descriptor:
1 f. For reasons other than psychological distress, cannot follow the route of a familiar journey without another person, an assistance dog or an orientation aid. 12 points.
However, it’s important to be aware that this decision was made before the government changed the law in relation to Planning and following journeys to specifically rule out psychological distress for descriptors c) d) and f) of this activity.
So it will be vital to stress the risk to the claimant, rather than their fear.
A claimant with epilepsy may become overwhelmingly anxious at the thought of undertaking even a familiar journey alone, because of fears that they might have a seizure. This, however, would not allow them to score more than 2 points for this activity.
But, regardless of their fear, if there is a need for supervision to reduce the risk of harm if they do have a seizure when following the route of a familiar journey, then that should allow them to receive the enhanced rate of the mobility component.
Mobility component for other conditions
As with the daily living component, the same logic should apply to some claimants with learning difficulties, dementia, heart problems.
So, someone at risk of serious self-harm or at risk of committing suicide might well qualify for the enhanced rate of the daily living component if they need someone to supervise them to keep them safe.
Mobility component for mental health
Whilst this decision may allow many claimants with physical health conditions and learning difficulties to get the enhanced rate of the mobility component, it may be of less value for claimants who, for example, experience panic attacks.
This is because of the recent change in the law which adds the words ‘For reasons other than psychological distress’ to descriptors c), d) and f).
It will be necessary to show that the claimant would be at risk of harm, rather than simply distressed, in order to score points for descriptors that preclude psychological distress.
Which decisions will be affected?
Claims made on or after 9 March and review decision made on or after 9 March should be subject to this new case law.
Will the DWP appeal this case?
The DWP may very well appeal, but there’s a very good chance they will lose.
If you challenge a decision not to award you PIP when you think this case law applies, it may well be that your case will be stayed until any DWP appeal has been heard.
Will the government just change the law?
Quite possibly. But changes to the law are very rarely retrospective. So, unless and until they change the law, there is a window of opportunity to make claims on this basis, always provided the DWP don’t win an appeal.
How do I include this in my claim?
We’re updating our PIP guide right now to include information on how to add this to your PIP 2 form. Check back on this page to find out when the up the updated guide is available
You can download the full decision from this page
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Jeffs post
oh dear when are government going to see sense Union says Hong Kong metro operator will ‘make a killing at taxpayers’ expense’ after surprise announcement by UK government.
The UK government has handed a Chinese state transport and property company a seven-year deal to run one of the Britain’s biggest rail franchises in a controversial deal that brings together train and track operations.
MTR, which operates the Hong Kong metro, will run South West Trains (SWT) with FirstGroup from August, on a promise of delivering faster and more frequent services.
First MTR will take over from Stagecoach, which runs SWT services across south-east England to and from London Waterloo.
The Rail, Maritime and Transport (RMT) union said the Chinese company was set to make “a killing at the British taxpayers’ expense”.
But the government said the agreement would mean better services for passengers and heralded a new era in rail transport by uniting train and track operations.
The deal is the first since the government said it planned to bring together train and track operations.
The transport secretary, Chris Grayling, said: “First MTR South Western Trains will deliver the improvements that people tell us they want right across the South Western franchise area, from Bristol and Exeter, to Southampton and Portsmouth, to Reading, Windsor and London.
“We are delivering the biggest rail modernisation programme for over a century and this franchise will deliver real changes for passengers, who can look forward to modern trains, faster journeys and a more reliable service.”
Mick Cash, general secretary of the RMT, pointed out that the deal would mean about 75% of UK rail routes would soon be operated by state-owned foreign companies,
Posted by jeffrey davies on 27 March 2017
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