Office of Rail and Road

5. Mr U complains the ORR failed to thoroughly and impartially investigate his concerns about a local level crossing.

6. He said Network Rail’s risk assessments in 2021 and 2023 identified safety improvements at the level crossing which it failed to implement.

7. When he raised this issue with the ORR, he said it provided amateurish and unverified answers which demonstrated it did not employ a suitably trained, knowledgeable and impartial party to conduct its investigation. He adds that the ORR also ignored its statutory duty to enforce safety improvements.

8. Mr U said the level crossing continues to cause considerable disruption and hardship owing to the length of time the barriers are in the down position, which blocks the road.

9. He said this has also impacted upon general highway traffic in the area and emergency services using the road. He said the ORR’s flawed investigation into this matter caused ongoing and unnecessary frustration.

10. Mr U wants the ORR to reinvestigate his concerns and look again at its decision.

11. Mr U contacted the ORR in January 2024 to raise concerns about the safety of pedestrians using a local level crossing. This followed contact with Network Rail in late 2023 which failed to resolve his concerns.

12. Network rail is the owner and manager of most of Britain’s railway infrastructure. It is responsible for maintaining, operating and developing the network. The ORR is the independent safety regulator for Britain’s railways.

13. Mr U is concerned that due to the prolonged barrier-down times (BDT) at the level crossing, both pedestrians and road users are subject to frequent and lengthy delays. This is because both pedestrian pathways and a road cross over the rail line at this crossing.

14. When the barrier is down, both pedestrians and road traffic must wait until the barrier raises before they can cross. BDT relates to the length of time the train crossing’s protective barriers are in the downward position.

15. Mr U said the prolonged BDT also led to misuse of the level crossing by both pedestrians and road users in their attempt to avoid delays.

16. Through the course of 2024 Mr U’s enquiries with the ORR turned into a formal complaint as he was not convinced it had thoroughly investigated his concerns.

17. The ORR issued its final response in September 2024.

20. Mr U tells us the ORR did not thoroughly investigate his concerns about his local level crossing. He said it did not employ a suitably trained, knowledgeable or impartial party to conduct its investigation.

21. The ORR said it investigated Mr U’s complaint in line with relevant guidance, and its staff had the appropriate knowledge and impartiality to carry out this work.

22. It said the Chief Inspector of Railways investigated his concerns and this individual is the most senior official responsible for overseeing rail safety and is fully qualified to discharge these duties.

23. We also understand the ORR carried out an onsite inspection of Mr U’s local level crossing in August 2024 to assist in its investigation.

24. ORR complaint guidance sets out how it will handle enquiries and complaints from the public.

25. It describes how different kinds of enquiries or complaints (i.e. general enquiries, consumer policy complaints or Network Rail regulation complaints, for example) should be handled in terms of which staff are best placed to deal with them and general timescales for response.

26. ORR complaint guidance also says, ‘Whilst the guidance talks about the Principal Inspector as the main complaint investigator, the enquiries may be delegated to an experienced admin, an Inspector Assistant or, where absolutely necessary, an Inspector.’

27. Our Principles say public bodies should provide effective services with appropriately trained and competent staff.

28. Our complaint standards say public bodies should investigate complaints thoroughly and fairly, basing their decisions on the available facts and evidence.

29. It is important to set out that our consideration will not replace the ORR’s decision with our own. Neither is it for our Office to give a view on what improvements should be implemented at Mr U’s local level crossing.

30. Our role is to consider whether the ORR investigated Mr U’s complaint and responded in line with applicable guidance and standards.

31. Key to Mr U’s complaint is his concern that Network Rail’s risk assessments in September 2021 identified safety improvements at the level crossing which it failed to implement.

32. Mr U said when he raised this with the ORR it provided answers which he felt were inaccurate and had not been fully thought out. For this reason, he said he is unable to accept the ORR’s decision.

33. As part of our primary investigation, we reviewed the correspondence between Mr U and the ORR.

34. We will not reiterate every concern Mr U raised with the ORR nor detail every part of the ORR’s responses. We will instead summarise the correspondence between them.

35. This will allow us to explore in more detail whether the ORR appropriately investigated and responded to Mr U’s concerns.

36. Mr U initially raised concerns with the ORR about his local level crossing in January 2024. This followed his contact with Network Rail.

37. He expressed that he had ongoing concerns about the safety of pedestrians using the level crossing as there were no means for those on foot to cross when the barriers were down.

38. He noted the BDT could be as much as 17 minutes which created instances of pedestrians misusing the crossing. He also referred to a September 2021 Network Rail risk assessment of the crossing which described the BDT as ‘excessive’.

39. He said this excessive BDT created conditions which were highly likely to cause its misuse.

40. He said the risk assessment suggested some improvements which would mitigate risk posed to the public. Those improvements included an ‘operations or engineering’ solution to address the BDT and the provision of a footbridge as an alternative means for pedestrians to cross the railway.

41. Mr U said in the years since the September 2021 risk assessment he saw no reduction in the BDT and no provision of a footbridge.

42. He asked the ORR to ensure Network Rail implemented the actions set out in its risk assessment.

43. The ORR said it did not consider that there was a problem with the safety of pedestrians using the level crossing, unless they actively misuse it.

44. It said CCTV protected the crossing and signallers were able to raise and lower the barriers. It said this system was safer than the ‘automatic half barrier crossing’ it replaced.

45. It is worth noting here Mr U’s local level crossing is currently a ‘full barrier’ system.

46. An automatic half barrier crossing blocks oncoming traffic while leaving the exit clear for vehicles already crossing. A full barrier system means the barrier arms will lower and completely restrict road traffic (and pedestrians) from entering the crossing.

47. The ORR noted pedestrian misuse of the previous set-up was likely a factor in the decision to upgrade its protection with CCTV.

48. It recognised the delays caused by the crossing’s BDT. It said while it was unable to enforce measures, such as building a footbridge, it would ask Network Rail to explain its position in more detail and what it was doing to improve the situation.

49. It further responded to Mr U to confirm it received information from Network Rail to show the upgrade (from automatic half barrier to CCTV equipped crossing) had lessened BDT.

50. Mr U told the ORR its recent email had not answered the question it said it would put to Network Rail. He added it also did not address the excessive BDT or the inability for pedestrians to cross the railway while the barriers were down.

51. He again set out the risk posed to pedestrians by excessive BDT, which was set out in Network Rail’s September 2021 risk assessment, required improvement by either an ‘operations or engineering solution’ or the provision of a footbridge.

52. Mr U urged the ORR to question Network Rail to understand why it had not implemented the findings of its own risk assessment and ‘press it to take immediate mitigating action…’ 53. The ORR said the current crossing system (CCTV equipped crossing with full barrier) offered a very high degree of safety, short of constructing a full road bridge. It explained the provision of a road bridge was very expensive and was not feasible where there were neighbouring properties.

54. It acknowledged the BDT was an inconvenience, but it did not see this inconvenience was to an ‘unusual degree’ when compared to numerous other locations with this type of crossing.

55. It added that due to the very long stopping distances of heavy trains, barriers needed to be lowered well in advance of their arrival.

56. The ORR said as a safety regulator, it considered the crossing to be safe. It noted it had not found any breaches of the rules and therefore did not see it needed to take further action.

57. Mr U questioned the ORR’s view that the crossing was safe and supplied dashcam footage which he said showed an ambulance under ‘blue light conditions’ held at the crossing for nearly five minutes.

58. He also supplied photographs of motorists overtaking a bin lorry at the crossing when it was carrying out its refuse collection duties for the neighbouring properties.

59. He explained Network Rail’s risk assessment had not identified the likelihood of overtaking vehicles entering the crossing on the other side of the road. He said this presented additional risk which should be taken into account.

60. The ORR said it was not clear from Mr U’s evidence whether the ambulance service had contacted the railway. The ORR had previously set out that this is something the ambulance service can do in an emergency.

61. It also said any issues with the bin lorry, and how motorists reacted to it, would be something the local council would need to look into. It said it had nothing more to add.

62. Mr U lodged a formal complaint with the ORR. He raised several concerns about the BDT and the lack of clarity from the ORR in terms of why it had not yet enforced the improvements set out in Network Rail’s September 2021 risk assessment.

63. The ORR’s Director of Railway Safety and HM Chief Inspector of Railways (the director) responded.

64. The director’s response attempted to address Mr U’s key concerns around BDT and the ORR’s alleged failure to pursue Network Rail for improvements. We note much of the detail in the director’s response came from its onsite inspection of Mr U’s crossing in August 2024.

65. The director acknowledged Network Rail’s September 2021 risk assessment found BDT was excessive but noted this was the judgement of its risk assessor.

66. The director said the ORR was not ‘bound’ to follow Network Rail’s risk assessments. It said the ORR inspectors who considered this matter reached their conclusions based on their wider knowledge of level crossings. It said the BDT was not excessive for this type of crossing.

67. It said it reviewed individual BDTs, as opposed to the average measure it had used earlier in its correspondence, and found 95% of those individual BDTs were justifiable. It said the remaining 5% of those BDTs were potentially excessive.

68. It said the signallers who operated the crossing should do their best to avoid unnecessary BDTs but recognised they could make mistakes. It concluded, overall, that the BDTs were not excessive to the extent that it would justify regulatory action.

69. The ORR said there was no legal obligation to implement improvement measures identified in Network Rail’s September 2021 risk assessment. It said only measures specifically required under legislation, or deemed ‘reasonably practicable’, would need implementation.

70. It said because BDT at the crossing was not excessive when compared to other similar crossings and it had signs, signals and barriers to protect pedestrians from trains, it could not insist Network Rail installed a footbridge.

71. Mr U approached our Office following the director’s response as he remained dissatisfied.

72. His paperwork clearly sets out he remained unhappy with the ORR’s investigation. He said the ORR did not conduct a balanced review of his concerns.

73. Having carefully reviewed Mr U’s paperwork we can see no evidence to indicate the ORR failed to act in line with applicable guidance and standards.

74. It attempted to address Mr U’s concerns within appropriate timeframes, and, where required, it escalated his complaint to a senior member of staff.

75. We recognise Mr U is concerned the ORR’s complaint handlers, and the director were not suitably trained, knowledgeable or impartial. We have seen no credible evidence to suggest this is the case.

76. Alongside this, we acknowledge Mr U’s criticism of the ORR’s decision making but we do not see this clearly indicates the ORR failed to adequately investigate his concerns.

77. Rather, we see there is a fundamental disagreement between the two parties around the safety and efficiency of the level crossing. A disagreement does not constitute maladministration.

78. The ORR said its site inspection in August 2024 confirmed the crossing operates within accepted safety standards and that risks to pedestrians and vehicles are adequately controlled through barriers, alarms and signage. It said while a footbridge was desirable, it is not mandated under current health and safety obligations.

79. It is important to note here that Network Rail’s December 2023 risk assessment said a footbridge, ‘would require an appropriate amount of land and may prove cost prohibitive when measured against pedestrian use and safety standards.’

80. This more recent risk assessment does not, therefore, appear to take the view that a footbridge is so essential and questions its viability. It appears to cast doubt on how many pedestrians would use the bridge and what additional safety it would therefore provide.

81. This appears to contrast with its earlier September 2021 risk assessment which appears to have taken the view that a footbridge would assist with the ‘excessive’ BDT by allowing pedestrians to cross while the barriers were down.

82. The contrast between the two risk assessments may be because Network Rail’s December 2023 risk assessment found BDTs had improved.

83. We acknowledge Network Rail’s December 2023 risk assessment states under, ‘option review panel decisions’ that, ‘installation of a suitable footbridge’ was submitted to the Optioneering Panel which convened on 27 March 2024.

84. We understand the Optioneering Panel will consider whether a suggested improvement is viable and, if so, will further explore whether such an improvement is possible with other Network Rail partners.

85. The Optioneering Panel accepted the suggestion of a footbridge and noted it would be ‘pursued with the housing developers as part of the wider developments’ in Mr U’s local area.

86. We understand there are other partners who would need to co-fund this footbridge, so its implementation would depend upon what support Network Rail received.

87. It is important to note, however, as we have described above, the implementation of any footbridge at Mr U’s local level crossing was not described in Network Rail’s more recent risk assessment as mitigation against any excessive BDT.

88. Instead, it appears Network Rail considers this improvement desirable to improve the overall use and accessibility of the local level crossing.

89. Having taken all the above into consideration, we do not see the ORR did anything wrong when it told Mr U it could not force Network Rail to implement safety improvements at the crossing, like the footbridge.

90. We think the ORR clearly set out the level crossing did not warrant such an improvement when compared to the risk mitigation already in place. We think Network Rail’s more recent December 2023 risk assessment supports the ORR’s position.

91. Mr U said the ORR refused to take regulatory action against Network Rail because it could not see BDTs were excessive based on its, ‘wider knowledge of level crossings.’

92. Mr U said this contrasts with Network Rail’s own September 2021 risk assessment, which found the opposite.

93. He noted Network Rail’s September 2021 risk assessment said barrier down times were ‘deemed excessive’ with some trains not arriving until 4-5 minutes after the crossing warning sequence is operated, compared to around 2 minutes for other MCB (manual controlled barrier) CCTV crossings.’

94. As mentioned earlier in our statement, Network Rail’s risk assessment published in December 2023 reported BDTs had improved.

95. We note Network Rail collated the data which informed this risk assessment in November 2023 and is likely the same data the ORR’s director reviewed during their site inspection in August 2024.

96. In any event, we are satisfied the BDT data the ORR reviewed in August 2024 was either from the Network Rail risk assessment which took place in November 2023 (and reported in December 2023) or is more recent.

97. The November 2023 data indicated an improvement in BDT, so it is possible that any newer data may have mirrored it or further improved upon it.

98. Based on the above, we do not see it is proportionate to obtain the ORR’s BDT data as there is nothing to suggests this data is inaccurate.

99. We are therefore satisfied Network Rail’s September 2021 risk assessment does not serve to undermine the ORR’s position.

100. Mr U also cites a recent decision by the Secretary of State for Transport (SOS). He said the SOS refused to convert another level crossing from an automatic half barrier crossing to a manually controlled barrier with CCTV system (like his local level crossing) because of the increased BDT this would likely cause.

101. He said a key factor in this decision making was that the level crossing did not have a footbridge, and the increased BDT may mean potential railway users would be dissuaded from using the railway. A consequence of this could be that people were more inclined to use their motor vehicles.

102. We recognise Mr U is saying the SOS recognised proposed changes to an unrelated level crossing should not go ahead for the same reasons he has cited in his complaint about his level crossing.

103. Mr U essentially said his local level crossing was a full barrier manually controlled CCTV crossing and this had impacted his local area in the way the SOS had described.

104. It is not clear whether those in the ORR who investigated Mr U’s complaint were aware of the SOS’s recent decision. We do not see it is likely to have been of significant consequence to its decision making, however.

105. While on face value it appears that there are some broad similarities between the two stations, we must appreciate they are not the same.

106. Each will have their own set of circumstances in terms of local geography, risk assessment information, differing levels of road vehicle and pedestrian traffic and differing levels of rail users alongside the frequency of rail traffic itself.

107. In our view, it is hard to draw a robust connection between the two stations to the extent that it would support Mr U’s allegation that the ORR had not adequately investigated his complaint or had reached flawed conclusions.

108. We are satisfied the ORR clearly set out its rationale for why it decided to take no further action. This rationale is supported by the involvement of senior members of staff who conducted a site visit. This site visit carefully considered Mr U’s concerns at their source and also included recent Network Rail data to inform their thinking.

109. Overall, we can see the ORR appropriately investigated and responded to Mr U’s complaint in line with its complaint guidance, our Principles and our complaint standards. For this reason, we have decided to take no further action in Mr U’s complaint.

110. We recognise Mr U steadfastly believes the ORR should pursue Network Rail to make improvements at his local level crossing. We acknowledge our view that the ORR acted in line with applicable guidance and standards will therefore likely come as a disappointment.

111. While we cannot see the ORR has done anything wrong, we hope Mr U can see we have carefully considered his complaint and that we have clearly set out our thinking in this statement.

1. We have carefully considered Mr U’s complaint about the DWP. We appreciate this complaint is very important to Mr U.

2. We can see the ORR appropriately investigated and responded to Mr U’s concerns in line with applicable guidance and standards.

3. For this reason, we have decided to take no further action in Mr U’s complaint.

4. We appreciate Mr U has devoted a great deal of time and attention in raising and pursuing his complaint and our decision will likely come as a disappointment. We hope our statement clearly sets out how we reached our decision, and he finds our explanations helpful.