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Traffic Commissioner Highlights Abuse of Section-19 Permits

In a Section 19 Public Inquiry hearing heard last year (2023) the Traffic Commissioner highlighted again the importance of permit operators ensuring that their vehicles allow passengers and other road users to be safe, and that if an operator’s vehicles fall below the required safety standards then there is a risk of their permits being revoked (permits were in fact revoked in this case).

What Does Section 19 Refer to?

Section 19 is the legislative provision in the Transport Act 1985 that provides for the use of Public Service Vehicles (PSVs) as they are defined in the Public Passenger Vehicles Act 1981, using a “Section 19 Permit” when otherwise an operator’s licence (whether Restricted or National) would be required.  On one view the obligations imposed upon operators that use vehicles under such a Permit are less onerous than the obligations imposed upon operator’s who use vehicles under an operator’s licence.

The PSVs operated under a Section 19 Permit must be used on a “not for profit” basis which requires careful analysis in each individual case.  Section 19 permits are frequently granted to charitable organisations that specialise in the provision of services to specific groups (schools being one example) where the transport services are used in connection with education, religion, social welfare or recreational activity that will benefit the community.

North Dorset Community Accessible Transport (NORDCAT) Case:

NORDCAT was involved in a home-to-school (H2S) contract which it serviced using a fleet of PSVs operated under the authority of permits (in doing so it avoided the need to obtain an operator’s licence).

The Public Inquiry followed a DVSA maintenance investigation which revealed serious shortcomings in the maintenance regime which gave rise to obvious safety concerns in relation to the roadworthiness of the vehicles being used.  There was a high MOT failure rate and a range of other problems that were revealed by the maintenance documentation that NORDCAT provided to the Traffic Commissioner, but seemingly a failure to understand the significance of such (either that, or those responsible for the transport services did understand the issues but failed for whatever reason to do anything about them).

In addition to the maintenance issues the Traffic Commissioner also carried out an analysis of the commercial arrangements relevant to the issue of the permits to NORDCAT.  He found shortcomings here too.

The Traffic Commissioner stated that permit operators need to consider each one of the purposes for which they are providing road passenger transport services to ensure that they satisfy the legislative requirements that they must meet in order to be eligible to run vehicles under permits (rather than needing an operator’s licence).  In summarising his approach to the regulation of permit operations the Traffic Commissioner stated “This is a permit operation.  That does not mean that the passengers and other road users do not deserve to be safe.  I cannot apply a lower standard for maintenance than I would for a PSV operation“.

Community Transport Association Response:

Following the Public Inquiry, the Community Transport Association has reminded members and operators to prioritise “robust” maintenance programmes to ensure the safety and compliance of their vehicles on the road.

Are you Running Correctly under a Section 19 Permit?

This case highlights an area of the regulatory regime that is frequently abused, either intentionally or because the people involved do not understand what it is that they are required to do in order to ensure that their vehicles are operated lawfully and safely.

If you would like advice on whether you are eligible for a Section 19 Permit or if you hold one and wish to ensure that this is the correct permit/licence for your use, then get in touch now.  Pellys Transport & Regulatory Law is an expert in this area and can ensure that you and your organisation are running compliantly.  Call us on 01279 818280 or email by clicking here.  We are here to help.

(C) Richard Pelly, January 2024

Enero Logistics Ltd – the Law for Operators on Agency Drivers

At one time or another, many transport companies need to rely on the services provided by agency drivers, to best cope with sudden fluctuations in demand or to fill driver shortages.  This allows for the undisrupted continuation of services by these organisations.

However, there are important laws and regulations that operators must abide by when relying on the services provided by agency drivers.

Agency Drivers and The Law

In the recent case of Enero Logistics Ltd the Senior Traffic Commissioner took action against an operator who was using so called agency HGV drivers.  This is an important decision for any transport operation to be aware of as it reiterates the importance of operators complying with their legal obligations in relation to those who work for them.

The Agency Workers Directive 2010 aims to ensure the protection of temporary agency workers and ensures equal treatment of agency workers.

These regulations provide that after a qualifying period of 12 weeks, the basic working and employment conditions of temporary agency workers must at least be as beneficial as those that would apply if they had been recruited directly.

What Were Enero Logistics Ltd Doing?

Enero Logistics Ltd (Enero) was called to a Public Inquiry following a bridge strike.  At the inquiry it was necessary to investigate how Enero employed and controlled its drivers.  The press release issued by the Office of the Traffic Commissioner about the Enero case included the following warning:

“In his decision, the Traffic Commissioner noted that some operators still wrongly believe that anti-avoidance legislation does not apply and that HMRC cannot pursue workers, agents and the operator.  Failure to comply with legal requirements can undermine the ability to hold an operator’s licence.  The publicly available guidance on the GOV.UK website advises that a person is an agency worker if they have a contract with an agency but work temporarily for a hirer.  Even workers doing occasional work for a specific business (where the worker has to agree to terms & conditions to obtain the work, where the business provides the materials, tools or equipment) can be subject to the deduction of tax and National Insurance contributions from their wages.  Legitimate agency arrangements are subject to specific legislation requiring the agency to supply the worker with information including the start date and how long the assignment is likely to be for.  Agency arrangements will be scrutinised by Traffic Commissioners.”

In this case the agency agreement was found to be a “sham”.

What You Need to do as an Operator

If you currently have agency drivers within your organisation, it is crucial that you check what arrangements you currently have in place and ensure that your organisation is compliant.

Alternatively, if you do not currently have agency drivers working within your organisation, it makes sense to ensure that you are clear on what you are legally required to do, in case you ever do need to rely on the services of an agency driver in the future.

If you have any questions regarding agency drivers or more generally about your company as an operator, then please click here to send us an email, or call us directly on 01279 818280.  We are here to help.

Are you Up To Date with the Guidance on Right to Work Checks?

Whether you are for or against ‘legal’ immigration, the issue of illegal immigration is most definitely high on the UK government’s agenda.

In August 2023, it was announced that from 2024 the penalties imposed on employers who are found to be employing people who do not have a right to work in the UK would be tripled, in an effort to curb this “black-market” practice and raise the disincentives for people to come to the UK to live and work illegally.

Currently in order to have a legal right to work in the UK you must be a “…British or Irish citizen or have a UK immigration status which permits you to undertake employment”.  In some cases the right to work will be subject to conditions such as the number of hours per week that you may work.  The role of employers in monitoring the right to work and any applicable conditions is a crucial one.  Every employer (no matter their size or organisation) has a duty to prevent illegal working.  This translates to employers having to carry out checks on their employees to ensure that they have the right to work, i.e., if the person is not a citizen of the UK or Ireland, they must have the appropriate visas in place for the role that they are being employed for.  It is unlawful to employ someone who does not have the appropriate right or who is in breach of the terms of their visa, and in such cases the employer could face sanctions, including criminal ones.

Tough Penalties for Employers who Breach Guidance:

The ability to work illegally is a key driver of illegal migration, according to the government’s guidance.  It leaves people vulnerable to exploitation and results in unscrupulous employers undercutting compliant businesses as well as negatively impacting on the wages of lawful workers.  The practice is linked to labour market abuses such as tax evasion, breach of national minimum wage and exploitative working conditions, including modern slavery in the most serious of cases.

The government is following through with its promise to curb illegal immigration with a raft of increased penalties for employers who fall foul of the guidance.  Where an employer is found to have employed someone without the right to work, the Secretary of State (i.e. the Home Office) will issue the employer with a notice of liability to pay a civil penalty which from 2024 will rise from a maximum of £20,000 per individual found to be employed in breach of the guidance to £60,000 for each individual found not to have the right to work in the UK.  Furthermore, criminal penalties, such as a prison sentence or an unlimited fine could also be applied where it is found that the employer knew or had reasonable cause to know that an individual is an illegal worker.

What does the Guidance Say?

An employer must follow the government’s guidance, as set you by the Home Office in its “Employer’s Guide to Right to Work Checks” guidance.  The guidance in this area of law is frequently updated, and it is important that employers are aware of the latest guidance at the time when they take on a new worker that proper records are retained to evidence the checks that were carried out.  The checks recommended within the current guidance can be carried out manually or online, depending on the potential employee’s permit status.  In summary, to complete the checks manually, the employer must obtain original documents from the Home Office’s list of acceptable documents (section 7 of the guidance) and once those are obtained the employer must carry out the following steps:

  • Check to the best of their ability that the documents are genuine by checking that names, photographs and dates of birth are consistent across the documents;
  • Check the expiry dates for any time limited permission to be in the UK;
  • Check any work restrictions to find out if the prospective employee is able to do the work on offer; and
  • Copy each document in a format which cannot manually be altered and retain the copy securely on the individual’s file.

Employers who are employing an individual with a time limited permission to work in the UK will need to ensure that there is a process in place to request further evidence of a right to work in the UK from that individual prior to the date of expiration of their current visa.

Given how frequently the legislation and guidance in this area of employment law is updated, employers should ensure that they are aware of the latest conditions by regularly reviewing the Home Office guidance.  Click here to view the latest version.

Open to Discrimination?

As well as ensuring that adequate checks are undertaken and the correct documentation is obtained before employing individuals, it is important to ensure that the process and procedures put in place by the employer are not discriminatory in nature.  To put it bluntly, as an employer if you are only asking certain employees who perhaps have a foreign sounding name to prove their right to work you could be open to accusations of discrimination.  Employers must not discriminate against employees or possible employees based on skin colour, or non-traditional British sounding names.  Therefore, whatever procedure is put in place to ensure potential employees do have a right to work in the UK it should apply to the whole workforce regardless of their nationality or race.

If you have any questions on this aspect of law in relation to your transport operation, then please do not hesitate to get in touch.  You can call us on 01279 818280 or click here to send an email.  We are here to help.

(C) Richard Pelly, January 2024

Driver CPC Reform: Department For Transport Publishes Consultation Findings

In early 2022 the Department of Transport (DfT) launched a consultation into the Driver Certificate of Professional Competence (DCPC) regime, following a review undertaken in late 2021 on the driver shortage issues.

The DCPC is a qualification that new drivers of certain goods or passenger carrying vehicles must hold in addition to their driving licences.  It was introduced into UK domestic law as a result of EU legislation.  Drivers sitting their DCPC must undertake 4 test consisting of :

  • A 2-part theory test
  • Case studies
  • A practical driving test, and
  • A practical demonstration of vehicle operation.

Drivers who drive vehicles that are subject to the applicable regulations must then maintain their DCPC by completing 35 hours of periodic training every 5-years.

The changes proposed by the DfT did not affect how an initial DCPC is obtained, but how drivers who are maintaining their DCPC or regaining their DCPC, for instance for those drivers who previously held a qualification but allowed it to lapse, go about undertaking their periodic renewal.

The proposed changes aim to create two parallel qualifications for driving in Great Britain and Northern Ireland; a national DCPC (N-DCPC) which is the qualification that the DfT launched a consultation on, and an international DCPC (I-DCPC) which would remain compliant with the UK/EU Trade & Cooperation Agreement.

Making Qualification more Flexible:

Currently Regulations mean DCPC training modules have to be 7 hours long, or 3.5 hours if split, including when part of the module contains e-learning, both parts need to be completed across two consecutive days.  The proposed changes were aimed at enhancing flexibility for drivers and their employers.  Whilst the 35 hours of training will remain, the removal of the need to complete training across two consecutive days or to have a minimum duration for a training day is aimed to aid drivers when re-entering the industry.

Faster Route for Training Returning Drivers:

Under the proposals, returning drivers could be allowed to take the shorter periodic tests.  The DfT believes that making experienced drivers go through a full training and testing regime puts up barriers to their re-entry and creates a disproportionate burden on the testing regime.  With this change it is hoped to be able to react more quickly to issues such as the Covid-19 Pandemic when significant pressure on critical supply chains was experienced, exacerbated by a shortage of qualified HGV drivers within the UK.

Safety Levels Maintained?

At the time of the launch of the consolation, Logistics UK voiced concerns about issues these proposed changes might lead to.  They suggested that the periodic tests could undermine road safety if drivers do not get the full training required, due to the increased complexity around the different rules and levels of training.  The possible increase in costs of training was also highlighted; “logistics businesses have already faced a 12.6% rise in vehicle operating costs, are facing a reduction in energy support and are investing in decarbonisation technologies in line with the government targets… these businesses cannot continue to absorb yet more rising and unnecessary costs, which would ultimately have to be passed on to end users”.

You can read the full consultation document from the Government by clicking here.

Next Steps Announced by Government:

The consultation closed at the end of April 2023.  In December 2023 the DfT published the initial findings to the consultation and announced what the next steps would be.  The DfT stated that the principle of reforming the DCPC was “widely supported” by industry stakeholders, specifically around a periodic testing option within the National DCPC in lieu of defined training.  E-learning also garnered significant support in the industry, allowing the DCPC training pathway to be streamlined for returning drivers.  However, the Road Haulage Association and the Confederation of Passenger Transport have vocally criticised the periodic testing proposal as being unsafe and unsuitable.

In summary, the Government has decided that DCPC will benefit from reforms to increase flexibility when renewing and regaining the qualification.  To implement this the Government is proposing:

  • To consult further on introducing a new periodic test as an alternative to 35 hours of training, for drivers looking to renew their DCPC – this would also be available to drivers looking to return to the sector and will form an accelerated return pathway for them;
  • To reform training by reducing the minimum course length from 7 hours down to 3.5 hours;
  • To “decouple” e-learning from trainer-led courses, and to;
  • Develop with the Driver & Vehicle Standards Agency (DVSA) more core course content and encourage informal assessment at the end of modules.

The changes to the training reforms are scheduled to be brought into force with the use of secondary legislation, using powers within the Retained EU Law (Revocation and Reform) Act and to bring forward this legislation to commence in summer 2024.  However this legislation is not going to include the introduction of the new periodic test.  The DfT is proposing a further period of consultation with industry stakeholders on that issue.

If you would like to read the full overview of responses and the Government’s response then please click here.

If you would like to discuss any of these changes and how they might affect your transport operation, then do please get in touch by calling 01279 818280 or click here to send an email.  We are here to help.

(C) Richard Pelly January 2024