Public Inquiry Hearings, Financial Standing & Operators’ Covid Conduct – STC’s updated Emergency Statutory Document
At the beginning of the Covid-19 pandemic, the Senior Traffic Commissioner published an emergency Statutory Guidance Document which provided the Traffic Commissioners and their Deputies with directions on the exercise of their functions during the period of the virus outbreak in the light of the government’s lockdown measures.
With those measures easing, the Emergency Guidance has been updated to reflect the Office of the Traffic Commissioner’s plan to resume some of its core functions, and to the approach to be taken in a number of areas going forward.
Resumption of Public Inquiry Hearings
Since lockdown no face-to-face hearings have been conducted and any public inquiry which had been listed prior to 20 March 2020 was postponed. Road safety issues have remained firmly in mind, and where immediate risks were identified, TCs have been calling ‘virtual’ hearings to deal with them.
The updated Guidance is in line with the government’s updated general guidance on Covid-19 and the importance of continued social distancing. The document makes clear that the easing of lockdown restrictions does not necessarily mean that all cases should be listed for hearing in person at a tribunal facility. It remains the case that alternative means of disposing of cases will be considered, all in the interest of continuing to minimise the risk of spread of the virus, whilst at the same time keeping in mind road safety considerations. Alternatives to in-person hearings will continue to include the use of virtual hearings, or the disposal of matters in correspondence or via written submissions where appropriate.
The Guidance recognises that there are certain cases – because of their complexity, and/or the requirement to consider large volumes of documentary evidence which are not practical via virtual hearings and where a face-to-face hearing will be required. Guidance is provided on all of the measures Tribunals need to follow to facilitate in-person hearings, to include ensuring that social distancing measures are capable of being adhered to. Specific directions on the attendance of witnesses and the production of documents are likely to be provided at the point of calling the Public Inquiry, and operators will need to be as co-operative as possible with directions. Failure to do so is likely to be regarded as a conduct issue which may have a bearing on the outcome of the proceedings.
The Guidance also addresses the approach Traffic Commissioners will take when it comes to requests to adjourn hearings. While it is recognised that in certain cases those seeking adjournments because of self-isolation may not be in a position to provide evidence, the ultimate consideration will, as ever, be the impact of any delay in dealing with a case on road safety. It follows that although there may be some discretion to relax the usual requirement to provide evidence in support of an adjournment request, there is no guarantee that any request will be granted: each case will be assessed on it individual merits.
Conduct During Covid
Importantly for operators, the Senior Traffic Commissioner has directed that the way in which operators have dealt with matters during the course of the pandemic must also now form part of any Traffic Commissioner’s decision-making process when it comes to regulatory action, and the Document provides a non-exhaustive list of the types of conduct issues TCs might have in mind, including:
- Sound risk assessment in maintenance management and in particular a sensible approach to prioritising vehicle inspections given restrictions;
- The use of online resources for training or remote audits – including CPC refresher training and CPD for operators and transport managers;
- The extent to which the operator has supported the national effort to tackle the virus;
- The use of the government’s furlough scheme (or any suggestion of its mis-use) – including whether there has been a failure to notify the TV of a furloughed transport manager;
- The use of the virus pandemic generally to evade O-licence requirements or undertakings, or to fail to cooperate with the DVSA;
- Failure to follow amended maintenance guidance (or abuse/mis-use of the relaxations in place); and
- Abuse or mis-use of the drivers’ hours relaxations that were in place for much of the lockdown period.
In recognition of the unprecedented circumstances surrounding the Covid pandemic, new EU regulations were laid down on 25th May 2020, temporarily extending many of the time limits that apply to various areas of road transport regulation.
The STC’s amended Statutory Document reflects the fact that one of the time limits extended in recognition of the obvious economic fallout of the coronavirus is the maximum length of a period of grace which may be granted where an operator is unable to demonstrate that it continues to meet its financial standing requirement. This period has been extended from 6 months to 12 months for any financial assessment carried out between 1st March and 30th September 2020. For any operator that was given up to a 6-month period of grace between those dates before the new EU regulation came into place, the regulation gives the Traffic Commissioners the power to increase the period of grace to up to 12 months.
In deciding whether to use their discretion to allow a period of grace, Traffic Commissioners will need to be satisfied that the operator is not insolvent, that there are no maintenance or other road safety issues, and that requesting a period of grace is not designed to enable an operator to avoid compliance failings.
As lockdown measures continue to be eased, it is likely that there will be further updates to the OTC literature, so operators should make sure that they remain up to speed.
Traffic Commissioners will expect operators to be familiar with the content of the Statutory Guidance Document, so operators are advised to read the document in full. Click here to go through to the OTC website.
If you need help with preparing for a hearing, conduct during Covid-19 or financial standing (or anything else relating to O-licensing), please give us a call on 01279 818280 or 07912 073994, or click here to send an email.