Senior Traffic Commissioner’s Statutory Document Amendments – September 2022

The Senior Traffic Commissioner's Statutory Documents are crucial guidance documents that set out the relevant rules and obligations applicable to the holders of PSV and HGV operator's licences.  In September 2022 these documents were updated in 11 areas including the guidance for transport managers and the impounding of vehicles.  We have summarised the key updates below and would recommend familiarising yourself with them to ensure that your processes and procedures are as up to date with current thinking as possible.  If you would like any specific advice on any of these areas, then please do not hesitate to get in touch.  Click here to send and email or call 01279 818280 to speak with one of our lawyers.  We are here to help.

Statutory Document No. 0

This is an introductory document giving an overview of the Operator Licensing regime.  The change to this document relates to operators being able to only operate trailers if the operator's licence specifically authorises the use of them.  The document states "...under section 5(1) of the 1995 Act, vehicles (whether specified on the licence or not) and trailers authorised to be used under an operator's licence are those in the lawful possession of the licence holder...".

Statutory Document No. 2 - Finance

This document covers all things finance.  The amendments deal with the starting points for periods of grace and the way that operators should be utilising a period of grace when given.  So, under section 27 (3A) of the 1995 Act and Regulation (EC) No. 1071/2009 (as 'Retained') if a standard national licence holder cannot demonstrate financial standing the Traffic Commissioner is allowed (but not required) to provide a period of time in order to rectify the situation. The amendment states that in order for such a period to be granted tangible evidence "beyond mere hope and aspiration" of how the financial standing will be achieved will be needed in order to allow the Traffic Commissioner to adequately decide on the length of the period, or indeed whether to grant such a period at all.  As the document states "there is no point granting a period of grace if the likely effect is just to put off the evil day when regulatory action will have to be taken".  For more information on financial standing requirements click here to read our article on the subject.

Another amendment provides further explanation of the concept of "actually available funds" and "technically available funds" when operators are seeking to demonstrate their financial standing.  Financial resources must be at the disposal of or within the reach of the operator without the need to ask someone else to transfer the money in order to qualify as "available funds".  "Actually available funds" would include a credit balance in a bank account, or an unused portion of an overdraft or credit card limit.  An example of what would be deemed a "technically available fund" is a lump sum from a pension.  Whilst this is technically available to an operator it relies on them being the required age to take the lump sum and for the operator to have to request permission from the pension provider to pay it to the operator.

Statutory Document No. 4 - Operating Centres

The guidance on operating centres, stable establishments and addresses for service which this document covers has been amended to clarify that Traffic Commissioners do not have the necessary jurisdiction to seek to adjudicate upon a dispute of a technical nature over whether the particular use of a property or piece of land is lawful or not.  Planning law provides the appropriate route for such disputes to be resolved.  The guidance states that Traffic Commissioners must simply be satisfied that the site is "available" for use as an operating centre.  If the position is that the applicant has no right of way over the point of access, for instance, then it is difficult to see how the operating centre would be "available" to the operator.

Statutory Document No. 5 - Legal Entities

This document has a few changes to its guidance, including the matters that Traffic Commissioners must consider if there is evidence of a de facto Director involved in the operation.  It also gives guidance on the employment of drivers and when they can be legally considered self-employed drivers.

In addition there is an update on the legal provisions when applying for Regulation 31 of the Good Vehicles (Licensing of Operators) Regulations 1995 - where a business is going into administration.  A copy of the form needed to apply for Regulation 31 can be found here.

Statutory Document No. 6 - Vocational Driver Conduct

The Public Service Vehicle Accessibility Regulations 2000 and Public Service Vehicles (Conduct of Drivers, Inspectors, Conductors and Passengers) (Amendment) Regulations 2002 requires bus conductors to provide "reasonable assistance" to disabled passengers including wheel chair users to board and alight vehicles covered by the PSVAR.

It also outlines the measures to be taken against drivers who falsify drivers' hours records with intent.  Namely, being called to a hearing and if found "guilty" facing a 4-week suspension for each falsification offence up to and including 6 offences, with revocation and disqualification for 12 months for more than 6 offences.

Statutory Document No. 7 - Impounding

This document now gives more guidance on dual registration for specialist events hauliers.  Click here to access the Government's advice on this matter. The new guidance also explains how one would go about the removal of temporary cabotage measures.  Article 8(2) of Regulation (EC) No. 1072/2009 defines the extent to which non-resident carriers from EU member states are permitted to operate national road haulage services, known as "cabotage".  The cabotage operations must be completed within the seven days following the last unloading of an incoming international journey and using the same tractor unit.  Where a foreign based haulier applies for an operator's licence in Great Britain that haulier will become a "resident carrier" and subject to the ongoing obligations to comply with domestic law including Vehicle Excise Duty (as per section 1 of the Vehicle Excise and Registration Act 1994).  In order to obtain Vehicle Excise Duty, the applicant will usually be required to present a valid MOT test certificate.

Statutory Document No. 9 - Case Management

This section includes clarification surrounding the issuing of "interim" licences and the various time limits that may be set by a Traffic Commissioner if requested by an operator, where there is evidence presented to show that such a licence would be appropriate.  Further information can be found by clicking here and reading paragraphs 15-19 of the document.

Statutory Document No. 13 - PSV Operations

This document now states that operators carrying out "Regulated Activities" with regards to children (more information as to the definitions can be found by clicking here to go to the Government website) should ensure drivers are eligible to apply for an enhanced DBS check.

There is a lot of information to assimilate within the latest changes to the Senior Traffic Commissioners documents and hopefully our summary and attachments will help to pinpoint the key areas which have been amended or included and how that might affect your operation.  All the guidance given within the Senior Traffic Commissioners Documents is meant to inform operators about how the various Traffic Commissioners will aim to approach Operators' Licence cases from the first application level through to Public Inquiries.

If you would like any legal advice on these amendments or any other aspect of your transport operation click here to send an email or call 01279 818280 to speak with one of our lawyers.  We are here to help.

(C) Richard Pelly November 2022