In this article, Andrew Woolfall of Backhouse Jones solicitors looks at the latest revisions to the Traffic Commissions’ Statutory Guidance documents, issued in November 2018.
In 2012, to coincide with the implementation of new EU regulations, the Senior Traffic Commissioner issued a number of documents giving guidance and direction to operators, other Traffic Commissioners and members of their staff on how the rules and regulations governing operator licensing and vocational drivers’ licences should be approached. While these documents were issued under the authority of the Public Passenger Vehicles Act 1981 — with the exception of two dealing specifically with novelty vehicles and running bus services — they apply equally to both the goods and passenger industries.
The first major revision to the guidance and direction came in 2015. In November 2016, there was the launch of improved digital services for goods and passenger vehicle operator’s licence holders and following this, a number of the documents were republished in September 2017. However, the summer of 2018 saw the Senior Traffic Commissioner undertake a wide-ranging consultation covering all the guidance and direction and a new suite of documents have now been published with effect from November 2018. Unfortunately, while the consultation exercise this summer was publicised in the trade press and through industry bodies (and indeed by the Traffic Commissioners themselves), no single operator actually responded to the suggested changes. In the main, comment came from the trade associations and other interested parties. This is, perhaps, something that operators should bear in mind the next time there is a consultation — after all, these documents are about how they will be dealt with by their regulator.
The guidance and direction
The guidance and direction documents aim to provide a greater understanding and transparency to the way in which the Traffic Commissioners approach their roles while also setting out how operators can expect the Commissioner’s staff to deal with licensing applications and other paperwork.
The “guidance” element of each document explains how the Senior Traffic Commissioner believes Traffic Commissioners should interpret the law, subject to decisions of the higher courts and to subsequent legislation. The “directions” are addressed to the Traffic Commissioners and the staff working to support them and detail how and what procedures should be adopted and decisions made.
There are now 14 documents covering a wide range of areas as follows.
Good Repute and Fitness.
Operating Centres, Stable Establishments and Addresses for Service.
Legal Entities (including insolvency and Regulation 31 and section 57 applications).
Vocational Driver Conduct.
The Delegation of Authority (in terms of staff and multiple licence holders).
The Principles of Decision-making and the Concept of Proportionality.
The Format of Decisions (including written reasons and their publication).
Small PSV Operations (including limousines and novelty vehicles).
Local Bus Services in England (Outside London) and Wales.
All of the above can be found at GOV.UK website.
As can be seen from the above list, these documents can be a valuable source of information for operators, transport managers and drivers. They clarify how applications will be dealt with, how financial standing will be calculated, how operating centre issues and problems with local residents will be viewed and how concepts such as good repute and fitness will be interpreted. Transport managers will find detailed guidance on what is expected from them including details of the types of activities they will be expected to carry out in their role. Drivers can see how their vocational licences will be affected if they receive fixed penalty notices or are convicted of offences. This, in particular, can be sobering reading for many drivers who might face a prospect of having issues with regards to speeding or using mobile phones. If an operator finds itself before the Traffic Commissioner for a public inquiry, the documents can give an understanding as to how the Commissioner may end up dealing with their case.
The 2018 revisions
The latest revisions issued in November 2018 build upon the previous guidance but offer new insight into several new areas including:
The continuous professional development of operators and transport managers
The Traffic Commissioners’ approach to self-employed drivers
Periods of grace when there is no transport manager or financial standing is not met
Clearer guidance on what will happen if an operator is found to be acting as a “front” for another individual or business
The importance of accurate applications
A new section on support for tribunal users.
The Senior Traffic Commissioner has placed great emphasis on continuing professional development, both for operators and transport managers. Restricted licence holders are expected to take steps to ensure they have a good understanding of their obligations under the licence and that this knowledge is then kept up to date. Operators, company directors or business partners as well as transport managers are expected to undertake regular refresher training in order to maintain their own good repute. This will include “face-to-face” training and not just reading the trade press. This training will come under scrutiny in certain circumstances including:
When a person has not acted for an operator in the last five years
When a qualification is more than 10 years old
When questions about continuous and effective management are being considered at a public inquiry (or indeed at preliminary hearings or the increasingly common senior team leader meetings).
Operators can also now expect more questions to be asked if they utilise self-employed drivers. The revised guidance makes it clear that, following recent campaigns by the HMRC, there will be relatively few circumstances when a driver can be genuinely considered to be self-employed. Operators who use such arrangements to gain a commercial advantage can expect questions being asked of their good repute or fitness.
Further information from the Commissioners
The revised guidance and direction from the Senior Traffic Commissioner forms part of a range of publications aimed to help operators understand their regulatory environment. The Commissioners already publish annual reports detailing the challenges they face and their priorities in terms of regulation. These publications show the regional issues encountered across Great Britain as well as the trends in action taken against licences.
Written decisions from public inquiry hearings are now being published online with the intention that operators and transport managers can read these and learn from the mistakes and shortcomings of other businesses and individuals. These are now being supplemented by regular bulletins seeking to offer “best practice” style advice featuring failings frequently seen at inquiries or in driver conduct hearings.
It is currently optional for operators and transport managers to subscribe to these bulletins; however, a new scheme is being trialled in the North Eastern traffic area whereby individuals and businesses called to public inquiry hearings will be “actively encouraged” to receive the email bulletins in order to show that they are keeping up to date with the Traffic Commissioners’ expectations. It is not clear what will happen to the individual who declines to take up the email subscription service but one thing is for sure, it certainly won’t be looked upon kindly!
While many of the guidance documents have not seen material changes from an operators perspective, all those holding operator’s licences are encouraged to make themselves familiar with the publications and their content.
Operators, transport managers and drivers will get a clear idea of the Traffic Commissioners’ expectations as to how they should conduct themselves and their businesses. Operators who previously complained about a lack of advice and guidance, claiming ignorance as to either the law, its interpretation or the expectations of their regulator now have no such ground.
The documents should be read by all — not just those facing a public inquiry hearing who are learning for the first time where they have gone wrong.
Credit: Croner-i and Andrew Woolfall of Backhouse Jones Solicitors