Barker Gotelee

As we enter 2010 we thought we would touch on some recurring themes in the road transport compliance sector during the course of 2009.

1.   We have noticed the increase, particularly in the Eastern Traffic Area, in the number of public inquiries being called which primarily deal with maintenance issues, often for relatively new operators and many of a nature which would not normally lead to the revocation of a licence but might well be dealt with by written warnings or small scale suspension or curtailment of licences.  You may have seen the number of operators who appear to have undertakings now attached to their licences, following public inquiries, requiring them to attend operator awareness, maintenance or driver's hours courses held by outside professional bodies/consultants.  It is often also a requirement to carry out follow-up audits which must be lodged with the Traffic Commissioner, together with a list of recommended changes.

2.    Financial Standing - this area continues to present difficulties for a number of reasons, which arise at the 5 year renewal point or when operators are called to hearings or where new licences/variations of existing licences are being applied for.  Financial standing information must be in the name of the entity holding the licence.  There must be demonstrated continuous access to the required amount.  Invoicing arrangements need to be presented in the correct way to demonstrate what facility is actually available.  We continue to see particular problems where businesses have changed their legal entity (e.g. sole trader to partnership or to Limited Company) without applying for a new operator's licence.  The operator's licence must be held by the entity that uses the vehicle on the public highway and the "user" is the entity which engages or employs the drivers.  Please note the new financial standing requirements from 1.1.2010.

3.   Application/variation of operator's licence - it was suggested to us recently by Leeds staff (Office of the Traffic Commissioner) that only a very small proportion of applications sent to Leeds are actually completed correctly.  We know that operators are becoming increasingly frustrated by the letters written back to them by Leeds asking for further clarification and documentation.  It is certainly the case that some problems could be avoided, but at the same time it is regrettable that local traffic area offices cannot deal with these operator licensing issues when there is good local knowledge.  We have just had a flurry of issues concerning newspaper advertisements where Leeds have indicated they are not prepared to accept advertisements in certain newspapers because of the lack of local penetration of circulation, when there is no mention of it in the guides issued by the Department of Transport.

4.    During the course of the last year we have continued to see a large number of careless driving, failed to stop/failed to report, insecure load and overloading cases which have ended up in the Magistrates' Court.  At the same time we are noticing how operators are not now being prosecuted for offences for which they would previously have received summonses before the introduction of graduated fixed penalties, primarily overloading.  We predicted that prior to the introduction of this scheme it would be drivers who would be paying for these penalties, whilst operators would no longer necessarily be prosecuted as they were before.  Despite Department of Transport and VOSA utterances to the contrary this predication seems to have come true.  (Please remember that any fixed penalties issued under the scheme must mandatorily be notified to the Office of the Traffic Commissioner as though they were Court convictions (within 28 days).  We strongly suggest a very detailed explanatory letter accompanies notification of the issue of the penalty to Leeds.)

5.    We anticipate that the Department of Transport/VOSA may soon issue some further information about the roadside tachograph enforcement saga, namely whether drivers must mandatorily create records for non-driving days and produce them at the roadside as part of the 28/29 day tachograph disclosure requested by VOSA or the Police.  VOSA has indicated that they interpret the changes in the rules in April 2007 to mean that drivers must record manually any work undertaken on non-driving days since the last weekly or daily rest albeit they would only require production of records for non-driving days for the week in which the stop took place.  Drivers up and down the country have been stopped and prohibitions/fixed penalties (normally £200.00) have been imposed for failures to produce employment records for non-driving days and there is great inconsistency.  So far as we are concerned we still dispute that regulation 561/2006 expressly and unequivocally makes clear what a driver must do and keep over and above the completion of tachograph records for days on which any driving has taken place.  This will ultimately only ever be tested in a Court case (probably Court of Appeal level) which a driver and/or operator is prepared to fund.  In the meantime, the best policy is likely to be that drivers have with them their tachograph records for driving days and also manual records for non-driving days so that it can be demonstrated to VOSA or the Police what their employment pattern has been, in particular during the current and previous week.

Tim Ridyard

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