The Operator Licensing Regime ‘Good repute’& ‘Fitness’, Impounding, Legal entities, Maintenance

1. The Operator Licensing Regime‘Good repute’& ‘Fitness’, Impounding, Legal entities, Maintenance

2. Agenda • Good Repute & Fitness • Ways to lose your ‘Good Repute’ by being ‘non compliant’ • Operator’s relationship with the Traffic Area Office and the Traffic Commissioners • More ways to lose your good repute • Undertakings and statements of intent (‘Do you keep your promises?) • Entities • Change of ‘Entity’/ Address (How to lose your licence despite being ‘compliant’) • Maintenance • Driver Defect Reporting and Auditing • Forward Planning, PMIs and Annual Test • Anti Wheel loss – essential nut torquing / re-torquing procedures • Monitoring performance • Dealing with prohibitions • Managing vehicles when not in use • Third Party Trailers • OCRS • Impounding • Checklist

3. Public Inquiries A Traffic Commissioner may hold such inquiries as he / she thinks necessary for the proper exercise of his / her functions Before a TC exercises his / her statutory powers of revocation, suspension, curtailment or disqualification there is normally a Public Inquiry – the licence holder, TM or anyone on the receiving end has the right to demand a PI before the TC makes a direction or order. Anyone can attend – it is after all a ‘Public Inquiry’ (adverse publicity) Reasons – Review of OC, unauthorised use of an OC, prohibitions, contravention of licence condition, relevant convictions (including fixed penalties), false statements of intent in application, unfulfilled undertakings, bankruptcy or liquidation, material change in circumstances of the licence holder. Prepare well for a PI – finances, adverse encounter history, conduct, convictions may all potentially come into play. Maintenance systems and arrangements for management of drivers hours will also come under scrutiny of the TC.

4. Countdown to a Public Inquiry Previous warnings/ PIs ‘S’ marked prohibition – wheel security / braking system Non ‘S’ marked prohibitions Adverse maintenance inspection – on site prohibitions / poor records Stretched PMI intervals Poor MOT Performance Recent convictions (failure to notify) Failure to respond to correspondence Call up letter detailing all the evidence the TC will consider Submission of financial information in advance Hearing date seldom adjourned Penalty – a Deadly Sin or Conviction – a Serious Criminal Offence

5. ‘Good Repute’ & ‘Fitness’

6. Fitness is what you need to be a restricted licence holder – fitness is determined by conduct of the operator in relation to a business operating vehicles of any description and notifiable convictions • Good Repute is what you need to be a Standard Licence holder – repute is determined by: • Relevant convictions (including those of company officers, employees) • Article 6 of regulation 1071/2009 • Conduct relating to fitness to hold a licence (including company officers, employees)

7. Ways to Lose your ‘Good Repute’ (non compliance route) Serious Criminal offences and Road Transport Offences TC must conclude an individual is not of good repute if more than one conviction for a serious criminal offence or has been convicted of road transport offences

8. Serious Criminal Offences Any conviction where one of the following punishments has been imposed: Imprisonment exceeding 3 months A fine exceeding Level 4 on the standard scale - £2,500 A Community Service Order for more than 60 hours

9. Road Transport Offences • Examples: • Drivers’ Hours offences. • Overloads • Condition and safety of vehicles and loads • Environmental offences

10. Regulation (EC) 1071/2009 The good repute of transport managers is conditional on their not having been convicted of a serious criminal offence or not having incurred a penalty, for a serious infringement, in particular, of Community rules relating to road transport. A conviction or penalty incurred by a transport manager or a road transport undertaking in one or more Member States for the most serious infringements of Community rules should result in the loss of good repute.

11. Most serious infringements - 7 Deadly Sins Drivers’ Hours infringements 1. (a) Exceeding the maximum 6-day or fortnightly driving time limits by margins of 25 % or more. (b) Exceeding, during a daily working period, the maximum daily driving time limit by a margin of 50 % or more without taking a break or without an uninterrupted rest period of at least 4.5 hours. 2. Not having a tachograph and/or speed limiter, or using a fraudulent device able to modify the records of the recording equipment and/or the speed limiter or falsifying record sheets or data downloaded from the tachograph and/or the driver card.

12. Most serious infringements - 7 Deadly Sins Condition of vehicles 3. Driving without a valid roadworthiness certificate if such a document is required under Community law and/or driving with a very serious deficiency of, inter alia, the braking system, the steering linkages, the wheels/tyres, the suspension or chassis that would create such an immediate risk to road safety that it leads to a decision to immobilise the vehicle. 4. Transporting dangerous goods that are prohibited for transport or transporting such goods in a prohibited or nonapproved means of containment or without identifying them on the vehicle as dangerous goods, thus endangering lives or the environment to such extent that it leads to a decision to immobilise the vehicle.

13. Most serious infringements - 7 Deadly Sins Lack of entitlements 5. Carrying passengers or goods without holding a valid driving licence or carrying by an undertaking not holding a valid Community licence. False documents 6. Driving with a driver card that has been falsified, or with a card of which the driver is not the holder, or which has been obtained on the basis of false declarations and/or forged documents. Overloads 7. Carrying goods exceeding the maximum permissible laden mass by 20 % or more for vehicles the permissible laden weight of which exceeds 12 tonnes, and by 25 % or more for vehicles the permissible laden weight of which does not exceed 12 tonnes. If an Operator or a TM are convicted of a serious criminal offence or they incur a penalty for a deadly sin the default position is loss of repute unless the TC makes a finding loss of repute would constitute a disproportionate response.

14. Other ‘discretionary’ grounds for loss of good repute • Individuals • The TC can have regards to any matter but in particular: • Relevant convictions of the individual or of his servants or agents; • Any other information in the TC’s possession which appears to him to relate to the individual’s fitness to hold a licence • Companies • Any relevant convictions of the company or of its officers, servants or agents • Any other information in the TC’s possession as to the previous conduct of : • Any officer, servant or agent • Any of the directors, in whatever capacity • If that conduct appears to relate to the company’s fitness to hold a licence

15. Examples of ‘Relevant Convictions’ • Offences involving: • Plating certificate and goods vehicle test certificates • Maintenance of vehicles in a fit and serviceable condition • Limits of speed and weight and loading of goods vehicles • Licensing of drivers • Any offence under GV (Licensing of Operators) Act 1995 • Illegal use of fuel • Drivers’ hours offences • Failure to keep records of inspection of goods vehicles • Environmental offences – illegal deposits of controlled waste • Traffic regulation orders – lorry routes

16. Operator’s relationship with the Traffic Area Office and the Traffic Commissioners “A licence is issued to an operator on trust that the operator will comply with the requirements and that the application form has been fully and honestly completed”. You will often hear a TC say – ‘Trust lies at the very heart of the operator licensing regime’. ‘ I need to be sure I can trust you with a licence and trust that you will comply with your statement of intent and the undertakings you have given to me’. ‘ Any adverse findings by a TC are going to be extremely hard to dislodge on appeal.

17. More ways to lose your Good Repute Previous adverse history – warnings/ other PI Prohibitions Convictions and Fixed Penalty Notices A persistent failure to comply with undertakings Failure to notify material changes (financial difficulty) An application form that is untruthful False bank statements Failure to disclose convictions Phoenix arrangements to avoid previous liabilities Dishonesty and illegal operation An attempt to deceive the TC in dealings with (i.e. Untruthful application) or at PI Alteration of documents to deceive TC / VOSA Attempts to circumvent the licensing system Bankruptcy/ Liquidation Abusive behaviour towards VOSA and other members of OTC staff Failure to heed advice Unauthorised use of place as OC Loan of discs TMs not exercising continuous and effective responsibility Use of untaxed fuel Use of uninsured, untaxed vehicles or vehicles out of test Use of vehicle without clearing a prohibition

18. Entities

19. How to lose your licence despite being ‘compliant’ • Change of entity or identity of operator must be notified • Sole Trade to Partnership (new licence required) • Partnership to Sole Trade (new licence required) • Addition of a partner(s) to an existing partnership dissolves old partnership and creates a new partnership (new licence required) • Resignation of one of 3+ partners dissolves old partnership and creates a new partnership(new licence required) • Incorporation of Sole Trade or Partnership (new licence required) • Note Schedule 4 procedure for transfer of Operating Centre where there is no change other than that of the identity of the operator • Change of correspondence address must be notified

20. Maintenance

21. Driver Defect Reporting

22. Driver Defect Report

23. Forward Planning

24. Frequency of Inspections

25. Annual Test • Importance of pre-MOT preparation and safety inspections • Refer to VOSA’s annual test inspection manuals • Mrs Bell considers a 95% pass rate ‘acceptable’

26. Safety Inspections

27. Wheel nut torquing procedure Code of practice for the selection and care of tyres and wheels for commercial vehicles states: Retorque wheel nuts after:- 30 minutes or after having travelled for between 40 km and 80 km (25 to 50 miles).

28. Monitoring Performance “Even when you get on well with a contractor, you should have a system for regularly monitoring the quality of work done. Obtaining first time pass rate annual test data from the contractor is one way of checking that their performance is satisfactory, but this should be supplemented by other checks. Any sign of unreliability, incompetence or other shortcomings causing a reduction in the standards achieved should receive prompt attention. Here again a good working relationship can help, but if problems persistyou might well consider a change of contractor.” Continuous reviewing and monitoring of the quality of the systems in place is essential to ensure that they are sufficiently comprehensive to do the job. One method of monitoring is to invite a technically competent third party periodically to re-inspect or undertake a safety inspection irrespective of whether inspections are done in-house or are contracted out. Drivers • Quality of daily driver checks • Cross referencing with Safety Inspections The external contractor Guide to maintaining roadworthiness

29. Prohibitions • The problem – • Part of an operator’s encounter history (OCRS) • “S” marked prohibitions • Do nothing – • Accept prohibition • Appeal – • Lodge Complaint against a prohibition • Refer to Customer Complaints Co-ordinator • Refer matter to the Independent Adjudicator

30. Managing Vehicles when not in use • Under repair • Awaiting repair/ scrapping • Withdrawn from service • Accident damaged • Should such vehicles be examined or prohibited?

31. Persuasive evidence vehicle not in use • Notice in cab / fixed to trailer – stating vehicle VOR and not to be driven • De-specify vehicle (don’t forget to re-specify before re-use) • If vehicle in for inspection do not indicate to VE that safety inspection has been completed!

32. Trailers • The problem…. • Its not my trailer! • I was contracted to collect a pre-loaded trailer! • I have no access to the safety inspection records

34. Practical solutions • Agree customer/ owner to be responsible • Records (obtain and retain for 15 months) • Mobile Mechanic (if all else fails) • Driver training (Training/ capability issues?)

35. VOSA uses the Operator Compliance Risk Score (OCRS) system to decide which vehicles should be inspected. OCRS is used to calculate the risk of an operator not following the rules on roadworthiness (the condition of its vehicles) and traffic (e.g. drivers’ hours, weighing checks). If your OCRS is high, it’s more likely that your vehicles will be inspected.

36. The Operator Compliance Risk Score (OCRS) system is based on data collected by the Vehicle and Operator Services Agency (VOSA) over a 3-year rolling period. Data is taken from annual tests, roadside inspections and inspections at operators’ premises.

37. Scoring is split into 2 categories: As an operator you get points when a test or inspection finds a defect or infringement of the rules. The more serious the defect or infringement, the more points. R (red - highest risk), A (amber - medium risk) or G (green - lowest risk).

41. Impounding

42. Impounding for illegal operation • Your goods vehicle could be impounded: • If you operate a goods vehicle without a valid licence if one is required; • If you operate your goods vehicle before a licence (or interim licence) is issued; • the goods vehicle can be sold or crushed with the proceeds of any sale returned to the rightful owner, less any costs associated with the impounding. “Truck impounding appeal fails” The owner of a truck who had it impounded by VOSA after it was discovered with no O-licence disc displayed, has lost his appeal to get it back.

43. Businessman fails to secure return of impounded lorry 9 January 2013 2.19pm. A DUNDEE businessman has been told he cannot have his lorry back after it was impounded for being operated illegally. Kerr Hay, who owns Tayside Scaffolding Ltd, failed in his bid to have the vehicle returned following its confiscation in November. Traffic Commissioner for Scotland Joan Aitken told Mr Hay his case would serve as a warning to anyone running an HGV without an operator’s licence. An inquiry in Edinburgh heard that Mr Hay blamed “stupidity and naivety” for the oversight, which saw him pulled over by officers from the Vehicle and Operator Services Agency (VOSA) on the A9 near Perth. He had previously been written to four times by VOSA, reminding him that his Ford Iveco Cargo could be impounded if he did not obtain an operator’s licence. A subsequent licence application was rejected after it failed to meet some of the mandatory criteria.

44. Deprivation of property and assets Section 143 Powers of Criminal Courts (Sentencing) Act 2000 – vehicles can potentially be seized by Police where, used, or intended to be used to commit or facilitate the commission of any offence (not necessarily the offence of which the offender has been convicted). An order under this section operates to deprive the offender of his rights, if any, in the property to which it relates, and the property shall (if not already in their possession) be taken into the possession of the police.

45. Countdown to impounding • VOSA / OTC may first issue a warning. If the warning is not heeded and the vehicle is caught being used illegally.....! • Release by VOSA • VOSA has the power to release impounded vehicles – release fee payable - where VOSA is satisfied at the time of detention: • The user of the vehicle held a valid Licence • The use is not illegal (i.e. lawful cabotage/ combined transport) • The vehicle owner did not know of the illegal use • Although the owner had knowledge of the illegal use it had: • taken steps with a view to preventing that use; and • (ii) taken steps with a view to preventing any further such use.

46. Entitlement to return of the vehicle • The owner of the vehicle must apply in writing to the Traffic Commissioner for the return of the vehicle setting out the statutory grounds relied on – • The user of the vehicle held a valid Licence • The use is not illegal (i.e. lawful cabotage/ combined transport) • The vehicle owner did not know of the illegal use • Although the owner had knowledge of the illegal use it had: • taken steps with a view to preventing that use; and • taken steps with a view to preventing any further such use. • If the owner fails to apply for the return of the vehicle in time the TC will make • an order for its disposal.

47. Goods Vehicles legislation – impounding for following reasons: • Licence revoked • Previous warnings unheeded • Repeat applications but no licence granted • Illegal cabotage • Operator Licence identity disc fraud

48. Checklist • Administration: • Use online System – get login ID and password • Ensure changes of address are notified to TAO • Changes of entity – this may result in automatic revocation or otherwise require a fresh licence application • Convictions – write in to TAO with an explanation (it is a condition of your licence) • Prohibitions: • Either lodge complaint or write in to Traffic Area Office with an explanation • Safety Inspections • Ensure safety inspections are undertaken within stated frequencies (external audits) (torquing policy) • Ensure drivers do their daily checks – record checks and any defect rectifications (wheel nuts) (audits) (Training) • Ensure pre-use safety inspections for trailers / vehicles where first use is outside stated inspection intervals • Remember customer trailers used by you are still your responsibility (pre-use safety inspections) • Ensure all safety inspection records are completed and signed off • Enforcement & MOT History: • OCRS – find out your score – its good to be green. • Preparation for MOT – RBT / headlamp aim prior to MOT (Voluntary Check).

49. Questions?