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

Legal entities, Maintenance

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

Public InquiriesA 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.

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

‘Good Repute’ & ‘Fitness’

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)

Ways to Lose your ‘Good Repute’ (non compliance route)

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

Serious Criminal offences and Road Transport Offences

Imprisonment exceeding 3 months

A fine exceeding Level 4 on the standard scale - £2,500

A Community Service Order for more than 60 hours

Serious Criminal OffencesAny conviction where one of the following punishments has been imposed:

Road Transport Offences

Examples:

Drivers’ Hours offences. Overloads Condition and safety of vehicles and loads Environmental offences

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.

Most serious infringements - 7 Deadly Sins

Drivers’ Hours infringements1. (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.

Most serious infringements - 7 Deadly Sins

Condition of vehicles3. 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.

Most serious infringements - 7 Deadly Sins

Lack of entitlements5. Carrying passengers or goods without holding a valid driving licence or carrying by an undertaking not holding a valid Community licence.

False documents6. 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.

Overloads7. 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.

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

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

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.

More ways to lose your Good ReputePrevious adverse history – warnings/ other PIProhibitionsConvictions and Fixed Penalty NoticesA persistent failure to comply with undertakingsFailure to notify material changes (financial difficulty)An application form that is untruthfulFalse bank statementsFailure to disclose convictionsPhoenix arrangements to avoid previous liabilitiesDishonesty and illegal operationAn attempt to deceive the TC in dealings with (i.e. Untruthful application) or at PIAlteration of documents to deceive TC / VOSAAttempts to circumvent the licensing systemBankruptcy/ LiquidationAbusive behaviour towards VOSA and other members of OTC staffFailure to heed adviceUnauthorised use of place as OCLoan of discsTMs not exercising continuous and effective responsibilityUse of untaxed fuelUse of uninsured, untaxed vehicles or vehicles out of testUse of vehicle without clearing a prohibition

Entities

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

Maintenance

Driver Defect Reporting

Driver Defect Report

Forward Planning

Frequency of Inspections

Annual TestImportance of pre-MOT preparation and safety inspections

Refer to VOSA’s annual test inspection manuals

Mrs Bell considers a 95% pass rate ‘acceptable’

PRS Policy.pdf

Safety Inspections

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).

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 persist you might well consider a change of contractor.”

The external contractorDrivers Quality of daily driver checks

Cross referencing with Safety Inspections

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.

Guide to maintaining roadworthiness

ProhibitionsThe 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

Managing Vehicles when not in use

Under repair

Awaiting repair/ scrapping

Withdrawn from service

Accident damaged

Should such vehicles be examined or prohibited?

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!

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

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?)

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.

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.

Category Where the data comes from

Roadworthiness Vehicle tests (first tests, subsequent annual tests); ‘vehicle encounters’ (fleet check inspections at operator premises, roadside inspections)

Traffic Roadside inspections and prosecutions (e.g. for drivers’ hours and tachograph offences, weighing checks)

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).

Impounding

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.

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.

Businessman fails to secure return of impounded lorry9 January 2013 2.19pm.

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.

Deprivation of property and assets

Countdown to impoundingVOSA / OTC may first issue a warning. If the warning is not heeded and the vehicle is caught being used illegally.....!

Release by VOSAVOSA 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:(i)taken steps with a view to preventing that use; and(ii) taken steps with a view to preventing any further such use.

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:(i)taken steps with a view to preventing that use; and(ii)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 makean order for its disposal.

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

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).

Checklist

Questions?