Public Inquiries

The latest statistics show that public Inquiries result in 34 per cent of operators’ licenses being revoked. Don’t let you company be another unfortunate statistic.

‘Submissions from counsel and solicitors carry more weight than those from other representatives’.

(Hugh Carlisle QC, President of the Transport Tribunal)

At Dyne Solicitors we offer fixed fees for Public Inquiry work.

Click here for a Free Consultation – No obligation or fee, just fill in your details to start the process.

What we can do for you

If you have been called to Public Inquiry an experienced transport solicitor will review your call up papers, meet with you personally, help you to become compliant and will write your full submissions for the tribunal, all before the date of the hearing.

On the day of the tribunal your specialist public inquiry solicitor will attend and represent you, by which time you can be safe in the knowledge that legally your business is in the best possible shape.

Levels of Public Inquiry Representation:

Bronze

Free review of your case and a free telephone consultation with a public inquiry solicitor.

Silver

Face to face meeting with a senior transport Solicitor who will provide Full advice and support in becoming compliant before the Tribunal. Written submissions forming the basis of a robust defence, setting out your entire case clearly to the Traffic Commissioner; dealing with all factual and legal issues.

Gold

Includes the entire Silver package with the addition of attendance and submissions at Public Inquiry by your solicitor.

For more information on how we can help you with a Public Inquiry, please contact us.

Financial Standing

The main rules concerning financial standing remain the same. However, changes have been introduced regarding how to prove this ‘financial standing’ requirement.

The financial standing for Restricted Licence holders is not covered by the Regulations and remain a matter for the Traffic Commissioners.

Under the new Regulation, financial standing for new standard licence applicants have to be satisfied by either:

(i) A set of certified annual accounts or
(ii) A certified opening bank balance or
(iii) A financial guarantee (e.g. an overdraft facility or an invoice finance agreement).

Existing operators continue to have five yearly checks, as before, but any checks after the 4th December 2011 will adopt the new rules.

The Acting Senior Traffic Commissioner has issued Guidance and Directions declaring, with effect from the 1st January 2015, operators of Standard Licences will need to meet slightly lower financial requirements of £7,000 for the first vehicle and £3,900 for each subsequent vehicle. Revaluation of these amounts will take place annually. The amounts required for Restricted Licences remain unchanged at £3,100 and £1,700 respectively.

Transport Managers

Sometimes being a Transport Manager can feel like being a pawn in a game of chess!

On 4th December 2011 legislative changes to rules on operator licensing for hire or reward operations came into force in the form of a new Regulation.

The changes have specific application to Transport Managers. Since September 2011 questionnaires have been raining down on operators. This obligatory census heralded the first hint many will have had of the changes in the rules concerning hire or reward operations and Transport Managers. The questionnaire is all about intelligence gathering albeit packaged innocuously as a means of ensuring details of the nominated Transport Managers are up to date and to gather some extra information about them.

The reality is information on Transport Managers and operators is going to be shared between EU Member States. Is there anything to be done about ths? No, absolutely nothing, unless you decide to operate outside the system which would of course be illegal or you downgrade to a restricted operation. The new Regulation only applies to hire or reward operations so non-hire or reward (Restricted) operations are spared. Behind all this intelligence gathering lies the new power for a Traffic Commissioner to direct regulatory action against a Transport Manager and to potentially declare him or her ‘unfit’. This declaration of unfitness would be entered into the UK national register of operators and the declaration would be shared with licensing authorities in other Member States. In other words an EU wide ban would be imposed until the Transport Manager’s repute was restored.

Transport Managers are to be categorised as ‘internal’ or ‘external’. An ‘internal’ Transport Manager will have a genuine link to the operator being a full or part time employee, director or owner. An ‘external’ Transport Manager will be a person under contract to an operator on a part time basis and who will only be permitted to work for a maximum of 4 operators with a combined total fleet of 50 vehicles (although Traffic Commissioners could set lower limits in individual cases). This requirement could really bite those operators who hire in consultants as their nominated Transport Managers. Imagine, overnight, the ‘external’ Transport Manager becoming non compliant because of a breach of the 4/50 rule! Imagine if you are that Transport Manager! National CPC will be abolished from 4 December 2011.

All new examinations will be required to test knowledge of both national and international operations However, national CPCs issued before that date will remain valid indefinitely and holders wishing to update to an international CPC will continue only to be required to pass an additional international module of the CPC examination. The rules regarding grandfather rights are changing too. Grandfather rights will only be granted to individuals providing proof that they have ‘continuously managed’ a road haulage undertaking or a road passenger transport undertaking for the period of 10 years before 4 December 2009. New claims for grandfather rights will not be permitted after 4 December 2013. An operator will need to ensure that their Transport Manager is able to provide evidence of his or her exemption. Transport Managers who are currently on an operator licence through grandfather rights will maintain those grandfather rights and will be issued with new certification automatically (i.e. a new ‘acquired rights’ certificate). In addition, the Office of the Traffic Commissioners will keep a master list of acquired rights holders.

What you have to appreciate is that at a Public Inquiry a Traffic Commissioner or Deputy can and will investigate the role a Transport Manager has played in connection with any breach of undertaking or non performance as regards the Operator Licence. This could potentially lead to a Transport Manager’s disqualification from being a Transport Manager.

On occasions we have advised in situations where the Transport Manager has clearly been trying his or her best but has run into difficulties with the ‘boss’. In such circumstances you could have a conflict of interest with your employer (the Operator) and it would be in your interests to be independently represented at the Public Inquiry. No, you don’t want to ‘diss’ your employer for obvious reasons but you need to think very carefully about safeguarding and protecting your own position.

Should I resign as Transport Manager?
Should I whistle blow?
What are my rights?
What are my obligations?
How should I handle myself at Public Inquiry?

These can sometimes be difficult questions that require very careful consideration. As experienced transport solicitors we can help you and may even be able to knock some sense into your employer. The stakes could not be higher and this new Regulation is going to focus some minds in 2012 and beyond.

If you are a Transport Manager you may be worried or concerned about what you have read in this article. If you need help or assistance with any issue relating to your role as a Transport Manager or generally in relation to the operator licence please get in touch.

Transport Manager’s Grandfather Rights

Transport Managers who held a Grandfather Rights certificate had until 20 November 2013 to apply for their new Acquired Rights certificate. Transport Managers who have passed a Certificate of Professional Competence – CPC – exam did not need to apply for Acquired Rights.

Application for transport manager acquired rights entitlement

Transport Manager Grandfather Rights (GFR) – which are used as proof of professional competence by people who have not passed Certificate of Professional Competence exams – changed from the 4th December 2011. The name was changed to Transport Manager Acquired Rights (AR) so it is clear that the renewed rights are issued in compliance with Article 9 of the new EU regulation on operator licensing (EC Regulation 1071/2009).

Only those with existing Transport Manager GFR are eligible to apply for Transport Manager AR.

The Regulation requires that a transport manager with AR has continuously managed at least 1 road haulage undertaking or a road passenger transport undertaking for the period of 10 years before 4 December 2009. Temporary breaks in the requirement for ‘continuous management’ are legitimate and unavoidable – for example to take account of long-term sick leave or maternity leave.

Many GFR holders, where the Department had sufficient evidence, and who were listed on an operator’s licence as a transport manager with grandfather rights, will have their Acquired Rights certificate sent to them automatically. This process began in November 2011. Only those who were not listed as a transport manager on a current operator’s licence need apply using the form. Note: Acquired Rights can only be granted up to 4 December 2013. You must have submitted your application and been granted Acquired Rights by this date.

Roadside Encounters

As a commercial driver, you might be asked to stop by the police or a Driver and Vehicle Standards Agency (DVSA) officer.

They now have powers to stop heavy goods vehicles, buses and coaches.The police and DVSA have the power to carry out spot checks on your vehicle for road worthiness and on you in respect of your drivers hours. Road worthiness related prohibitions will be issued if a defect or issue with the use of the vehicle (i.e. an overload, insecure load) has been identified that is safety related. An immediate prohibition prevents you from driving until you get the defect rectified. A delayed prohibition enables you to continue operating the vehicle but you must ensure that the defect is rectified within the stated period. All defects must be rectified and then submitted to inspection by the DVSA for clearance – this will involve either an inspection, partial test or full test.Police and DVSA officers can also issue fixed penalties in relation to defects or for breaches of drivers hours offences. Examples of fixed penalties include the following:

Examples of fixed penalties

The penalties if your vehicle exceeds its maximum permitted axle weight are at the time of going to print:

Vehicle overweight by	Penalty
5% to 10%	£100
10% to 15%	£200
15% to 30%	£300
More than 30%	Court summons

The penalties for drivers’ hours offences are:

Maximum daily driving time exceeded by	Penalty
Up to an hour	£100
1 to 2 hours	£200
2 or more hours	£300

It is both the driver’s and operator’s responsibility to make sure the vehicle is roadworthy and not overloaded and drivers hours rules have been observed. The driver must have done his daily walk around checks and completed his drivers daily defect sheet and reported any defects to the Transport Manager. The Transport Manager must have ensured that any road safety related defects have been rectified before the vehicle was allowed on the road. The daily driver defect sheet must have been endorsed with the fact the defect had been rectified.

Roadworthiness prohibition (PG9)

A PG9 is given for mechanical problems or for the condition of a vehicle’s bodywork and equipment. It could have an immediate or delayed effect depending on how severe the defect is.

Variation Notices (PG9A)

Variation Notices are used to alter certain details of an existing prohibition. This will normally be necessary following a subsequent inspection of the vehicle that reveals additional defects or where some but not all of the defects listed on the prohibition have been rectified. In addition to altering the list of defects, Variation Notices can alter the time and date of an existing prohibition by making a delayed prohibition ‘Immediate’ or vice versa.

Exemptions (PG9B)

Exemption Notices are issued to permit prohibited vehicles to proceed to a place of repair under controlled conditions once the prohibition has come into force. The conditions of movement will be detailed on the Exemption Notice. Examiners will normally issue an Exemption Notice only if in their opinion the vehicle can be moved to such a place without risk to public safety. You could get this if an immediate problem with your vehicle has been temporarily or permanently fixed at the roadside but others remain. It means you can return to your operating centre or garage to permanently repair the initial problem and other faults.

‘S’ marked road worthiness prohibitions

A prohibition whether immediate or delayed can be denoted with an ‘S’ mark if the vehicle examiner believes a defect is due to significant breakdown in the vehicle’s maintenance procedures. This could include evidence that a driver has failed to carry out a pre-use inspection of the vehicle or where the defect suggests neglect by both the driver and the operator – tyres worn so badly that the cord is exposed or excessive actuator travel or loose wheel nuts where detachment is imminent.

You wouldn’t get this type of prohibition for defects you couldn’t have known about before the journey, e.g:

a problem that could have occurred during the journey (e.g. a puncture or a blown bulb)
a problem you couldn’t reasonably have been expected to have noticed (e.g. an underside defect)

But you could get an ‘S’ marked prohibition if the examiner believes there’s been a significant breakdown in the maintenance procedures agreed in the form of undertakings to the Traffic Commissioner as part of the operator’s licence application.

The prohibition may be immediate and both the driver and the operator could be prosecuted. DVSA will usually follow up a ‘S’ mark encounter with an assessment of the operator’s maintenance procedures which means a site inspection – sometimes unannounced – leading to an adverse report which could then trigger a public inquiry before the Traffic Commissioner. In our experience whilst PG13F & G maintenance inspection report and summary of findings may indicate ‘generally satisfactory’ the Vehicle Examiner will invariably record in his report that goes to the Office of the Traffic Commissioner in Leeds that the Operator is not complying with its undertakings given a prohibition was issued. The Vehicle inspector is also likely to inspect other vehicle parked up in the yard or vehicles leaving or entering the yard. If vehicles have been parked up pending repair or planned inspection then unless it appears that the vehicle has recently been used on the road in a it should not be inspected. As with vehicles undergoing repair, the fact that the vehicle was off the road and claimed to be withdrawn from service should be noted on a prohibition, if issued, by endorsing it “AWAITING DISPOSAL” or “AWAITING REPAIR” but we advise operators in such situations to put a notice on the vehicle or trailer making it quite clear the vehicle is not in use. We also advise that a PMI sheet is endorsed with the vehicle details such as odometer reading and stating the date the vehicle was last used. This is helpful evidence should the Vehicle Examiner insist on inspecting a vehicle that is genuinely not in service.

Vehicles claimed to be withdrawn from use should generally not be examined or prohibited. Where there is doubt about an operator’s claim, vehicle examiners should seek firm evidence of non-use, for example evidence of de-licensing or the evidential material we have advised above. However, such evidence does not preclude an examination if it appears that the vehicle has been recently used, or it is likely to be used on the road in a seriously defective condition. In these circumstances a prohibition, if issued, should be endorsed with a comment to indicate that the vehicle was claimed to have been withdrawn from service but if you have clearly documented the vehicle being withdrawn from service the vehicle examiner really ought to ignore the vehicle concerned and not inspect it.

Tip – if a vehicle is over the inspection pit or in the work shop do not ever claim the vehicle has been inspected prior to being put back into service. The simple reason for this advice is that if the Vehicle Examiner inspects the vehicle and finds road safety related defects you could be inviting an ‘S’ marked prohibition because there could be no other explanation for the failure to spot the defect the inspector genuinely found other than serious shortcomings in the maintenance and inspection processes.

How to recognise a DVSA officer

DVSA officers wear yellow visibility jackets with either the VOSA or DVSA logo, and they’ll always carry a DVSA warrant card.

Their vehicles are marked with a black and yellow print on the side and either a VOSA or DVSA logo on the bonnet.

What happens when you’re stopped?

The checks are carried out either at the roadside or at dedicated testing sites. The checks are used to keep unsafe vehicles off the road.

The officer checks that the vehicle isn’t breaking any rules and regulations. This includes:

checking authorised load weights and type of load permitted
checking vehicles for roadworthiness and mechanical faults
looking at your tachograph records
making sure you have a valid occupational driving licence

Your vehicle could be impounded if you commit a series of serious offences.

Foreign-registered vehicles are subject to the same rules as vehicles registered in the UK.

If you’re carrying a high-value load you can keep your engine running, doors locked and windows closed until you’re sure you’ve been stopped by a genuine police or DVSA officer.

If you don’t stop

Not stopping when asked to by a uniformed officer is an offence. The incident will be officially recorded and you’ll be interviewed later on.

You may then face court action or be reported to the Traffic Commissioner, who may remove or suspend your operator’s licence.

What if a prohibition is issued?

As explained earlier a prohibition issued at the road side will either be delayed or immediate. It may even be ‘S’ marked signifying a significant maintenance failure. The imposition of a prohibition cannot be appealed but you are entitled to lodge a complaint and have the imposition reviewed. For example a vehicle is issued with a prohibition for an allegedly defective tyre or the brakes are assessed to be out of adjustment. Your driver, in-house or external mechanic may beg to disagree. It is always worth complaining if you disagree with the assessment of the DVSA vehicle examiner. These examiners are not infallible. They can make mistakes or exercise their judgement poorly. Vehicle Examiners are supposed to follow guidance contained within the “categorisation of defects” handbook. If they haven’t followed the guidance or the prohibition was issued in error your complaint is likely to be upheld and the prohibition expunged from your vehicle encounter history. Given these prohibitions are grounds upon which a Traffic Commissioner can take enforcement action against an operator’s licence it makes sense to challenge prohibitions whenever a challenge is merited. This is especially so in the case of ‘S’ marked prohibitions. Challenges need to be brought immediately otherwise DVSA will claim the vehicle has been interfered with and the defect rectified.

Before a prohibited vehicle can be used again on a public road the Prohibition Notice must be removed by the issue of a ‘Removal of Prohibition’ Notice (PG10). An examiner is allowed to remove a road worthiness prohibition when satisfied that the vehicle is “fit for service”. Accordingly, where a further more extensive inspection is required and the available inspection facilities are inadequate for that purpose, an examiner may direct the vehicle to a testing station for an inspection prior to removing the prohibition. Examiners are advised that “fit for service” must be taken as meaning that, if tested, the vehicle would comply with all the relevant annual test standards. The discovery of defects that would result in an annual test failure could be given as a reason for refusing to remove a prohibition.

Vehicles subject to the MOT test will normally be considered “fit for service” when they have passed the test and have been issued with a pass certificate (VT20/VT20W) dated after the date of the prohibition notice issue. In the case of heavy goods vehicles and public service vehicles, the law imposes the responsibility on the examiner considering removing a roadworthiness prohibition, of satisfying himself that the vehicle is “fit for service”. In law, examiners have absolute discretion over the scope of examination, which in their opinion is necessary for them to be satisfied that the vehicle is “fit for service”. This is clearly something that is open to challenge and there is an appeal process for cases where there is a dispute over the refusal of a vehicle examiner to clear a prohibition.

If you have concerns about the issue of a prohibition or its clearance call us immediately for some free initial advice as to what your options are.

This article will be of interest!

DVSA release 2015 figures for roadside encounters

New figures released by the Office of the Traffic Commissioner (“OTC”) show that almost a third of all DVSA roadside encounters with HGV’s and trailers last year were issued with a prohibition for a mechanical defect.

OCRS

The DVSA (formerly VOSA) uses the Operator Compliance Risk Score (OCRS) to aid their Examiners to target operators, by calculating who are more likely to be non-compliant when checked at the roadside. It enables the DVSA to prioritise certain investigations dependent on how high their OCRS is.

Scores are predominantly created using a historical score to begin with. This is accumulated after data is taken from annual tests, fleet check vehicle inspections, roadside inspections, any defects taken from these three, Prosecution and Legal Services records (advisory and prosecution letters) and even checks where no defects are found – although counted they will be worth nothing. These criteria are not concrete and factors such as fixed penalties, the quality of the vehicle and the monitoring system the operator has set in place may be counted too in the future.

Each of the events mentioned are entered as single events and are given a point rating based on their severity, events with no defects and offences garnering 0. An average is taken per event and this is called the ‘Index score’. These scores are compared with similar operators and are then ordered, giving a ‘Relative score’.

The worst 10% of Operators, those with a very low ‘Index score’, will have a relative score of 10. This method is repeated until the best 10% gain a relative score of 1. Of course, those Operators with all clear encounters (no defects or offences) will have a score of 0. The scoring process will be repeated weekly, so new operators are taken into account as are new vehicle encounters.

Beforehand, operators with no past performance are calculated a ‘predictive score’ using scores from operators with similar characteristics, not to worry though this only has a small influence until a real score can be obtained. Relative scores between 0-3 are colour coded green, 4-8 amber and 9-10 red. This information is made available at the roadside to VOSA Examiners and generally those scores that are red and amber will be subject to more checks than those with scores of green.

If an operator would like to improve their historical OCRS Index score, it is suggested they aim for as many clear encounters as possible. It should be born in mind however, that since the Index score is obtained from comparing similar operators’ historical scores, an OCRS may stay the same if these operators improve at the same rate.

Managing Your Employees

Having an effective disciplinary procedure.

Having an effective disciplinary process for managing drivers and fitters is fundamental to good housekeeping and keeping your Operator’s Licence. If you have no arrangements in place the Traffic Commissioners are unlikely to have much confidence in your ability to maintain effective control over key employees. We have encountered numerous occasions where drivers have dropped their employers in it. Our immediate reaction is always ‘did you discipline the driver?’. Evidence of a robust and working disciplinary system is an absolute necessity.

Driver involved in an RTA?
Driver speeding in own car?
Driver failing to adhere to drivers hours rules?
Driver persistently overloading?
Mechanic fails to spot obvious defect at planned safety inspection?

What action are you required to take?

We have a dedicated transport team including an employment specialist who can advise you. Our employment specialist has appeared at Public Inquiries on numerous occasions and knows the drill. Our team of experienced advocates are ready, willing and able to take on your case and steer you in the right direction.

Case study:

When Stefan Weig, managing director of Boxes and Packaging (Merseyside) Ltd, received a mailing from Dyne Solicitors, he knew they were the right firm to represent him at a Public Inquiry regarding his Operator’s Licence.

“Dyne Solicitors sent me a mailing asking me to consider using them for the Inquiry,” explains Mr Weig. “They sent me a really nice bunch of informative material and appeared very professional, so I decided to go with them.”

The corrugated fibreboard packaging manufacturer had received a detailed report from the Vehicle and Operator Services Agency (VOSA) listing all their shortcomings. Mr Weig gave this information to Dyne Solicitors, and they collated the information together.

Based on this, Dyne Solicitors came up with both a defence for the Inquiry and an action plan for the future.

“They provided us with a proper spring clean,” says Mr Weig. “Dyne Solicitors showed us how to do things in the future to avoid further enquiries, and provided all the templates and advice we needed.”

“As well as saving my bacon, they gave us a proper framework for our transport undertakings.

“I would absolutely recommend Dyne Solicitors, and have already done so to people I know, even though they are not under investigation. I tell them that if they ever get into trouble, for example with environmental enquiries, they have got to use these guys.”

Sometimes being a Transport Manager can feel like being a pawn in a game of chess!

The DVSA (formerly VOSA) uses the Operator Compliance Risk Score (OCRS) to aid their Examiners to target operators, by calculating who are more likely to be non-compliant when checked at the roadside. It enables the DVSA to prioritise certain investigations dependent on how high their OCRS is.

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