As a holder of a Goods Vehicle Licence does my business have to continually demonstrate that it has sufficient funds to comply with the “financial standing” requirement on the licence? Can details of the business’ finances be requested at any time and what happens if my business has insufficient funds? Is the licence at risk or are there ways of getting around it?

Businesses need to plan well in advance if they are considering making an application for additional vehicles or say an additional licence in another traffic area. During 2006 more and more operators were unable to prove the financial requirements in the first instance and their applications were determined at public inquiries. Ultimately, failure to prove finance can result in failures of applications, a reduction in fleet size and in some cases revocation of the licence. All instances could be commercially devastating. The Traffic Commissioners have no discretion to allow a licence to continue if there are insufficient funds.

Had an unsatisfactory visit from VOSA? Being called to an Inquiry? The main thing to do is act now!

When should my drivers do a DAILY DEFECT CHECK on heavy good vehicles ?
The formal phrase used to describe this element of defect detection is a "first use check". On EACH DAY of HGV operation the vehicle MUST NOT enter the public highway until it has first had key safety elements checked by the driver i.e.; lights, tyres wheel nuts, battery security, steering...

Current legislation permits an Inspector from VOSA to visit your premises at anytime and demand sight of vehicles and maintenance records. On occasions your local Vehicle Examiner may give you advance notice of the intended visit, which will allow you time to prepare.

Usually you will be asked to provide a sample of your vehicles for inspections as well as 15 months service and daily defect records.

How should I prepare ?

1. Have a full preventative inspection carried out on the vehicles to avoid any defects being detected which may result in a prohibition at the inspection. The VOSA Inspector may comment on the fact that the vehicles have clearly been "prepared for inspection" as opposed to being presented in their true state, but it is far better to avoid the possibility of prohibitions being attracted
2. Where possible offer your newest vehicles for inspection unless the Inspector specifically asks for your older ones
3. Clean and wash down the vehicles.
4. Scrutinise your maintenance records to ensure they are all in order. Many Operators instruct an outside third party with an expertise in Operator Licensing to carry this out
5. Ensure you have a 15 month run of service sheets, presented well in individual files for each vehicle. Where service sheets are missing see if your garage retained copies and insert copies or at the very least insert an invoice from the garage to show the service was done. Missing sheets can lead to VOSA assuming that the vehicle has not been serviced
6. Ensure you have a forward planning chart in place setting out at least the next service dates as well as mot and calibration dates (ie: other key maintenance dates)
7. Ensure you have a 15 month run of daily defect sheets (one for each day of operation), presented well in individual files for each vehicle
8. Ensure that your defect sheets have a section for " rectification of defects" which should always be signed off following repair. If not order new books.
9. Remember that omissions on service sheets and defects sheets such as no signature, tyre treads or brake tests not recorded are not items which you can go back and fill in at this stage. These are contemporaneous documents and you should always check these immediately after the event (ie after the service) and deal with any omissions at that time.
10. Ensure that all the records are readily available at the time of the Inspection and can be easily found in the Transport Office by the VOSA Inspector
11. Ensure that your transport manager or the individual who deals with the maintenance systems is present at the VOSA inspection
12. Be cooperative

The Inspection will be marked "UNSATISFACTORY" if defects are found on the vehicles or gaps in the service and defect reporting history are reported. These will be viewed as a potential breach of the Operator Licence to keep the vehicles fit and serviceable, to maintain them at specified intervals and to ensure there is s system for daily detection of defects. This finding will be reported to the Traffic Commissioner for disciplinary action quite often at a Public Inquiry.

Practical advice on managing your Operator Licence is provided by Elizabeth Caple, Transport Law Solicitor. elizabeth.caple@blueyonder.co.uk
0117 9075699 0781 441 4374

Driver Hours Tacho Rules . Can you account for your 21 day history?

It is a drivers’ personal responsibility to hold tachos in the cab for the last 15 days and the current week hence up to 21 days. VOSA show very little patience for failure to produce and will issue a prohibition which could lead to criminal prosecution.

On 2nd July 2007 the regulations to facilitate the new Community Drivers' Hours Regulation EC 561/2006 came into effect after some delay.

These regulations
- list the various vehicle exemptions to the EU drivers' hours regs,and
- define the UK defence available to transport undertakings who otherwise will be automatically liable for the offences committed by their drivers ( and hence liable to prosecution themselves).

The regulation is 2007/1819. The full title is: Community Drivers' Hours and Recording Equipment Regulations 2007

Tim Ridyard is a partner, road transport lawyer & Higher Courts advocate, at Ipswich-based Barker Gotelee Solicitors. www.barkergotelee.co.uk

“A Vehicle Examiner from VOSA recently advised that I need to implement “quality assurance measures” with regard to my Operator Licence. What does this mean?

The Department for Transport will shortly publish no fewer than eight draft regulations covering the Graduated Fixed Penalty and Deposit Schemes likely to come into force in April 2009. These are the detailed provisions which will detail how police/ VOSA will carry out the new procedures for both UK and foreign drivers operating within the UK. VOSA will for the fist time have powers to issue fixed penalties and endorse driving licences. Drivers without satisfactory UK addresses will be required to pay roadside deposits failing which their vehicles may be immobilised pending payment. The draft regulations will be accompanied by a new consultation period for the road transport sector which is likely to continue until around mid-October 2008. Tim Ridyard, Solicitor, Barker Gotelee Solicitors, Martlesham Heath Ipswich tim.ridyard@barkergotelee.co.uk

As anticipated the DfT has today published the next consultation document on graduated fixed penalty, financial deposit and immobilisation schemes, together with 8 draft statutory instruments to introduce the schemes. The consultation will run until 17 October 2008. More details and comment to follow in due course. Please see previous blog entries for further comment.

Tim Ridyard, Solicitor, Barker Gotelee (Tel 01473 611211)

A further Road Safety Act 2006 Regulation, introducing the much anticipated new police and VOSA powers (fixed penalties and roadside financial deposits)between January and April 2009, has been published - Statutory Instrument 2008/3164 Road Safety Act 2006 (Commencement No. 5) Order - 8^th December 2008.

• New power to graduate fixed penalty amounts according to type, degree of offence (i.e. varying amounts of £60, £120 or £200 to be introduced in Spring 2009).
• Power to vary number of penalty points endorsed on driving licences according to type, location, severity of offence and location of offence.
• New power for vehicle examiners (i.e. VOSA) to issue fixed penalty notices.
• Requirement for goods and passenger operators to notify the Traffic Commissioner of certain fixed penalty notices ( in essence the ones under the new GFP scheme).
• New system of driving licence endorsement - power to issue endorseable fixed penalties to non-GB driving licence holders through checks of their 'driving record'.
• Police and VOSA power to require financial deposit payment by drivers without satisfactory UK address (intended to enforce against foreign drivers who otherwise have been able to avoid fixed penalty/ prosecution in the UK).
• Power for Police/VOSA to immobilise vehicles subject to a prohibition (again, primarily directed at foreign drivers).

Our current understanding of the scheduled commencement date for the introduction of graduated fixed penalties and financial roadside deposits is that it will now start on 1^st May 2009.

If you require further information about this then please contact Tim Ridyard on tim.ridyard@barkergotelee.co.uk or at www.barkergotelee.co.uk.

Changes are afoot as the European Commission proposes to amend the Working Time Directive for Mobile Workers (2002/15/EC) - the Department for Transport consultation will run until 27 February 2009 and anyone may respond. The main items of interest are proposals with regard to 'self-employed' workers and night work.

Self-employed You will recall that when 'working time' was introduced into the road transport sector self-employed mobile workers were excluded until 23 March 2009.  The European Commission has now concluded that the imposition of working time on all self-employed mobile workers is in fact unenforceable.  At the same time, it wishes to deal with 'false' or 'sham' self-employment - mobile workers in the road transport sector are not self-employed simply because they give themselves that label.  ( All business should always be alert to this issue in any event, not least for employment law and tax and national insurance purposes.)

The proposal is therefore to re-define what a 'mobile worker' is.  The idea is to make it easy to categorise whether a mobile worker is or is not self-employed.  A self-employed driver will mean anyone whose main occupation is to transport passengers or goods by road for hire or reward and who is entitled to work for himself and is not tied to an employer by a contract of employment or by any other type of working hierarchical relationship, who is free to organise their working activities, whose income depends directly on profits and who has the freedom to have commercial relations with several customers. 

The UK Government does not believe that truly self-employed workers should be brought under the umbrella of working time, as it is difficult to enforce the rules against them.  Interestingly, the Government notes that genuinely drivers will still remain subject to the EU Drivers' Hours Rules, the purpose of which is to prevent tiredness and guaranteed breaks and rest periods - it will be recalled that a major criticism of Working Time has always been that it serves little purpose as EU Drivers' Hours Rules already exist to guarantee that shift times cannot exceed safe hours of work - hence, one might might well query the purpose of Working Time for mobile workers in the road transport sector!

Night Work Limits Currently HGV mobile workers who work between midnight and 04:00 or PSV mobile workers who work between 01:00 and 05:00 are 'night workers' limiting their working time to 10 hours in any 24 hour period, whenever this occurs (though it can be amended by agreement).

The proposal is that mobile workers would not be regarded as night workers unless they worked a minimum of 2 hours during their core 'night' period i.e. shorter periods would be disregarded.  This would also align road transport night working with mainstream working time arrangements.  The Government concedes that businesses might find record-keeping and compliance with this more cumbersome but it would alleviate the problem of workers simply because they 'dipped into' night work.

Enforcement The European Commission wishes UK and other EU Member States to introduce appropriate working time enforcement systems.  The consultation states that VOSA already adopts "a robust enforcement regime towards Working Time".  In practice this certainly does not appear to have materialised in terms of prosecutions or disciplinary public inquiries held by Traffic Commissioners.  It appears that in reality both VOSA and operators remain primarily concerned with ensuring the EU Driver's Hours Rules are complied with and that still appears to be the real focus of VOSA when looking at drivers' hours compliance at fleet/ operator inspections.

The full proposals and consultation documentation is to be found at www.dft.gov.uk/consultations/open/mobile/consult.

For further queries please contact Tim Ridyard on tim.ridyard@barkergotelee.co.uk or on 01473 617309. www.barkergotelee.co.uk

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Tim Ridyard
© Barker Gotelee

Graduated Fixed Penalty, Financial Penalties Deposit and Immobilisation Schemes: Start date April 2009 and New Regulations

The regulations which introduce new fixed penalties, financial penalty deposits and immobilisation, removal and disposal of vehicles have now been published and come into force on 31st March 2009.

VOSA does not appear to be implementing commencement of this scheme until May (probably May 28th) various police constabularies have indicated to us they anticipate they will commence enforcement under the schemes with effect from 1st April 2009 onwards. Therefore drivers should be aware of this and plan accordingly.

These newly published regulations list new fixed penalties not previously covered by earlier fixed penalty schemes dealing with domestic and EU drivers' hours rules and tachograph use, prohibitions of foreign vehicles, fail to hold O licence, community authorisations and cabotage etc.

Separate regulations list the amount of £200, £120 and £60 to be imposed for each specific new fixed penalty offence - drivers' hours offences and overloading offences are graduated in penalty according to seriousness.

There are separate regulations for financial roadside deposits. These regulations list all the offences (including ones previously dealt with under fixed penalties by the police) which are to be the subject of this scheme and sums of £200, £120, £60 may be required from drivers without a satisfactory UK address; there are also £30 penalties under this scheme. Where such a driver is to be prosecuted, they will have to pay a deposit of £300 for a maximum 3 offences i.e. £900 as a surety aginst any future fine.

Separate regulations deal with immobilisation, removal and disposal of vehicles. In short, where a vehicle has been prohibited from being driven under the Drivers' Hours Rules, vehicles are unfit or overloaded or where no financial deposit has been paid the immobilisation of the vehicle can take place. There are fees for release of vehicle and removal and/or disposal.

If you require further information about this then please contact Tim Ridyard on tim.ridyard@barkergotelee.co.uk.

We have recently seen a number of cases highlighting the importance of ensuring that there is proper insurance cover for driving in the course of a business. It emphasises the importance of businesses redoubling their efforts to ensure there is proper insurance cover:

1. Does each and every driver definitely have the correct driving entitlement for the vehicles they are driving? Only through a rigorous check can this be proved. Such checks need to take place regularly with original licences being scrutinised - we suggest at least every six months at most and operators should also insist that driver declare any fixed penalties or convictions as and when they arise. Now that the Driver CPC Scheme has started it will be necessary in due course to check drivers have maintained their existing rights and newly qualified drivers are properly documented. In a recent case a driver had been driving larger vehicles for many years without the correct entitlement, invalidating the insurance, but the lack of entitlement had gone unnoticed by several employers.

2. A lack of insurance creates particular problems for those who trade as partnerships or sole traders - this is because a lack of proper insurance cover leads not only to the potential offence of driving with no insurance on the part of the driver (see below) but the offence of permitting driving with no insurance. This attracts the same penalty as driving with no insurance. Therefore, a partner or sole trader who is the operator runs the risk of a minimum of 6 penalty points on their personal driving licence if their driver is uninsured. The penalty range for driving with no insurance is 6-8 penalty points or a discretionary disqualification. If the operator is a limited company then of course it holds no driving licence of its own and hence the problem does not arise as the directors will not be prosecuted personally.

3. A driver whose employer deliberately or inadvertently does not ensure there is insurance cover for the vehicle they are driving may have a statutory defence in law. If a driver is driving in the course of their employment and fulfils other criteria then the court cannot convict them of any offence of no insurance. This is intended to protect genuine employees whose employers have failed to provide proper insurance cover. Onee difficulty here is that fixed penalties now also cover the offence of driving with no insurance so an employee driver may accept (i.e. pay) a fixed penalty offer in the sum of £200 and have 6 penalty points endorsed on their driving licence unnecessarily when they may have a perfectly good defence for the reasons explained. Drivers issued with fixed penalties for offences of driving without insurance when they are driving as employees should contest such cases in court, to avoid a large number of penalty points, increased insurance premiums and of course the risk that the 6 points may be added to other points on their licence and create a totting up situation.

4. Problems arise in some instances where vehicles are put on and off cover and there are changes in the vehicle fleet leading to inadvertent lack of insurance cover (and hence the driver driving uninsured). All operators should be absolutely meticulous in their paperwork and at all times keep the most careful notes of conversations with brokers and insurance companies to ensure there are no difficulties of this kind.

Tim Ridyard is a Partner, Road Transport Solicitor based at Barker Gotelee Solicitors. tim.ridyard@barkergotelee.co.uk and www.barkergotelee.co.uk