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No wonder you’re confused, part one: D1 licencing for school minibuses - Blog Post

No wonder you’re confused, part one: D1 licencing for school minibuses

- 01-Nov-2017 -

We aim to help clarify D1 licencing for teachers and bursars, school transport managers and administrators, in schools, colleges and other educational institutions. We welcome discussion and debate on social media, or feel free to email or call us to talk more.

This article will help clarify the situation regarding minibus driving and licencing. Whether you are an employed or volunteer driver, or following Government guidelines or in consultation with a lawyer over when a full D1 licence is required...

Castle Minibus launched the national campaign ‘Great than 8’ in September in the hope of ending the confusion as to what schools and teachers are legally required to have to drive a minibus. Is it a full Operators licence or a Section 19 permit, a standard driving licence (B) or a D1 licence?

As we talk to more and more schools, councils, driving associations and various bodies about this issue the more contradictory we find the written advice. We knew this all along, which is why we’re campaigning for a solution that will end all questions; close all loop holes and protect drivers, passengers and road users alike.

There has never been a legal test case for the issues D1 licencing flags up and schools rightly rely on the advice given from their local authorities. Some authorities rely on the advice from the government, whereas others have sought independent legal advice to create their schools minibus policies. You will see that the government advice and legal advice is conflicting.

To be fair the government’s guideline documents state

‘This advice does not constitute legal advice nor is it a ruling on the law: individual, schools etc should seek independent legal advice on these issues if they have any queries or concerns’

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/494266/Driving_school_minibuses_and_advice_for_schools_and_local_authorities.pdf

But there will always be the assumption that the government has done its homework and would not be giving advice or recommending a course of action that was illegal or not possibly best practice.

Whether by the end of this piece you decide to support our campaign, and sign our petition or not, we will set out the conflicting advice we’ve found because we want staff, parents, teachers and governors to start asking questions of their schools and councils to get this issue discussed and legal advice sought, to protect everyone.  

Section 19 and Section 22 permits

If you were a commercial minibus company, or a `for profit only` independent school, you would need a full Operators licence (PCV) with an appointed qualified transport manager, the drivers must have a full D1 licence and a CPC certificate, plus they must attend 35 hours of training in a 5 year period and finally all the minibuses must be fitted with a digital tachograph. But (non-fee paying schools or a fee paying school with charitable status) can apply for a Section 19 permit so that they don’t have to have a PCV licence or all that is described above.

‘Section 19 and section 22 of the Transport Act 1985 allow organisations that operate in GB without a view to profit to have a permit which exempts them from the need to hold a PCV operator’s licence when providing transport for a charge. Under specified conditions, the drivers of certain vehicles are exempt from the need to have PCV entitlement on their driving licence.’

https://www.gov.uk/government/publications/section-19-and-22-permits-not-for-profit-passenger-transport/section-19-and-22-permits-not-for-profit-passenger-transport

(We will not go into the storm that is brewing about charitable status companies taking on commercial work with untrained drivers, that is for another day, but is yet another issue a change in the law will solve.)

So, you don’t need a PCV licence but do you need a D1 licence?

What the DVLA states as minibus licencing requirements (https://www.gov.uk/driving-a-minibus)

‘You might be able to drive a minibus if you hold a car driving licence and meet certain conditions - otherwise you’ll need to apply for a minibus licence. [The D1]

You might be able to drive a minibus with up to 16 passenger seats using your current car driving licence as long as there’s no payment from or on behalf of the passengers (it’s not for ‘hire or reward’).

Conditions you must meet

You can drive a minibus within the UK as long as the following conditions apply:

  • you’re 21 or older
  • you’ve had your driving licence for at least 2 years
  • you meet the ‘Group 2’ medical standards if you’re over 70 - check with your GP if you’re not sure you meet the standards
  • you’re driving on a voluntary basis and the minibus is used for social purposes by a non-commercial body
  • the maximum weight of the minibus is not more than 3.5 tonnes - or 4.25 tonnes including specialist equipment for disabled passengers, for example a wheelchair ramp
  • you’re not towing a trailer’

What does this mean?

From an initial look it seems that teachers/school staff can drive a minibus on a full category B (car) licence provided it’s not for reward or hire, is driven voluntarily and the minibus is less than 3.5 tonnes (an additional allowance of 750 kgs is permitted only for the fitting of specialist equipment, wheelchair access for disabled passengers for example).

However, the problem comes with the definition of not for reward or hire, voluntary basis and for social purposes.

The government document ‘Driving school minibuses - Advice for schools and local authorities’ https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/494266/Driving_school_minibuses_and_advice_for_schools_and_local_authorities.pdf)

states that

‘A minibus is not being used for hire or reward, for example, where the pupils are not obliged to pay in exchange for the right to be passengers. This applies where independent schools with charitable status, Free Schools and academies use a minibus not for a passenger service on a commercial basis but to take pupils off-site for trips within the school day or as an extra-curricular activity, where the pupils do not pay for their transport.’

It also has a definition of voluntary basis

‘10. In our view, if the terms and conditions of a teacher’s contract of employment state that driving minibuses is a part of their duties, or if a teacher is paid an additional sum specifically for driving the minibus (other than a sum to reimburse the teacher for out of pocket expenses on a cost recovery basis), such staff would be deemed as receiving payment for driving a minibus and would not be driving the minibus ‘on a voluntary basis’. In these cases, a full D1 licence (or a full D licence) would be needed.

11. However, in our view, if a teacher’s contract of employment does not state that driving minibuses is part of their duties and they receive no additional payment for driving a minibus to take pupils on trips or to social sporting events (except for reimbursement for out of pocket expenses), they will be driving on an extra-contractual, voluntary basis. In this case, the category B licence would suffice (assuming the conditions are met) even if the school reimburses the teacher for fuel, parking and tolls.’

According to this government advice teachers are volunteers; unless otherwise stated in their contract, school trips are not for reward or hire if the children aren’t obliged to pay for transportation and social purposes means anything non-commercial.

‘We consider social purposes to mean non-commercial activities. This includes school trips and travel to sporting fixtures within the school day or as an extra-curricular activity.’

But for those who sought legal advice on the definitions, such as Hertfordshire County Council, the advice is very different. HCC are very clear on their website (https://www.hertfordshire.gov.uk/services/highways-roads-and-pavements/speed-awareness-and-driver-training/minibuses-in-hertfordshire/minibuses-in-hertfordshire.aspx#DynamicJumpMenuManager_1_Anchor_4)

‘If you drive for your employer, your licence must include category D1.

This includes teachers and school staff, during the school day or out of hours. That's because you're at work, being paid and your journeys are official business.

There is an exemption for volunteers without D1 on their licence. However, our legal advice is that this exemption does not apply to teachers and school staff.’

They give more detail on their legal advice; (http://www.thegrid.org.uk/info/healthandsafety/minibus.shtml)

‘Our position is based on legal advice from the council’s solicitors taken in 2000, which has been reviewed periodically in 2006, 2010 and 2011. Their view continues to be that the only reason a teacher is driving a school minibus is because of their paid employment with that school. This includes driving outside of school hours and at weekends, since a teacher’s contract does not state daily hours of working, only an annual number of hours of “directed time”. They are therefore “receiving payment or consideration” since their salary cannot be considered “out of pocket expenses”.

Our former Director of Education wrote to the DfES in 2002 about the matter and the reply from the then Minister for Schools, concurred with our solicitor's view that teachers needed to hold category D1 entitlement on their licence, they are not eligible for the exemptions that apply to the voluntary sector, and he could not see a case for exempting them. HCC’s view is shared by a number of other local authorities.

Without D1, the risk remains that an employee could be prosecuted for driving without a valid licence, and HCC could then be prosecuted for causing or permitting someone to drive unlicensed. If convicted, there could be a heavy fine, court costs and the added implications of negative publicity.’

Now, D1 licences can be inherited. Those who passed their driving test before January 1997 will have a category D1 (101) on the back. However, the 101 is a restriction on the category ‘not for hire or reward (that is, not to make a profit)’ https://www.gov.uk/driving-licence-codes

So, even teachers who are driving on a D1 inherited licence, if it is decided that as a paid employee they are in fact driving for reward as part of their remunerated role, would be breaking the law.

It seems the safest answer to end all this confusion is for all school staff and teachers to take the full D1 test to ensure they are not only trained and experienced minibus drivers, but who have taken a medical, sight test, theory and practical exam so that they are legal to drive the school minibus beyond a shadow of doubt.

The only other loophole here to drive a minibus without a D1 licence (of any kind) is a `light weight` minibus that was designed specifically to be as light as possible, meaning essential safety features such as side protection impact bars are not included. Safety features such as these are not currently a legal requirement, but it means there are school staff driving what is essentially a converted panel van on a normal B (car) licence with no additional driver training. Our campaign might also put an end to this almost duplicate level of risk some schools unwittingly take to save money.

Budget within schools is always a dominant factor. It is not cheap to put a member of staff through the D1 licence, costs are being quoted anywhere between £1,000 to £1800 and time away from school. Perhaps this is why so many schools simply follow government advice and interpret the guidelines to suit.

Remove the exceptions that are open to interpretation and you are left with a choice of two answers to school minibus licencing requirements: A full D1 licence, not the inherited D1 (101), plus a section 19 permit if you are a non-fee-paying school, or a PCV with D1 and CPC if you are a fee-paying school (unless you have charitable status). It should be that simple. Unfortunately, it is not.

If you’re taking the government’s advice, then please do so completely and get legal advice. If you don’t have that legal advice, or the advice you have concurs with what we are campaigning for; that all those driving 8+ passengers should take the D1, then please sign our petition here, and start asking questions of ‘the powers that be’ to protect yourself, your staff, pupils and your reputation.


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