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Section 19 and 22 Permits – what is going on? How will it affect schools and the licencing requirements? - Blog Post

Section 19 and 22 Permits – what is going on? How will it affect schools and the licencing requirements?

- 03-Nov-2017 -

Arguments over establishing a level commercial playing field between bus and coach operators and not-for-profit community transport providers who operate under a section 19 or 22 permit has led to a new inquiry by the Transport Commission into the licensing arrangements for community transport minibuses and the broader sustainability of the community transport sector, to which Castle Minibus has submitted their opinion.

Chris Maynard of Castle Minibus limited submitted opinion on how changes to the section 19 and 22 permits might effect schools to the Transport Department's Select Committee on 3rd November 2017.

 

Section 19 and 22 Permits – what is going on? How will it affect schools and the licencing requirements?

Arguments over establishing a level commercial playing field between bus and coach operators and not-for-profit community transport providers who operate under a section 19 or 22 permit has led to a new inquiry by the Transport Commission into the licensing arrangements for community transport minibuses and the broader sustainability of the community transport sector, to which Castle Minibus has submitted their opinion.

Normally, an organisation operating in Great Britain that accepts any sort of payment for providing transport to passengers must hold either a public service vehicle (PSV) operator’s licence or a private hire vehicle licence. However, organisations that provide transport on a ‘not-for-profit’ basis can apply for permits under Section 19 or Section 22 of the Transport Act 1985. Because holders of the section 19 and 22 permits don’t need a PCV operator’s licence or the costly regulations including DVSA maintenance and standards plus the drivers must also have CPC (Certificate of Professional Competence) qualifications, their low operating costs enable them to be more competitively priced when bidding for publicly funded contracts, sometimes encouraged by local authorities looking to make the most of scarce funding.

A call for written evidence was made to be submitted from interested stakeholders before 3rd November 2017. Although not involved in the community transport sector directly Castle Minibus was urged by other stakeholders directly involved such as Martin Allan, the individual who is the official complainant regarding state aid and how it has been used by councils to award contracts to organisations operating under the guise of `not-for-profit` or charitable status, effectively under cutting professional transport providers out of the market, to make a submission.

As with all minibus licencing issues there are several stands, issues and confusing clauses that muddy the waters and lead to the exploitation of loop holes that invariably also compromised safety. The Greater than 8 campaign is focused on the D1 licence and not section 19 but the issues are definitely linked and with that in mind Castle submitted the following;

Castle Minibus specialise in the provision of minibus leasing and driver training in the education sector. The evidence submitted is focused on the current issues the education sector has with the section 19 permits.

Executive Summary

  • Education sector is confused about permit and licence requirements
  • No definitive legal advice from government on licence requirement
  • Implications of the definition of volunteer and ‘reward or hire’ on education sector
  • Government advice is currently contradicted by legal opinions
  • Section 19 permit seen as a ‘get out of jail free’ card and nothing more
  • No education or understanding of section 19 requirements

 

The effectiveness of the DfT, DVSA and Traffic Commissionersguidance to, and regulation of, community transport

Whilst I have not been on the receiving end of official guidance from the DfT, DVSA (formerly VOSA) or Traffic Commissioners, we do speak to schools on a daily basis and their staff, bursars and transport managers are still as confused as ever as to what permits they require, what licences their staff should hold, and what their responsibilities are, under a section 19 permit.

Although it is widely known that `not-for-profit` schools need a Section 19 to operate a minibus without a PSV operator’s licence, they don’t understand the expectations or obligations that come with that licence, because it is so easily obtained and compliance is rarely checked within the education sector.

In 2008 the DfT sought to make changes on the distribution of section 19 and 22 permits that would create ‘a robust and streamlined administrative system to ensure that those entitled to operate with these permits can do so without unnecessary burden’. (http://www.transportoffice.gov.uk/crt/repository/permit%20leaflet.pdf)

But the distribution of permits remained chaotic and unchecked, with the DfT still having no way of tracing who had been granted the permits. With no records of who holds them, how can the conditions of the permit be checked or enforced?

This level of unrestricted and uncontrolled access to the permits has led to a complete lack of education and understanding about what it means to hold a Section 19 permit, what to do with the permit itself, what your obligations under that permit are, and therefore what the implications of any changes to that permit could mean to them as a school.

The safety, security and service quality implications of licensing community transport services via such permits

Section 19 permits requirement demand a high level of maintenance and safety checks that schools are currently not necessarily aware of and are therefore not completing. Part of our business is now focussing on educating the education sector as to their obligations under Section 19 permits; daily walk rounds with a 52 point check, 10 week routine checks, record keeping and logging of any defects and remedial works, which are held for 15 months. (10.3 Vehicle safety inspections and routine maintenance checks 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#annex-2---recommended-maintenance-arrangements)

The same point in the document also states ‘Staff carrying out safety inspections must be competent to assess the significance of defects.’

In our experience not only are schools unaware of the requirements under the section 19 permit they don’t have anyone who is ‘competent to assess the significance of defects’.

We don’t have quantitative evidence of the lack of understanding or knowledge in the education sector but commercially there is a need for our services to provide the competence and administrative support needed to full comply with the section 19 permit. The general assumption is that the permit simply negates the need for a PSV operator’s licence, and that there are no further requirements.

Our concern is that the majority of those operating under the section 19 permits are not completing the necessary safety checks and paperwork and don’t have the training or access to the competent person required, to spot potential issues with the vehicle. This not only leaves drivers and passengers at risk on the roads but could potentially lead to avoidable prosecution should the worst happen, and they weren’t able to produce adequate records.

The evidence that this is the case in schools is the fact that we have built a commercially viable business on providing a service to enable schools to remain compliant as they don’t have the knowledge or capacity to do it themselves.

Impact of permits and their definitions on minibus driver licencing requirements

On a wider level of safety the use of these permits to licence school minibuses under the umbrella of community transport has led to confusion in the interpretation of who is a volunteer, what is a social activity or a social kindness, and this in turn leads to confusion as to what licences teachers or school staff need to obtain.

The majority of schools apply for a section 19 permit so they can operate a minibus for educational and extra-curricular purposes, rather than transporting children to and from school, but there is confusion as to what is reward or hire and government advice is open to interpretation and is contradicted by legal advice.

Section 19 permit, the government document (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) states ‘Hire or reward takes place if the journey is organised in a way that goes beyond the bounds of mere social kindness’

Is a school trip ‘mere social kindness’? This is not clear, but the education sector is eligible for Section 19 permits.

Debate around the section 19 and 22 permits stems from the abuse of not-for-profit status where permit holders avoid the operating costs of a PSV operator’s licence and putting their drivers through (unrestricted) D1 licence training.

An additional effect in the education sector has been that because the permits are available to schools alongside social and voluntary organisations, schools then assume that because they are classed as not for profit, their staff are not driving for reward or hire and are in fact voluntary drivers and that all school trips are social.

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 specifically 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.

(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.’

Because the current permit’s definitions are written to include schools, not-for-profit operators, charities and volunteer drivers, there are no clear definitions that aren’t open to interpretation and couldn’t be refuted in a court of law. This has led to drivers under the Section 19 permit driving with an inherited restricted D1(101) licence or on a category B licence with no additional training on driving or maintaining a minibus.

Suggested approaches to the funding, commissioning and licensing of community transport

Our recommendation is that anyone driving for their employer, regardless of their job description or contract should be held to a certain level of professional standard so that the employer prioritises training and safety whether this be PSV or something similar, and a full D1 licence for those driving 8 or more passengers.

Section 19 and 22 permits are widely considered as the ‘get out of jail free’ cards to avoid proper training. Permits should be granted only after reassurance that the obligations and requirements of the permits have been fully understood and organisations have the capacity, then checks should be made to ensure their obligations are being fulfilled.

If there does need to be exceptions for voluntary organisations that don’t have employees or not-for-profit organisations that are providing a ‘social kindness’ service then each permit needs to address the exact needs of the sectors applying for them, be they schools, voluntary organisations or not-for-profit entities, and be tracked, monitored and regulated to ensure safety is maintained and exploitation is impossible.

 


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