The Department for Transport created a crisis in community transport with its decision to begin enforcement of Regulation 1071/2009. One of the architects of the change gives his views on it
Community transport is in the news, and for the wrong reasons. The decision by the Department for Transport (DfT) to enforce EU Regulation 1071/2009 (see page 5) represents a hammer blow to the sector.
But why has the DfT changed its mind on something that was previously tolerated? It’s because of a concerted effort by the Bus and Coach Association (BCA), led by Martin Allen.
Martin says that both his own and other businesses have suffered “huge damage” thanks to local authorities (LAs) awarding tenders to Section 19 permit holders.
“A friend lost 10 contracts. They were removed and awarded to an operator using permits. A year earlier, he invested over £200,000 in vehicles. Withdrawal of the contracts ruined his business.”
While unpleasant for the operator, if contract loss came via a fair process, it could be put down to normal competition. But it wasn’t, says Martin. Instead, it was part of what he calls “clear and blatant abuse” of permits.
What is important to note is that neither Martin nor the BCA have a vendetta against community transport organisations (CTOs).
Instead, he views the BCA’s crusade that led DfT Head of Buses and Taxis Division Stephen Fidler to announce the prohibition of competitive tendering using permits as being about O-Licenced operators standing up for their businesses and demanding that the law is enforced. No more and no less.
BCA: No regrets
The BCA has amassed evidence, seen by miniplus, proving that the DfT and other bodies have been aware of the the Regulation’s provisions for a number of years.
“I accept CTOs’ arguments that they tendered in good faith, but to that I reply that they should have been better advised.
“The powers that be have known about the Regulation for a long time. It has been EU and UK law since December 2011.”
The BCA first made a complaint about lack of enforcement in 2014, and it has email evidence that the European Commission (EC) told the DfT that “all was not well” with its interpretation of the Regulation at around the same time.
The DfT was also informed that the “blanket approach adopted… will need to be adjusted to avoid mitigation proceedings.”
The EC indicated that it would rather settle matters via dialogue, but the long-suggested Reasoned Opinion would have caused the DfT a problem had it been delivered; as it is, the department’s U-turn means that it will not be forthcoming.
“Had the Reasoned Opinion arrived, it would have left the government open to fines and compensation claims. There is no legal basis on which the Opinion could have agreed with the DfT’s stance. Operation of tenders using permits is outside the law. The Regulation is clear on that.”
Backed into a corner
Unhappy with the speed at which things were proceeding, in 2016 the BCA complained to the Traffic Commissioner about a CTO. It is the same complaint referenced in Stephen Fidler’s letter and it was passed to the DVSA.
“The DVSA was reluctant to carry out an investigation, but it agreed to do so. It first claimed insufficient evidence, despite our Freedom of Information requests demonstrating the opposite.”
Martin alleges that this, combined with pressure from European authorities, left the DfT with no choice other than to change its stance on the abuse of permit regulations.
Evidence seen by miniplus shows that the DVSA found that the subject of the complaint had “not been complying with legal requirements, including reliance on Section 19 permits.” It is believed that the CTO has not disputed theses findings.
“If the DfT had dismissed the DVSA’s report, it would have been open to a legal challenge that we would have won,” says Martin.
Legal action remains a possibility if the DfT’s consultation into the affair changes its current view of enforcement. Should that occur, the BCA will pursue a judicial review.
Was is worth it?
Martin reaffirms that the BCA is not pursuing a vendetta against CTOs.
Instead, blame lies at the DfT’s door. He alleges that it did everything possible to delay enforcement in the hope that the BCA would drop its case.
“I take no pleasure in this. It has affected my health. But we forced the DfT to accept the law. We knew that we were right, but we have had doubts about the merits of doing what we have done.
“CTOs may think that we have over-reacted, but there have been many other avenues that the DfT could have pursued to obtain a resolution. It chose not to do so.”
The BCA’s lawyer’s view is that the in view of EU scrutiny, the DfT must now enforce the Regulation. Bodies ignoring it will open for prosecution, and there is also an issue of insurance invalidation.
“There will be no backing down. The threat of the EU is pending and the BCA will pursue a judicial review if it is not enforced. That would be a simple matter for a court to rule on.”
Would Martin do the same thing again? No, is the simple answer. “Sometimes I think I should have walked away. I’m four years from retirement. But we stood up for what we believe in: A level playing field. It’s nothing personal.”
