DfT’s ‘continued stalling’ over interpretation of Section 19/22 permit rules could see the Bus and Coach Association take the Government to court to achieve a definitive answer; JR application expected ‘soon’
Can operators using the Section 19 and 22 provisions in the 1985 Transport Act legally undertake commercial contracts, such as home-to-school, or should they have an O-Licence?
This is the thorny question that the Bus and Coach Association (BCA) has been seeking a definitive answer to for five years.
Now, in the face of what it argues is “continues stalling” by the Department for Transport (DfT), the BCA says it may seek a Judicial Review “within days” on the matter. The DfT’s refusal to engage has led the BCA to send one “last letter before action.”
It wants the DfT to explain its reasons for what the BCA’s Martin Allen calls “a complete non-enforcement” of the law, and requests that a definitive verdict on the definition of ‘non-commercial’ is provided.
Mr Allen claims that for-profit work is rife among Section 19/22 Permit holders and their drivers are usually paid, meaning those organisations do not meet driver licensing requirements.
Permit holders have long argued that making a profit from a contract does not equate to commercial operation, and that any surpluses pay for socially necessary services.
O-Licence holders argue that organisations operating under Permits have an unfair commercial advantage when tendering for work, due to the cheaper ‘light touch’ regulation.
In a separate move, Transport Select Committee Chair Lilian Greenwood MP has raised concerns – brought to her by the Community Transport Association (CTA) – about nine instances where she argues that the interpretation of the law has been changed by councils, the Traffic Commissioners and the Police, ahead of a formal DfT ruling. It follows an inquiry by the committee into the subject over a year ago, ahead of a DfT consultation in May 2018.
In reply, Buses Minister Nusrat Ghani says she “fully recognises that clarity over how the licensing regime apples to community transport operators is needed” and she is aiming to publish the government response “in the next couple of months.” But she adds: “While the DfT intends to issue final guidance …it is up to the courts to determine the law.”
In the interim, Ms Ghani says that it would “generally be premature for any local authority to end or withhold community transport contracts [sic].” She adds that the DfT is aware of all the enforcement cases highlighted by the CTA and that “some local authorities have sought their own legal advice and changed their procurement strategies based on that advice.”
