Community transport came under the spotlight when it was the subject of two hearings by the Transport Select Committee. The second delivered a welcome degree of clarity to the sector – it seems
More information about the current review of community transport has come to light in two sessions of the House of Commons Transport Select Committee, with Parliamentary Under Secretary of State for Transport Jesse Norman appearing at one of them.
Mr Norman’s comments will have been largely well-received by community transport operators (CTOs).
But legal direction in setting its final position has not been ruled out by the Department for Transport (DfT) as it bids to avoid the judicial review threatened by the Bus and Coach Association (BCA), which was behind the complaint that brought the current situation to a head.
One of the headlines coming out of the sessions was Mr Norman’s announcement that the long-awaited community transport consultation should have been launched by the time that this is read.
It will last for 12 weeks and he says that, after responses have been considered, the DfT will issue a response. Formal guidance should follow that, if nothing else, will bring well-needed stability.
Legally binding
Despite some positive words for CTOs, Mr Norman accepted that the DfT’s hands remain tied by EC Regulation 1071/2009. Even so, much of the focus of the consultation will be on exceptions to 1071/2009.
Already, the DfT has outlined that Section 19 permit holders will be able to tender for work where no bids are received from commercial operators, and Mr Norman explained that thinking is already well advanced in that area.
A short distance exemption is also possible, and one for local bus services that don’t compete with routes provided by a commercial operator. Letters of derogation will be required, but “that ought to be enough to make quite a strong demonstration for legal purposes,” said the minister
“We are under quite a few constraints with regard to EU law, both 1071/2009 and more widely, in terms of what we can do,” added DfT Deputy Director Road Investment Strategy Client Stephen Fidler.
After the current issues have been addressed, there is potential to return to the numerous other questions surrounding community transport, but that depends on the regulatory landscape being clarified first.
Handled badly?
The current shadow over community transport came after a letter from by Mr Fidler in his former position as DfT Head of Buses and Taxis dated 31 July 2017.
Both him and Mr Norman admitted that the DfT was reluctant to issue the letter, but Mr Fidler said that there was no choice, given the DVSA’s findings into a complaint made by the BCA about Erewash Community Transport.
When quizzed by Daniel Zeichner MP, Mr Fidler said that the DfT was set to have commenced dealing with the issues before the letter was sent, but instead other things intervened, slowing the process. Nevertheless, the current task of clarification has so far proved to be “not too difficult, but… immensely challenging.”
“There is EU case law on the matter, but it is also clear that many other EU countries do not have the size or the diversity of the [community transport] sector that we have,” added Mr Norman.
Tellingly, the DfT was roundly criticised for a lack of understanding of the letter’s impact on CTOs.
A failure to comprehend the subject even extended to the Select Committee, with Paul Girvan MP incorrectly stating that volunteers using cars for community transport could be affected.
Mr Girvan was quickly corrected, but it was alleged that the DfT’s mechanism to deal with the issue is akin to “using a sledgehammer to crack a walnut.” Mr Fidler and Mr Norman refuted that suggestion, but there can be no doubt that Mr Fidler’s letter set off a chain reaction that has shaken the sector badly, and in some cases created worry where it need not have done.
In particular, it was confirmed by Jane Smith, of the Association of Transport Coordinating Officers, that most local authorities (LAs) have stopped issuing contracts pending the outcome of the DfT’s consultation through fear of legal challenge.
Financial help soon
There is a widespread expectation that regardless of the consultation’s outcome, some CTOs – primarily the larger ones – will need to obtain O-Licences, and that their drivers will need to undergo additional training.
To help with the former, Mr Norman revealed that the DfT will make available up to £250,000, while miniplus is aware that one LA has already ring-fenced a similar sum for driver training.
Both will be welcomed by CTOs, but the most pressing issue, and the primary aim of the consultation, is to define the demarcation between commercial and non-commercial. It is obvious from evidence presented to the Committee that clarification is urgently required, because the subject remains clouded in a great deal of ambiguity.
Regardless of spin about derogations and exceptions, establishing definitions of commercial and non-commercial once and for all will be the most important step in delivering long-term clarity.
Of that, there can be no doubt.