It’s been reported in the trade press over the last two weeks that the Department for Transport (DfT) has issued new advice and guidance regarding the operation of Section 19/22, and I write to clarify an important issue.
The BCA made a complaint to the UK authorities regarding the operation and misuse of Section 19 permits by a road transport organisation, and after a 10-month investigation led by the DVSA, it concluded the activities of that organisation were in clear breach of EC Regulation 1071/2009 and others.
The letter from the DfT informed the permit holder, the Community Transport Association (CTA), all the issuing bodies and the BCA that this investigation made clear that the DfT had to produce this letter with reference to the law.
This transport regulation did not come within any of the derogations from the requirement in EU Regulation 1071/2009 for operators of road passenger transport services to hold a PSV O-Licence. Regulation 1071/2009 is directly applicable in UK law.
Although there is derogation for operators “engaged in road passenger transport services exclusively for non-commercial purposes or which have a main occupation other than that of road passenger transport operator”.
The only derogation in Article 1(4) of Regulation 1071/2009 that is likely to be applicable to an operator wishing to operate vehicles under a Section 19 or 22 permit, is the derogation for operators “engaged in road passenger transport services exclusively for non-commercial purposes or which have a main occupation other than that of road passenger transport operator”.
An operator whose activities are essentially those of a bus company (in that it employs salaried drivers and carries out passenger transport services under contracts won in contestable markets and/or in exchange for fares charged to passengers at more than nominal rates) cannot be regarded as carrying out its activities “exclusively for non-commercial purposes”.
That is so even if the operator is a registered charity or other “not for profit” organisation. Where any of an operator’s services are not being carried out “exclusively for non-commercial purposes”, then the operator cannot operate any vehicles under a Section 19 or 22 permit, since it falls outside the scope of the derogation.
It’s absolutely obvious that this is directly applicable – applicable, meaning the law, it’s not guidance.
The CTA’s Bill Freeman has made statements asking for authorities to carry on till the end of the consultation. What Mr Freeman is asking is for permit operators and the contracting authorities to break the law.
Mr Freeman would be better spending his time assisting his organisation to become compliant – he has no choice because the permit is worthless.
I understand this is a period of grace, but the 1071/2009 is directly applicable and has been from the 4 December 2011, so the law is being broken now.
Contracting authorities that choose to carry on should consider their position. This has not been welcomed by the permit sector and many local authorities. Many authorities have become reliant on the sector and in many areas have become the dominant party; they need time to adapt, and now is the time to do so.
The outcome of the consultation in the autumn will change nothing. We all have to remember that this is also under close scrutiny by the European Commission.
Martin Allen
Bus and Coach Association
