Senior Traffic Commissioner, Richard Turfitt, has issued an emergency Statutory Document setting out interim guidance on the approach being adopted by the Traffic Commissioners in response to the COVID-19 outbreak.
The Senior Traffic Commissioner recognises the extraordinary challenges that the haulage and passenger transport sectors will face in the coming months and that, during this period, there may be difficulties in meeting Operator’s Licence requirements. The guidance therefore seeks to support operators at this unprecedented time.
It is not possible to envisage every situation that might arise during the outbreak, but the guidance specifically deals with:
Separate arrangements are being planned by OTC management in respect of the services they provide and the Department for Transport will decide what exemptions might apply to the application of commercial road transport rules, such as drivers’ hours.
Periods of Grace
The legislation provides for the granting of a Period of Grace by a Traffic Commissioner in circumstances where Standard Operator’s Licence holders do not/are unable to meet the mandatory requirements for holding an Operator’s Licence (namely financial standing, professional competence and/or establishment). A Period of Grace allows an operator a finite period – up to a maximum period of 6 months – in which to rectify the situation.
Operating Centres – Loss of Access
In normal circumstances, the correct course of action where an operator loses access to their operating centre would be for an application for a new operating centre to be submitted; however, the Senior Traffic Commissioner recognises that, during the period of the outbreak, this may not be practicable (particularly as the new site may only be required for temporary use).
Traffic Commissioners will therefore give serious consideration to the granting of a Period of Grace where holders of Standard Operator’s Licences lose access to their operating centre(s) due to restrictions imposed during the outbreak. As part of the decision whether to grant a Period of Grace, the Traffic Commissioner may still wish to be satisfied as to where vehicles (and trailers) will be parked during this period.
The Senior Traffic Commissioner has set a starting point of 4 months Period of Grace (which is intended to allow for an extension to the maximum period of 6 months should circumstances require that).
Financial standing is a continuing obligation throughout the lifetime of an Operator’s Licence and it is a condition of the Operator’s Licence that the Traffic Commissioner will be notified if there is a change in an operator’s financial position.
Where an operator is unable to meet the financial standing requirement, the Traffic Commissioner may grant a Period of Grace – of up to 6 months – and they would normally require tangible evidence to show that financial standing can be met in the future.
Given the current exceptional and short-term circumstances, the Senior Traffic Commissioner has directed that a Traffic Commissioner may rely on a previous satisfactory financial check within the last 12 months as evidence to support the granting of a Period of Grace. A Traffic Commissioner may also accept internet or copy documents, with a check of original documents to be made at a later date.
A Traffic Commissioner will, however, still wish to be satisfied that:
The Senior Traffic Commissioner has set a starting point of 4 months Period of Grace for qualifying operators (which is intended to allow for an extension to the maximum period of 6 months should circumstances require that).
Professional Competence – Transport Manager
The Transport Manager(s) nominated on a Standard Operator’s Licence must “continuously and effectively manage” the transport activities for which they are responsible and Paragraph 54 of the Senior Traffic Commissioner’s Statutory Document No. 3 Transport Managers” sets out the ‘General Duties’ of a Transport Manager (against which the requirement for continuous and effective management is often assessed). The emergency Statutory Document confirms that, during the period of outbreak, Traffic Commissioners may have to take a view on what it is practicable in all the circumstances for Transport Managers to meet the ‘continuous and effective’ requirement. If a Transport Manager is in an ‘at risk’ group, which limits their availability to attend an operating centre, they will be invited to submit a proposal to a Traffic Commissioner on how they will fulfil the requirements of their role during the current situation (which may include the use of technology and other assistance).
It is a condition of the Operator’s Licence that the Traffic Commissioner will be notified if there is a change in the operator’s Transport Manager arrangements (and therefore the operator’s ability to satisfy professional competence). Traffic Commissioners would not normally expect to be notified of periods of short illness, such as the general symptoms described in the current public health guidance or absences as a result of a 14-day self-isolation period, and, where a Transport Manager develops more acute symptoms, a Period of Grace may be necessary. It is likely that, when deciding whether to grant a Period of Grace, a Traffic Commissioner will require details of how the operator’s transport activities will be managed during this period.
Recognising the additional challenges of recruitment during the period of the outbreak, the Senior Traffic Commissioner has set a starting point of 4 months Period of Grace for qualifying operators (which is intended to allow for an extension to the maximum period of 6 months should circumstances require that).
Process for Periods of Grace
The emergency Statutory Document emphasises that it is for operators holding Standard Operator’s Licences to apply for any Period of Grace and that operators should be proactive in making any such applications.
In order to grant a Period of Grace, the Traffic Commissioner is first required to make an adverse finding that the operator no longer satisfies one, or more, of the mandatory requirements (financial standing, professional competence or effective and stable establishment) for holding an Operator’s Licence. The Traffic Commissioner may then allow a Period of Grace for the operator to rectify the situation. If, however, upon expiry of a Period of Grace, the requirement has still not been met then the Operator’s Licence will have to be revoked (although in the context of financial standing there is the option to voluntarily reduce vehicle authority to a level for which financial standing can be shown to be met).
In normal circumstances, when deciding whether to grant a Period of Grace, the Traffic Commissioners wish to see reasonable prospects for a good outcome (i.e. that the requirement will be met upon expiry of the Period of Grace and on a permanent basis thereafter); however, the emergency Statutory Document confirms that, where the reasons for the adverse decision (i.e. the inability to meet one, or more, of the mandatory requirements) are connected to the outbreak, Traffic Commissioners are entitled to infer that the situation will be time-limited, and that, on that basis, there are reasonable prospects for a good outcome.
The guidance recognises that existing Restricted Goods Vehicle Operator’s Licence holders do not have the facility to request a Period of Grace but suggests that they may be able to make use of temporary exemptions (see below) and/or the offering of undertakings to be recorded on the Operator’s Licence requiring, for example, a future finance check.
Goods Vehicles – Interim Licences
Interim Licences give temporary authority to applicants for a Goods Vehicle Operator’s Licence.
Before granting interim authority, a Traffic Commissioner must be satisfied that the mandatory requirements for holding an Operator’s Licence are met – which includes the provision by the operator/applicant of evidence to demonstrate that financial standing is met (which, in the context of an application, is normally assessed over the most recent 28-day period).
The emergency Statutory Document confirms that, during the period of the outbreak, a Traffic Commissioner may, exceptionally, rely on an assessment of financial standing within the last 12 months as prima facie evidence to support grant of any interim goods licence.
A Traffic Commissioner will, however, still wish to be satisfied that:
Further, the operator would still be under an obligation to notify the Traffic Commissioner if the required level of finance was not subsequently available.
Goods Vehicles – Temporary Exemptions
A Traffic Commissioner has a general discretion to deal with an emergency by granting a temporary exemption from the requirement to hold a Standard Operator’s Licence.
The temporary exemption can be granted to any person, including existing holders of Restricted Goods Vehicle Operator’s Licences and essentially allows a Restricted operator to operate for hire or reward or for someone who does not hold an Operator’s Licence to use a goods vehicle for hire or reward or in connection with a business.
The temporary exemption will state the period during which the exemption applies and, for the duration of that period, relieves the applicant of the requirement to hold an Operator’s Licence to carry out transport operations for hire or reward, or for or in connection with any trade or business carried on by him.
Before granting a temporary exemption, a Traffic Commissioner must first be satisfied that an applicant is not unfit to engage in road transport. Additionally, a Traffic Commissioner may wish to be satisfied that:
The Traffic Commissioner must be satisfied that the grant of the exemption is necessary for the purpose of enabling an emergency to be dealt with (in this case the current outbreak) or enabling some other special need to be met (arising from the outbreak).
The Traffic Commissioner must also be satisfied that the applicant is engaged exclusively in national transport operations, which will have only a minor impact on the transport market because of the nature of the goods carried or the short distance the goods are carried. In the exceptional circumstances of the outbreak, the Senior Traffic Commissioner has advised that Traffic Commissioners are entitled to rely on a declaration to that effect signed by the person or officer of the corporate entity.
Current legislation already allows operators to seek short notice dispensation from a Traffic Commissioner in certain emergencies. Traffic Commissioners have a discretionary power to accept short notice applications for services and in particular:
The Senior Traffic Commissioner has confirmed that, in the event of widespread disruption, operators who need: (i) to change their local bus service registrations at short notice; or (ii) to change their local bus service registrations at short notice to allow for a temporary variation of services will be encouraged to apply using those provisions which allow for circumstances that could not reasonably have been foreseen or to meet an urgent and exceptional public passenger transport requirement. Operators seeking to reduce or stop a service for a temporary period are asked to consider lodging a variation application akin to a holiday service, where the registration automatically reverts back to the original route timetable at the expiry of the given period.
To relieve the administrative burden on operators, the Traffic Commissioners have agreed to allow for a change in the usual registration process. Until notified otherwise, operators seeking to make applications, variations or cancellations to local bus services can do so by emailing the Office of the Traffic Commissioner with more limited information. At the time of issue, operators in England and Scotland must still comply with the requirement to consult with the relevant Local Authorities and provide evidence of doing so to the Traffic Commissioner.
Community Passenger Transport
The Senior Traffic Commissioner confirms that, in the circumstances, where there is exceptional demand for instance to transfer patients or a loss of capability, Traffic Commissioners may see applications to provide services through community transport arrangements – under a Section 19 or Section 22 permit.
The legislation allows a Traffic Commissioner to issue a permit for up to a maximum of five years (with the permit holder being required to reapply for a new one at the expiry of the current permit). This allows the Traffic Commissioner to issue a permit for a much shorter period designed to cover the period of the outbreak only. On that basis and having identified the need to deal with an emergency or other special need arising from the outbreak, the Traffic Commissioner may be satisfied that the criteria are met on the basis of declaration to that effect signed by the person or officer of the corporate body.
Attendance at Hearings
For the duration of the outbreak, Traffic Commissioners will adopt the following principles to identify priority cases to be listed for hearing:
Traffic Commissioners may also be requested to give priority to box work (submissions) in respect of the following:
Traffic Commissioners will consider audio or video links in limited circumstances (e.g. in single issue cases, such as finance cases) and will decide on a case by case basis the practicality of hearing part or all of a case remotely. The Traffic Commissioners will also consider the use of alternative disposal methods and the benefit of Remote Enforcement Office Desk-Based Assessments in appropriate cases.
In relation to applications for adjournments, the Traffic Commissioner will be concerned with the potential impact on road safety and may request medical evidence and/or travel documentation. It is recognised that there may not be any evidence of a self-assessment carried out using the NHS 111 website; however, the parties may be required to indicate precisely what was advised. Even if a case has to be adjourned the Traffic Commissioner may make directions that you will be expected to comply with.
Anyone who is due to attend a Public Inquiry, Driver Conduct Hearing (or any other hearing before the Traffic Commissioners) is advised to contact the relevant Office of the Traffic Commissioner on the day before the hearing, to avoid unnecessary travel should the hearing be adjourned at short notice.
The Senior Traffic Commissioner makes it clear that nothing in the guidance should be taken to override the advice of the Chief Medical Officers.
The emergency Statutory Document can be accessed here:
The accompanying “Advice for Operators” issued by the Senior Traffic Commissioner can be accessed here:
Backhouse Jones will be issuing regular updates (via our website, social media platforms and email alert service) to keep operators abreast of changes as and when they happen. Operators are also encouraged to sign up to the Office of the Traffic Commissioner’s news alert service (https://public.govdelivery.com/accounts/UKOTC/subscriber/new), where further advice/updates will be issued as the position changes.
If you have any specific queries or require advice or assistance, please get in touch on 01254 828300 or via firstname.lastname@example.org.