Jared Dunbar BSc, MA, LLB Associate, Dyne Solicitors Limited

1. Operator Licensing:Tachographs and Driver’s Hours, Financial Standing, Operating Centres, Transport Managers and Driver Conduct Hearings Jared Dunbar BSc, MA, LLB Associate, Dyne Solicitors Limited

2. My background • Associate at Dyne Solicitors Limited, specialising in Road Transport Law. • Previously worked in the automotive industry throughout the UK and Europe. • Co-ordinator of a national trade association, the BSA. • Written legal content for UK Haulier website and quoted in Commercial Motor magazine. • Discussed implementation of forthcoming European legislation with Department for Transport.

3. Transport Law – A complex area? • Senior Traffic Commissioner’s Statutory Guidance • Totals over 300 pages • Wilkinson’s Road Traffic Offences • Approximately 4000 pages long • VOSA’s enforcement sanctions policy • Over 300 pages long • Over 600 different offences

4. Sanctions for Transport Problems • You risk being: • Prosecuted - fined, disqualified, imprisoned • Called to a Public Inquiry where you risk • Losing your Operator’s Licence • Having you licence suspended • Having your licence curtailed

5. VOSA – The statistics

6. VOSA Criminal Prosecutions – The statistics

7. Public Inquiries – The statistics

8. (1) Driver’s Hours and Tachographs

9. Drivers’ Hours Legislation • EU rules • apply to drivers of most large goods vehicles (over 3.5T). • GB rules • Apply to drivers exempt from EU rules • Working time • Apply to all drivers in addition to EU and GB Rule

10. Exempted Vehicles • Total exemption from all rules given to drivers of vehicles used by • Armed Forces • Police • Fire Brigade

11. EU Rules • Exemptions include • Refuse collection • Radio and TV broadcasting • Gas, electricity and water services

12. Basic Rules - Driving • Daily driving • shall not exceed 9 hours • Can be extended to 10 hours on two occasions a week • Weekly driving • Must not exceed 56 hours in a week • Fortnightly driving • Must not exceed 90 hours in any two consecutive weeks

13. Basic Rules - Rest • Breaks • After 4 ½ hours, a 45 min break must be taken • (can be taken as 15 mins and then 30 mins, but not other way round) • Daily Rest • 11 hours in 24 hour period • May be reduced to 9 hours but no more than 3 times between two weekly rests • Split daily rest: First must be at least 3 hours and the second at least 9 hours • Weekly rest • After six 24 hour periods, a regular weekly rest of 45 hours • Or, reduced weekly rest of 24 hours (must be compensated by equivalent rest taken before end of 3rd week)

14. EU Rules - Emergencies • Drivers may disregard EU hours rules in order to • Reach a suitable stopping place • Ensure safety of persons, vehicle or load • Must record on their tachograph why the breach occurred

15. EU Rules – Trains and Ferries • Daily rest may be interrupted twice • Total of all interruptions not to exceed one hour • During all rest, driver must have access to a bunk • At least 11 hours rest to be taken

16. Liability of Operators • Operators must ensure drivers hours’ rules are obeyed • Operators may be prosecuted alongside drivers for offences • Operators and drivers offences need to be notified to the Traffic Commissioner within 28 days of conviction

17. GB Domestic Rules • Apply to most goods vehicles that are exempt from EU rules • Exemptions • Police and fire brigade • Drivers who always drive off road • Private driving • Daily driving – maximum permitted is 10 hours • Daily duty – maximum permitted is 11 hours

18. Mixed EU and GB Rules • If a driver undertakes some driving under EU and some under GB then: • Driving under EU cannot count as off-duty under GB rules • Driving under GB rules count as attendance at work under EU • Driving under EU count towards driving and duty limits under GB domestic rules • Any driving under EU rules in a week means • that you must take a daily rest period on those days • as well as a weekly rest period • Driving limits – GB must always be obeyed. Anytime driving under EU, then those rules on driving limits must be obeyed. • Rest and breaks – must always obey EU rules on rest periods and breaks on days and weeks in which EU rules driving is carried out

19. Working Time rules for EU drivers • If driving under EU rules, a driver: • Must not exceed average of 48 hours per week (over 17 week period). • Maximum of 60 hours in any one week • If night work performed, working time must not exceed 10 hours in a 24hr period • Cant work more than 6 hours without a break • 30 minute break(s) for 6-9 hrs • 45 min break(s) if more than 9 hours • A break must be 15 minutes • Records kept for 2 years

20. Working Time rules for GB drivers • If driving under GB rules, a driver: • Must not exceed average of 48 hours per week (over 17 week period) (can opt out) • Health checks for night workers • Entitlement to adequate rest

21. Powers of VOSA and Police • Prosecute a driver and/or operator • May prohibit drivers from driving when • EU or GB rules limits breached • Continued driving will break rules • Tachograph charts fraudulent

22. Analogue tachographs – Driver’s responsibilities • Verify tachograph is correctly calibrated • Carry enough charts for whole journey (including spare) • Use second chart if a chart is damaged while in use • Ensure correct type of chart is used for specific model of tachograph • Not use a chart to cover a period longer than 24 hours • Enter centrefield details at first use and when changing vehicles • Correctly operate the mode switch • Make manual entries on chart to explain an ‘emergency’ breach • Make manual entries when equipment malfunctions • Report malfunctions to employer • Return charts to Operator within 42 days • Permit an authorised examiner or police to examine tachograph • Not remove a chart before the end of a duty period • Produce that day and previous 28 days charts at roadside • If they have a digital card, carry it on their person

23. Digital tachographs • Store data on driver card and vehicle unit • Operator must download data • Driver card data every 28 days • Vehicle Unit data every 56 days • Drivers must carry Digicard with them even if driving analogue vehicle

24. Digital tachographs – generation 1 • Introduced in 2006 • When Digitach 1 was introduced, there were rounding errors in the system • This meant that drivers were losing upwards of 30 mins a day of driving time • Caused primarily by stop start driving • The problem was removed by the Generation 2 Tachographs.

25. Comparison of Driving Time

26. Operators’ Responsibilities • Ensure tachographs have been calibrated • Supply type-approved charts and print roll to drivers • Properly instruct drivers on rules • Ensure drivers return charts within 42 days • Schedule work so that it complies with the rules • Download data from Vehicle Unit • Download data from Driver Cards • Check chart and digital data compliance • Keep records for at least 12 months • Take all reasonable steps to prevent breaches of rules e.g. analysis

27. Tips • Get all tachographs independently analysed • Make sure all drivers have undergone tachograph training (as part of Driver CPC) • Have annual refresher training • Test all new driver’s understanding before they go on the road • Have written contracts and a written disciplinary procedures in place to allow you to deal with errant drivers • Seek advice early if called to Public Inquiry

28. Questions?

29. (2) Financial Requirements for an Operator’s Licence

30. Purpose of Financial Requirement? • To ensure that the holder of an Operator’s Licence has the resources to keep its vehicle safe on the road

31. Maintenance Contract Hire • Even if you hire your vehicles and maintenance is included in that hire agreement, still need to demonstrate financial standing

32. When do I need to meet Financial Standing? • Continuing requirement throughout duration of licence • Operators must notify TC of material changes in the availability of finance within 28 days (condition of licence) • E.g. if a company is heading to administration the TC needs to be notified before administrators are appointed • Burden on the Operator to satisfy the TC that financial standing met

33. What happens if I can’t meet it? • Proportionality doesn’t come into it • Revocation for lack of financial standing is mandatory • Licence will be curtailed – if you ask

34. Level of Finance Required • Levels differ for a Standard and Restricted Licence • Amounts change every 1st January • Requirement for number of vehicles on the licence (not just number being operated)

35. Amounts Required (2013)

36. Assessing availability of Finance • Do not need specified amount available 365 days per year • But an average balance over 3 month period for existing licences and 1 month for applications • What are available funds? • capable of being used • Leading case poses 3 questions: • How much money can the operator find if he needs it? Amount depends on licence • How quickly can he find it? Must be at most 30 days • Where will it come from? Various options

37. Names on financial statements • All financial documents should be in the name of the applicant • Partnerships and sole trades can (at TC’s discretion) use statements from someone else but only if supported by a statutory declaration • Companies could be supported by Group or cross-company guarantees

38. Types of evidence which can be used • Bank statements • Building society statements At TC’s Discretion: • Credit Card accounts • Working capital loan facility or revolving credit agreement • Invoice Finance or Invoice Agreement • Annual accounts • Real Assets

39. Physical assets – in practice • In the case of NCF (Leicester) Ltd in 2012, the Upper Tribunal said: “while it might appear possible, in theory, to put forward physical assets in order to meet the requirement to be of appropriate financial standing the practical difficulties are such that it is unlikely to prove possible in practice”

40. Types of evidence generally NOT allowed • Cash • Bank letters (other than formal overdrafts) • Children’s accounts • Shares, savings bonds, PEPs/ISAs, savings certificates, insurance policies, unless accompanied by accountant letter certifying value and notice period for cashing • Physical assets such as livestock or perishable goods • Property, plant and machinery if their disposal would affect the business i.e. can’t rely on the vehicles your using! • Age debt registers

41. Assessing Bank Statements • Assessing an average balance over 3 months (1 month for applications) • Take average of the 10 figures over 3 month period: • Latest figure e.g. 30 August 2013 • 20 August • 10 August • 30 July • 20 July • 10 July • 30 June • 20 June • 10 June • 30 May • Then add in overdraft facility • Then add any other sources of finance

42. Example

43. Interpreting Financial Accounts • Two most important elements are • Profit and loss account • Balance sheet • On a review, Leeds will check: • Profit and loss account is positive • Balance sheet ratios • Total assets / total liabilities > 1.0 i.e. Company should own more than it owes • Current assets / current liabilities > 0.5 i.e. Company can realise at least sufficient cash to pay half of its creditors • Current assets ratio of between 0.5 and 1.0 may indicate difficulties and will be referred to TC

44. Statutory Declaration? • Can only be used for partnerships or sole traders • Guarantee from a 3rd party to provide the operator with the funds

45. Period of grace • TC’s have discretion to allow holders of standard licences a period of up to 6 months to demonstrate that the requirement will be met on “a permanent basis.”

46. Tips for Public Inquiry • TC’s ask for financial evidence to be supplied to them 1 week before the PI • Get the bank statements (or copies) , overdraft letter and accounts etc to your solicitor quickly • Solicitor needs to assess them before the hearing • If there is an issue, it can be addressed by using other resources but only if sufficient time

47. Questions?

48. (3) Operating Centres Jared Dunbar BSc, MA, LLB Associate, Dyne Solicitors Limited

49. When should vehicles be parked at the Operating Centre? • Vehicles should be parked or ‘normally kept’ at the Operating Centre when not in use • This is a question of fact and degree in each case • Traffic Commissioner has stated that “this is a difficult area” and “there is little guidance which can be issued in this regard”. • The Traffic Commissioner only has jurisdiction over authorised vehicles and does not extend to visiting vehicles.

50. Unauthorised Use • Criminal prosecution (level 4 fine, £2500) • Issue will be discussed at Public Inquiry