Periods of grace – Goods and passenger licencing

Periods of grace – Goods and passenger licencing

21.2.2024 | Compliance

Periods of grace – Goods and passenger licencing

Tim Ridyard, Ahstons Legals’ Transport Lawyer, shares what this means in practice. 

Many goods or passenger vehicle operators with operator’s licences stumble over “Periods of Grace”. Some lose their licences by not navigating them correctly. No licence may mean no business.

So, what are they, why are they needed, and what should operators do to ensure they manage them correctly?

Standard licence holders will need to apply for Periods of Grace if they cannot meet one or more of the mandatory elements of their licence.

These are:

  • professional competence: there has to be at least one person qualified with a Transport Manager’s Certificate of Professional Competence (TMCPC)
  • financial standing: access to £8,000 for the first vehicle and £4,500 for additional vehicles – £1,600/£800 for light go0ds vehicles
  • a stable and effective establishment: where business documentation is kept and there is access to vehicles.

In reality, the main problem areas for which Periods of Grace are required relate to Transport Managers and Financial Standing.

If an operator cannot meet what is required, the Traffic Commissioner (the regulator who issues the licences) has to be informed – and if the Traffic Commissioner is not notified, then that is a failure on the part of the operator to declare this and is a licence breach.

Periods of Grace cater for things that will happen to businesses from time to time. If a Period of Grace is granted, then this is a ‘bridge’ until such time as the operator can meet the requirement.

Transport Managers

There are a number of reasons why a Transport Manager may no longer be engaged as either an internal Transport Manager or an external one. They may die, be ill, be dismissed, retire, be unhappy with the operator or wish to move on to a new job.

It would be nonsensical if the operator’s licence had to dissolve simply because of such a normal event as that might occur. The period of grace provides a solution. However, it must be managed properly by the operator.

When a Transport Manager leaves a business, the operator will remove the Transport Manager from the licence (using the VOL online system), and the Transport Manager will/should likely also notify the Traffic Commissioner of their departure. Either event will automatically trigger a letter being sent to the operator (via the VOL system), setting out what information is required by the Traffic Commissioner. (This assumes there is no remaining Transport Manager on the licence – but even then, there might be a letter asking how the fleet will be managed with one Transport manager less; however, in that situation, it is not a ‘bare’ licence with simply no Transport Manager at all, of course).

It will not suffice simply to ask for a Period of Grace for a bridging period – this must be requested, of course, but there needs to be substance: a clear path forward that (a) states what arrangements there are for a new Transport Manager and (b) sets out how transport is to be managed without a Transport Manager – or, as the Senior Traffic Commissioner has put it: “that the continued operation of vehicles won’t compromise road safety.”

The operator must go through this procedure – if it is simply left undone, the requirements of a Transport Manager will be unfulfilled – and the licence will be revoked if detected.

It is not a given that the Period of Grace will definitely be granted – however, if a proper plan of action is in place, this should not present a problem. It is incumbent on the operator to sort out the recruitment of a new internal and external Transport Manager, and we advise this being evidenced, e.g. copy advertisement, selection criteria, details of a number of applications, interview timetable and dates, etc. The more information provided, the clearer the picture of a responsible approach being taken.

Operators must keep an eye on the duration of the period of grace and not let it expire. The total cannot exceed six months, save in the event of the death/incapacity of the Transport Manager. Ordinarily, it will be a (hopefully) one or (possibly) a two-stage process with an initial period granted by the Traffic Commissioner, with the leeway of a further extension up to six months.

If the operator lets the period of grace expire, then revocation of the operator’s licence may take place due to there simply being no ‘professional competence’, as happened in a recent case involving a local council that failed to address the requirement to have a nominated Transport Manager, much to the disgruntlement of local residents whose dustbins could not be collected!

Recent guidance issued by the Senior Traffic Commissioner states that even if there is evidence that the Transport Manager requirements can now be met or if there is an application to extend the existing period of grace, the Traffic Commissioner has to be given sufficient time to consider it.

The Senior Traffic Commissioner has also made the following position clear: ‘… because it is accepted at the outset of granting a Period of Grace that a mandatory licence requires it is no longer met, there is no right to a request of Public Inquiry after that time limit has expired.’

Therefore, it can be seen that not managing a period of grace can be fatal.

Financial standing

We have referred primarily to Transport Managers so far. However, the same applies in relation to financial standing. If an operator cannot fulfil the finance requirements, the Period of Grace has to be applied for in order for the operator to then provide evidence of its ability to demonstrate the financial wherewithal. Then, evidence has to be actually supplied within the period stipulated by the Traffic Commissioner, following the normal finance evidence rules (e.g. three months’ bank statements, etc).

If you require advice and assistance concerning any investigation carried out by DVSA and/or advice concerning operator licensing (including Traffic Commissioner Public Inquiry and preliminary hearing matters), please contact Ashtons.

Tim Ridyard, Ashtons Legal

Periods of grace – Goods and passenger licencing

The Driver & Vehicle Standards Agency (DVSA) has published its October 2023 version of its ‘Enforcement Sanctions Policy’.

31.10.2023 | Compliance

DVSA publishes its October 2023 version of its ‘Enforcement Sanctions Policy’

Ashtons Legal’s transport partner, Tim Ridyard sets out how DVSA examiners deal with most offences they encounter at the roadside.

DVSA: roadside enforcement policy

All enforcement agencies and prosecuting authorities are expected to operate in accordance with their own policies. There is a legitimate expectation that they will do so, and it may be an unlawful abuse if they act contrary to those policies.

DVSA may take enforcement action that can ultimately lead to prosecution and/or referral to the Traffic Commissioner (where HGV/PSV operators have an operator’s licence). There has been a trend over recent years to make Traffic Commissioner referrals but not prosecute, even where prosecution may be justifiable. Cost and significant delay (court backlogs now in record numbers) are a disincentive.

DVSA examiners may deal with offences in a variety of ways

Verbal warnings

These are deemed as ones appropriate only for minor infringements and where historical fixed penalty offences cannot be issued.

Prohibition notices

These Notices are intended to remove road safety risks. They are not penalties or criminal convictions as such. They are often referred to as a ‘PG9’ (the form used) and are designated either immediate (I) or delayed (D). Either can be endorsed as ‘S’, which means a significant failure of roadworthy compliance. This is where DVSA believe there are “defects that the Operator and/or Driver should have been aware of” and will meet one or more of the following criteria:

  • long-standing defect that should have been detected and repaired at the last safety check
  • the defect or issue should have been detected at the first use/daily walk round check
  • performance, handling and/or warning systems would have made the defect obvious to the driver
  • poor workmanship should have been apparent to the repairer
  • the nature of the defect(s) observed at the annual test was such that they should have been found before the vehicle was presented for test
  • the number and nature of defects present on this notice indicate a significant failure in maintenance

S-endorsed prohibitions are significant because of the follow-up action that may follow, including the requirement for operators to undergo desk-based assessments (where they have to supply maintenance, drivers’ hours, evidence and other material) or DVSA inspection visits by traffic or vehicle examiners, with referral to the Office of the Traffic Commissioner.

Fixed penalties

These are only issued by DVSA where any vehicle is being used for commercial purposes. They are only “offered” in respect of the roadside inspection process, not later. Of course, they can only be issued to drivers and not operators. Some fixed penalties fall under graduated schemes (e.g. drivers’ hours and excess weight) and are in the range of £50, £100, £200 and £300. Operator’s licence holders must report these to the Traffic Commissioner within 28 days.

Some drivers’ hours offences are “historical”, i.e. they have occurred in the 28-day period preceding the occasion of the roadside check. Fixed penalties for these are issued if the offences are deemed to be severe or, if not severe, are more than three in number. This will initiate follow-up action against the operator in order to assess the extent to which the operator is culpable. In turn, this may trigger prosecution and/or referral to the Traffic Commissioner. Matters may also be dealt with by way of advisory or warning letters.

Some DVSA encounters will reveal Most Serious Infringements (MSIs). These are defined in operator licencing regulations but will likely result in operators being visited by DVSA or other follow-up.

Enforcement Sanctions Policy

The policy sets out regulations and the sanction or other action to be adopted by DVSA for each category of offence. It is, therefore, possible to know specifically what approach will be taken by DVSA. It also confirms which offences are endorsable. These are essentially construction and use offences relating to brakes, steering, tyres and loads; many road transport offences are simply not endorseable e.g. driver hours offences or weight offences.

The following offences are covered in the Enforcement Sanctions Policy, which can be found here

  • defects and dimensions
  • driver licensing, insurance and driver’s CPC
  • vehicle excise, registration number and trade plates
  • drivers hours and tachographs
  • GB domestic drivers’ hours and records
  • goods vehicles operator licensing and PSV operator licensing
  • plating and testing and certificate of initial fitness
  • overloading
  • goods vehicle and PSV miscellaneous offences
  • carriage of dangerous goods
  • MOT

If you require advice and assistance concerning any investigation carried out by DVSA and/or advice concerning operator licensing (including Traffic Commissioner Public Inquiry and preliminary hearing matters), please contact Tim Ridyard on 0330 404 7949 tim.ridyard@ashtonslegal.co.uk

Tim Ridyard, Ashtons Legal

Vartan Launches Sizewell C Division

Vartan Launches Sizewell C Division

4.10.2022 | Compliance

Vartan Launches Sizewell C Division

New division to help local businesses make the most of the opportunities Sizewell C presents.

Miles Vartan, MD of VARTAN Consultancy, is pleased to announce that as of the 1st of September 2022, his company has created a new division to assist businesses in the local and regional areas in securing work on the now probable Sizewell C Nuclear Power Station Project.

VARTAN Consultancy, working with a team of Associates, can help with project management, building and developing a safety culture that will align with New Nuclear requirements. Creating effective environmental initiatives will assist EDF in building Leiston as the first net-zero town in Britain, all contributing to establishing a local and regional legacy due to contract wins and related investments.

Miles Vartan says: “We feel that our knowledge of the local and regional business community combined with our understanding of how to minimise and manage risk provides our company with a distinctive role to play in helping companies secure work at Sizewell C. We look forward to continuing to develop our relationship with the Suffolk Chamber of Commerce, who, to date, have done such a great job in getting the project to this stage. We now need to help businesses land deals that will create a long-lasting legacy for Suffolk and the surrounding counties.”

John Dugmore, CEO of the Suffolk Chamber of Commerce, said: “Suffolk Chamber was pleased to have commissioned Miles Vartan to front up our Sizewell C Supply chain operation during its initial period. Building on his great work, we have increased the team to ensure that local and regional businesses are best placed to take advantage of the hundreds of opportunities coming out of the building and operation of the new nuclear power station.

“We wish Miles well in his new venture and look forward to working with him to make Sizewell C the best news for many local and regional businesses in a long while.”

For further information, please contact Miles Vartan E: miles@vartanconsultancy.com  T: 01394 671756.

Periods of grace – Goods and passenger licencing

Fleet maintenance: trailers – traction only services

6.9.2022 | Compliance

Fleet maintenance: trailers – traction only services

What is the difference in legal maintenance standards required of a business pulling its own trailers compared to when it is drawing those of third parties? 

The simple answer is, that there is none.

This issue has been flagged in the most recent Traffic Commissioner Annual Report 2021/2022. It is a topic that is being given significant prominence – operators need to be aware of the expected standards and policies to be put in place. The report notes:

“In several high-profile cases this year, it has been suggested that some trailer suppliers (including those based offshore) are avoiding responsibilities to ensure safe operation of trailers on GB roads. The lack of adequate arrangements regarding regular and frequent brake testing has been a prominent failing. The potential impact on British roads is significant, and the traffic commissioners have felt the need to issue several warnings regarding this to companies involved in this type of third-party trailer operation.”

As a matter of law, the user of the vehicle (the operator) and the driver are responsible for the condition of the goods vehicle on a public road – that includes any trailer drawn by it, whether it is being used temporarily by the operator or not. Any proceedings for related offences will be taken against the operator/driver, just as actions taken by DVSA e.g. prohibitions, will be recorded against the operator’s licence, regardless of ownership or length of time, a trailer is in possession. The Report highlights this:

“For the avoidance of doubt, operators providing traction-only services to third-party trailers are responsible in law for the condition of that trailer when in use. Transport managers are also required by law to manage transport operations continuously and effectively. The operator’s licence requires “satisfactory facilities and arrangements for maintaining the vehicles used under the licence in a fit and serviceable condition”. In that context, “vehicles” includes any trailer (including those from abroad) being drawn.”

Traffic Commissioners will wish to see evidence of operators having formal policies and statements in place, confirming the respective positions of, and the relationship between, operators and trailer owners. If not already in place, this needs actioning. For an operator, such a statement and policy would contain the following:

  • confirmation that the operator and driver understand that they have full legal responsibility for any trailer drawn by its vehicle
  • a declaration that the operator is satisfied with the arrangements in place for trailers being kept fit and serviceable
  • confirmation that drivers have received dedicated walk-around check training for trailers, to include MOT expiry checks, as well as safety inspection check and brake testing within the date stated; and that if not MOT’d or outside those dates, the trailer will not be used
  • the ability under the arrangements to decline a trailer that has a safety defect
  • confirmation that documentation setting out the above will be carried within the vehicle.

A trailer owner does not have its own operator’s licence (unless it is operating goods vehicles in its own right) and hence is not under the jurisdiction of the regulator, i.e. the Traffic Commissioner. Nevertheless, there should be a statement of its responsibilities, confirming the following:

  • assessment of the trailer inspection frequency and confirmation of the service interval
  • confirmation arrangements are in place to maintain trailers in a fit and serviceable condition
  • arrangements to display information on trailer headboard or by chassis Ministry plate: MOT expiry date, dates of last PMI, date of last roller brake test, defect report contact details
  • confirmation of no commercial impact or consequence where an operator refuses to operate a trailer because there is a safety defect.

If you require any advice regarding fleet maintenance and compliance, DVSA investigations, correspondence with the Office of the Traffic Commissioner or preliminary hearing/public inquiry guidance, please call Tim Ridyard on 0330 404 7949.

Ashtons Legal

Tim Ridyard, Ashtons Legal

Periods of grace – Goods and passenger licencing

Brake Maintenance – testing times

2.8.2022 | Compliance

Brake Maintenance – testing times

Tim Ridyard, transport partner at Ashtons Legal, warns us of the failure to comply with the basic law.

There is now a sharp focus on road transport operators being able to demonstrate robust brake maintenance systems and management. This area has been one of the most prominent compliance issues in recent years. Of significant current concern is the use of trailers by traction-only operators and what brake-testing and other maintenance have taken place.

As a reminder, the basic law states:
“Every part of every braking system and the means of operation thereof fitted to a vehicle shall be maintained in good and efficient working order and be properly adjusted.”  (Road Vehicles (Construction) Regulations 1986).

Failure to comply with this can lead to an unlimited fine for an operator and a driver. There is a mandatory endorsement of three penalty points on the driving licence – or a discretionary disqualification. However, the consequences of a failure to maintain brakes properly can be catastrophic, leading to serious accidents as well as custodial sentences where there is death and serious injury. Dangerous driving offences can be committed through the use of badly maintained vehicles, not just bad driving.

The starkest example of appalling brake maintenance was the ‘Bath tipper’ case. On 9 February 2015, two tippers drove down a steep road in Bath; one lost control, killing four people. Subsequent examination of the vehicle found problems with almost every brake on each axle; two did not work at all, and most others were maladjusted. Supposedly, the brakes had been checked at previous inspections by the independent maintenance contractor. This could not possibly have been the case. ABS warning lights had also been ignored. The company’s Director and the maintenance contractor were convicted of gross negligence manslaughter and imprisoned for seven years, six months and five years three months, custody respectively.

Whilst this is mercifully a rare case and contains an unusually bad catalogue of failings, it is no use batting it away as some one-off event, unlikely to be repeated. Complacency is the enemy of good management, and there is no room for negligence when managing fleets.

Operator Licencing
Over recent years, there has been heavy emphasis by the Office of the Traffic Commissioner and DVSA on ensuring operators fully engage in brake safety. It can fairly be said that brake testing is amongst the top priorities operators need to address to ensure operator’s licence compliance.

It is expected – indeed demanded – that at every maintenance inspection (PMI), an assessment of brake performance takes place. No longer is it permissible for records to be blank or evidence brake management with phrases such as ‘all OK’ or ‘yard test OK’ or ‘tested brakes on the way back from (insert location)’. Proper evidence of a meaningful procedure has to be provided. There must be sufficient loads for the testing process.

When any operator is summoned to a preliminary hearing or Public Inquiry before a Traffic Commissioner, they are obliged to submit maintenance records. These must include all brake reports and printouts. These are examined in advance of the hearing – operators are taken to task if performance tests have not taken place at all, or have not occurred at every inspection or if the test data reveals unsatisfactory outcomes or information that requires follow up e.g. the brake tests are unladen or there is an insufficient load, or there are imbalances.

Brake Performance Assessment
There appears to be some misunderstanding that it suffices if brake tests take place four times annually. This may be because DVSA guidance says: “you should get your HGV or trailers’ brakes tested by a roller brake tester (RBT) at least four times per year, including at the MOT.” However, this simply states the minimum recommended number of roller brake tests.

The DVSA guide to maintaining roadworthiness expressly states:

As per the annual test, every safety inspection must assess the braking performance of the vehicle or trailer. It is strongly advised that a calibrated roller brake test (RBT) is used at each safety inspection to measure individual brake performance and overall braking efficiencies for the vehicle or trailer to be annual test standards. However, it is also acceptable to use an approved and calibrated decelerometer to measure overall brake efficiency values for vehicles without trailers.

So, there is no relaxation from assessing brake performance on those service inspections when an RBT is not used. Otherwise, there would be no check required on every other inspection. How could the vehicle then be signed off as roadworthy?

There are a number of further pointers and guidance notes for operators to consider:

• vehicles or trailers should be brake-tested in laden condition
• brake test records need to be attached to the safety inspection record and retained for a minimum of 15 months (they are part of the maintenance records to be kept)
• if the maintenance provider does not have a roller brake tester, this can be carried out elsewhere within the same week as the safety inspection
• either roller brake testers or decelerometer can be used for brake efficiency testing. An electronic braking performance monitoring system (EBPMS) can be used to measure brake performance
• it is possible to carry out brake performance checks through road tests but only where it is impracticable to get a brake efficiency test or measured performance assessment. Road testing is not regarded as adequate for all safety inspections, and DVSA expects a minimum of four brake efficiency tests per annum in any event.

HGV/Trailer Brake Test Report
In February 2022, DVSA issued guidance to assist operators in interpreting brake test results in its publication Understanding your HGV or Trailer’s Brake Test Report. In fairness, the reports are not easy to understand, so it is imperative operators invest time in this to ensure the data can be understood. It is not acceptable simply to receive back a brake test report, only then to file it away as a maintenance record. Instead, it has to be read, analysed, and understood and, where necessary, follow-up needs to take place.

At any preliminary hearing or Public Inquiry hearing, a Traffic Commissioner will interrogate operators. They will expect vehicles to present laden brake tests (the minimum for DVSA is ideally 65% of total maximum weight) and see evidence of their understanding of the brake test data in their records. For example, a vehicle may exhibit a Pass, but this may be Pass (locked), where the wheels have locked during the test, leaving the results that may be inaccurate with a test load not at least 65% of the vehicle weight. Operators are expected to understand and spot these types of technical issues.

It is recommended that operators read in detail any available sector guidance e.g. the guide issued by Logistics UK together with other DVSA material that is to be found here:

Understanding your HGV or Trailer’s Brake Test Report.

DVSA Guide to Maintaining Roadworthiness.

If you require any advice with regard to Goods and Passenger Operator Licencing, including advice concerning DVSA Investigations, correspondence with the Office of The Traffic Commissioner or Traffic Commissioner Preliminary Hearing/Public Inquiry work, then please call Tim Ridyard on 0330 404 7949.

Ashtons Legal

Tim Ridyard, Ashtons Legal