PRO-REPORT

What the Traffic Commissioner’s need to know about your business

• 11:47 - 23 September 2016

There are various reasons and changes that all business holding an operator licence must report to the OTC (Office of the Traffic Commissioner), some may surprise you whilst others are common knowledge. Did you know for example that a recent update to the statutory guidance and statutory directions now requires that all operator licence holder’s must notify the OTC if they have been served with an improvement notice by an enforcement agency such as the HSE.

If this is news to you then you may be even more surprised to know that you have an obligation to report to the OTC each and every parking ticket issued to a vehicle on your operator licence fleet list. This isn’t a new obligation this is an example of a long standing obligation that many operators are simply unaware of and will never have reported. I will touch back on this later.

For now I want to concentrate on the most common changes a business must report to the OTC.

Change of Transport Manager

Changes to the structure of a business such as the removal, replacement or adding a new internal or external transport manager must be notified to the OTC within 28 days by completing the mandatory forms. In addition the original certificate of competence must be sent along with the application. In the case of an external transport manager it is strongly advised that the application should include a written contract signed and agreed by both parties. The Traffic Commissioner will want to establish the good repute and competence of the transport manager and will consider matters such as whether they have been named on an operator licence that has been previously curtailed, suspended or revoked. In the case of appointing a transport manager with acquired/grandfather rights or who may have passed their Transport Manager CPC many years ago be prepared that the traffic commissioner may add a condition or undertaking that the transport manager must complete a transport manager refresher course or sit a Transport Manager CPC Exam within a set timescale. It is therefore advisable to consider these factors as part of the recruitment process and in all cases references/testimonials should be sought.

Adding and Removing vehicles.

If you are removing vehicles from your operator licence all changes must be notified within 21 days. The o licence disc must be returned when a vehicle is removed. When adding vehicles to an operator licence within your current authorisation the traffic commissioner must be notified within 1 month.  Adding and removing vehicles can all be completed using the online self-service system. In all cases where the intent is to operate more vehicles that currently authorised an application must be made nine weeks before a change is planned by completing the mandatory forms,  the operator must advertise the application in a local newspaper in the area of the relevant operating centre/s. This means that the public can object to the application or relevant bodies can make representations. Unless an interim or full authority has been granted by the Traffic Commissioner, operators must not operate more vehicles than they are authorised to operate or park vehicles when not in use at an undeclared operating centre until the relevant authorisations and/or licences have been granted.

Changing the type of licence.

There are many reasons a business may consider changing the type of operator licence it has been granted. If an operator intends to upgrade from restricted to standard or from standard to international standard there is no requirement to advertise these changes however the Traffic Commissioner will publish the application which could mean objections may be raised in regards to the operators application. All changes must be notified to the traffic commissioner in advance of any changes to the operations by completing the mandatory forms. If say the operator wishes to upgrade from restricted to standard the operator cannot carry goods for hire and reward on a restricted licence until the application has been granted or has an interim authority. Likewise with a standard operator applying for an international licence the operator cannot undertake an international journey until the application has been granted.

Adding or changing operating centre/s

This is considered a major variation an will require any intended changes to be notified at least 9 weeks in advance by completing the mandatory forms. The changes will need to advertised 21 days prior or within 21 days of the application being received by the Traffic Commissioner. If the operator is simply changing the correspondence address the Traffic Commissioner can be notified by amending the details on the licence within 28 days of the change online using the operator self-service.

Changes to the structure of the business

In the case of an entity acquiring a business and it’s assets that already has an operator licence normally it will complete the relevant applications and notifications to extend its existing licence to cover the new operating centres, geographical locations, vehicles by completing the mandatory forms.

Be aware however, that licences are only valid to the operator they are granted to and cannot be transferred to another person or entity. Any change in the ownership of the business (such as on a sale of the shares of a corporate operator) require an application for a new licence.

If the entity is a partnership and a new partner joins, there is a change in control of the organisation, the operator’s only obligation at this stage is to notify the Traffic Commissioner in writing. This must be done as soon as possible and where practicable prior to the change taking place. The Traffic Commissioner will then make considerations in regard to the change and whether the change is to the legal status of the business and if a new licence is required.

If the operator is a company, a change to directors is not classed as a change of ownership and the operator must notify the Traffic Commissioner within 28 days of any appointment or retirement of directors.

Failure to communicate with the Traffic Commissioner in all of the above scenario’s can lead to action being taken against the operator’s licence.

Insolvency and entering administration

Unfortunately licence holders can find themselves facing the risk of insolvency. If they enter into administration the administrator can apply to the Traffic Commissioner to continue the licence for an agreed period of time. If an operator becomes bankrupt or goes into liquidation or receivership they must notify the Traffic Commissioner within 28 days and surrender their licence. It is recommended that in such a situation, where financial standing clearly will be lost, that legal advice is sought.

Convictions, Fines and Prohibitions

As an Operator Licence holder you must notify the Traffic Commissioner within 28 days of any convictions which, under the terms of the Rehabilitation of Offenders Act 1974 are not spent and which affect the good repute of the Operator Licence holder, Partners, Directors or Majority Shareholders, Employees, Agents, Transport Manager and Drivers.

Notifiable convictions

 Failure to maintain vehicles
 Vehicle testing & plating
 Drivers hours & records
 Driver licensing
 International road haulage permits
 Forgery of licence documents
 Overloading of vehicles
 Speeding
 Use of mobile phone whilst driving
 Parking restrictions – remember this one from earlier?
 Unlawful use of vehicles
 Illegal dumping of waste

Any ‘Serious Offence’ Level 4 conviction eg a fine exceeding £2,500 or a custodial sentence has been imposed.

Fixed Penalties

Fixed Penalty Notice’s should be treated as a conviction, and details should be sent to the Traffic Commissioner.

Prohibitions

You must write to the Traffic Commissioner with the findings of the investigation, identifying the shortcomings that lead to the prohibition along with actions taken and evidence of all revised procedures introduced to prevent a repeat incident. Include with the letter all supporting documentation, a copy must also be sent to the DVSA Area Manager.

Supporting Information

An essential component of any correspondence sent to the Traffic Commissioner is to communicate the details of any subsequent investigation carried out by the Operator Licence Holder regarding a conviction or fixed penalty, i.e. the time and date of any investigation, who was present, the findings of the investigation, the outcome of the investigation, any training and support subsequently offered as a result of the investigation. If disciplinary action was taken what was the result i.e. warning / dismissal.

The Operator would be well advised to review any current policy created to avoid such convictions, issue a toolbox talk, memo or updated policy to be signed off by all relevant employees in order the Operator can fully demonstrate to the Traffic Commissioner that they have reacted appropriately within the timescales required and that the Operator is fulfilling their due diligence in regards to their undertakings.

Copies of all documents and proof of postage of all communications with the Traffic Commissioner regarding any conviction / fixed penalty notice must be held on file for future reference.

For further information on the Senior Traffic Commissioners statutory guidance and statutory directions please go to https://www.gov.uk/government/collections/senior-traffic-commissioners-statutory-guidance-and-statutory-directions

If you need help or would like to better understand your obligations in terms of what and when to communicate with the Traffic Commissioners Office please contact Barry Hood on 01373 593 24-7 for a free no obligation consultation. Or you can email barry.hood@pro-tect-solutions.com