Balancing road safety requirements with your commercial needs.
Welcome to Elizabeth Caple Solicitor, specialist in Commercial Road Transport Law.
A print out of the full results should be requested on all occasions and attached to the actual inspection sheet. One DVSA Traffic Examiner recently reported during an Inquiry that if no report is produced then there is not sufficient evidence that a test has been done.
Ignore the Regulations that enable an Operator to download digital data from vehicle units at 90 day intervals. To be proactive in your management of drivers and missing mileage a unit download should be done at least monthly, ideally more frequently. This way a prudent operator can challenge findings in the data when it is still quite fresh in the driver's mind.
Has your own equipment been calibrated or have you asked your garage to confirm this? An uncalibrated roller brake tester can invalidate the results of the test.
No, whenever there is a change to the business name or entity the operator licence must change to reflex this. It is against the law for an individual to continue using a previous Licence.
I regularly assist Operators with this dilemma and make changes to ensure legal vehicle operation is occurring. The impact of not getting it right can be significant and tough penalties can be imposed by the criminal courts and the Traffic Commissioner.
Company Groups often restructure for very positive accounting and commercial reasons, but very often the Operator Licensing needs are overlooked until it is too late, often resulting in illegal vehicle operation. Even internal business restructures can have an impact on the Operator Licence.
It is imperative that you obtain expert transport legal advice from the outset and that all advisers, including your your Commercial Lawyers and Accountants, work closely together to ensure all is in place for when completion is due to take place.
Be on your guard though. Your Operator Licence conditions require that you should be able to continuously prove the required sums. The Office of the Traffic Commissioner can in certain circumstance ask for financial evidence from you and your Licence is at risk if you can not prove the financial levels for each of your vehicles. I can offer advice on how to prove your financial standing and how to make it work best for you.
One recent Operator applied for 5 more vehicles, was then found by DVSA not to be competent in terms of looking after the 10 that it already had and was called to a Public Inquiry for consideration of disciplinary action. It had to show real improvements on its current compliance before it would be allowed anymore. This was a costly and very stressful exercise for the Operator who would have benefited from addressing any shortcomings it had with its compliance well before it then decided to apply for more vehicles. I can assist in preparing your business well in advance of making the actual application and highlight any areas that the Traffic Commissioner may require improvement or reassurance on.
However, the responsibilities of a Restricted Licence holder , in terms of road transport compliance, are the same as a Standard Licensed transport operator and many prudent Restricted holders are now recognising that they need transport expertise within their organisation, and are employing qualified or experienced transport managers nevertheless. It is vital to assess your risk and your ability to manage this. I can assist with implementing systems to respond to your obligations in Law.
Make sure you seek expert and independent advice from a lawyer experienced in Operator Licencing to ensure your best interests are put first which will also optimise your chances of holding an operator licence again. Certain regulatory steps must be taken by you in such circumstances.
The vehicle was stopped by VOSA and the driver was found not to be using a digital card. The side mirror was also damaged and the driver accepted he had done in the yard that morning. As this vehicle was still specified on the other firm’s Operator Licence, the two prohibitions went against its licence and not the firm that was driving it. It also now runs the risk of having VOSA come in and inspect its systems due to the manner in which the vehicle was being operated and possibly. Don’t do anyone any favours.
Preparation of your case in advance is the key to success for any Operator at a Traffic Commissioner's Inquiry. A poorly prepared operator on the day will find their licence at risk. Traffic Commissioner's are stricter than ever now when it comes to non compliance.
How important is your operator licence to your business?
The score is based on annual test results and roadside stops. The lower your score i.e. red, the more likely you are to be pulled over. Anything below a Green score will seriously inhibit an operators ability to expand its total vehicle authorisation. On application to increase vehicle or trailer authorisation, if the score shows that an operator is struggling to meet the grade on the fleet it already has, then the grant of more vehicles may be disputed. An operator wishing to expand should plan well in advance and work on improving a poor score.
To comply with the present day legal requirements, a prudent operator should be assessing each individual at least every 6 months and more frequently when issues arise. Training does not have to be over sophisticated or expensive but to be effective it should focus on the critical issues that your drivers face each day to ensure they are not breaking the law.
Usually you will be asked to provide a sample of your vehicles for inspections as well as 15 months service and daily defect records. How should I prepare ?
The formal phrase used to describe this element of defect detection is a ‘first use check’. On EACH DAY of HGV operation the vehicle MUST NOT enter the public highway until it has first had key safety elements checked by the driver i.e. lights, tyres wheel nuts, battery security, steering…
There is a common misunderstanding that if the check is done the night before on return to the depot, this will be sufficient for operation the next day. Defects can develop or manifest themselves overnight hence the importance of checking the vehicle before use the next day. For example a vehicle could be vandalised, a tyre deflate or an oil leak establish itself overnight. Nor is it acceptable to allow your drivers to perform the defect check say at the point of his first break, even if this may only be half an hour down the road. If the vehicle does not undergo the check prior to leaving the depot that day any subsequent operation will not only be a potential threat to other road users but also a breach of the Operator Licence. One of the main reasons for disciplinary action taken by the Traffic Commissioner is for failure in the defect reporting system.
An Operator should regard this, as well as regular periodic servicing, as the most important element of its maintenance system. For the system to be effective it should include quality training for and supervision of all drivers, proper record completion, a follow through system when defects are detected and a record of defect rectified. V.O.S.A on request will expect an operator to provide a written defect sheet for each day of vehicle operation for at least a period of 15 months.
Not only is this system crucial but should dramatically reduce the likelihood of roadside prohibitions occurring.
This will depend in part on how many hours a week the transport manager is in attendance, how good he or she is at the job and how well you monitor their performance. Too many operators under estimate the role of a transport manager. To obtain and maintain an operator licence a standard licence holder must satisfy the requirement of "professional competence". This does not just mean that a qualified transport manager has to be in place, the role that individual plays has to be effective to ensure all areas of the transport operation are well managed on a continuous basis.
Many part-time transport managers can in no way fulfil this legal requirement. The Traffic Commissioners regularly penalise Operators who have poor compliance histories, very often due to an ineffective transport manager role. In the extreme of cases, some operators believe that it is acceptable to have a transport manager in name only on the licence i.e. the transport manager never attends on the operator. The latter will leave a Traffic Commissioner with no choice but to consider revoking the licence.
The legal requirement to have an efficient and regularly attending transport manager is there for a reason; road safety. Such an individual is required to ensure that key systems relating to the transport are not neglected and that the safety of other road users is not jeopardized.
A prudent operator would ensure the following:
• an effective system of new driver induction to include drivers' hours training
• thereafter refresher training for all drivers at 6 monthly intervals
• monthly analysation of their charts or digital card contents
• written records to show infringements have been raised with drivers, training offered and disciplinary action taken where necessary
• remedial action taken to address any pattern of infringements e.g. too much driving in a fourteen day period remedied by the provision of relief drivers
A good and effective system for driver's hours compliance hinges on the strength of a business' disciplinary procedure and the willingness of the operator to impose it.
Finally, DVSA acknowledge that even the best of operators experience infringements from time to time, but what they want to see is evidence of the above systems to show that the operator is proactive as opposed to reactive in it's approach to compliance.
To find out exactly how long you are entitled to drive for check the DVSA website: click here>>
Close up image of tachographs
Once a trailer is pulled on to the public highway, it is the responsibility and liability of the operator pulling it. On collection of a trailer, an operator should ensure there is a valid mot, the trailer has had its last safety inspection in line with its own maintenance schedule and a very thorough check should be performed to ensure the trailer is roadworthy. A written defect report should be completed to this effect. Particular attention should be given to the tyres. There is a common misconception that a trailer is the responsibility of the business it is hired from, particularly if the period of hire is very short. This is not the case. Poorly maintained trailers can seriously affect the compliance score on your operator licence so ensure you ask all the right questions and do the right checks first.
The operation has shown that the enforcement authorities will not tolerate any mobile phone use while driving an HGV and many infringing drivers have lost their livelihoods as a result. The Traffic Commissioner also has the power to discipline the driver's employer by taking action against their operator licence for non compliance with the law.
These cases have made it clear that there is a zero tolerance attitude now in the courts for mobile phone use and prudent drivers and vehicle operators would be wise to follow suit.
Supervision and Monitoring are the “hot topics” in operator licensing at the moment. It is no good having systems to deal with maintenance of the vehicles and management of the drivers unless the systems actually work. The way to ensure results is to supervise those who implement the systems. For example, who checks the drivers are actually doing their daily vehicle checks? Who checks that the outside vehicle maintainer is actually completing all areas of the service and completing the service sheets correctly? Who checks that the forward planning system is actually working? Who checks that driver’s hour’s disciplinary systems are being followed through? Who checks on a regular basis that all the conditions of your operator licence are been complied with?
As a holder of an operator licence you may be asked to show that you have “quality assurance measures" in place. Failure to monitor and supervise key systems relating to your commercial fleet is one of the main causes of Operators being called to disciplinary public inquiries.
