Taxi Driver Online

From this week's RouteOne magazine:

Enforcement of EU Regulation cannot be deferred, says High Court
By Tim Deakin - December 11, 201972
Community transport
Differing opinions have greeted a High Court decision not to declare that principles agreed by the Bus and Coach Association (BCA) and DfT about circumstances under which community transport organisations would need to hold an O-License are correct in law.

However, the court did conclude that there is no validity to DfT’s argument that a lack of certainty or clarity surrounds the test for determining whether an organisation is operating exclusively for non-commercial purposes. Because of that, it will no longer be possible for enforcement of EC Regulation 1071/2009 to be deferred. The agreed principles are likely to be part of future DfT guidance.

Decisions on non-commercial should be taken

Features of relevance, including the organisation’s size, the level of payments received and whether contracts have been won in competitive processes, will be considered when ascertaining whether it is exclusively non-commercial. If it is not, an exemption to O-Licencing cannot be made use of.

While acknowledging that such a test may be difficult, the judges say that “is not… a good reason for choosing not to enforce the law.”

Additionally, if an organisation denies that it is operating in breach of the regulation, that does not justify a refusal by DfT to act, says the court.

Some organisations representing community transport organisations claim that the decision is a victory for the sector when compared to what BCA originally wanted.

DfT now needs to focus on guidance

TAS Partnership Director John Taylor says: “At the heart of this case lies a fundamental difficulty in coming up with abstract interpretations of the meaning of non-commercial purposes. The moment a simple principle is reached, a countervailing case is likely to arise that renders it unfit for purpose.”

Mr Taylor adds DfT will now have to focus on producing more detailed and explicit guidance.

Says BCA’s Martin Allen: “This decision demonstrates that DfT cannot escape without enforcing the Regulation. It means some community transprot organisations will be required to obtain O-Licences.”

This matter has been going on for about 10 years now, ever since the growing band of s19 community bus permit operators mushroomed and elbowed in to the commercial bus tendering market.

It marks a victory for Martin Allen for his years of hard work and doggedness in persuing the matter not only through the courts here but through the European Commission offices, ending up with the result of the Judicial Review.

EU law is very clear as to what commercial operation is with "test cases" going back the the 1980s. It is basically any transport operation "carried out for fiscal activity, regardless of the status of the operator". The UK government and especially the DfT and its predecessors have chosen to ignore the law, the government more on cost grounds because they knew they could get PSV transport provided "on the cheap" using unlicenced operators. They refused to subsidise commercial PSV operators to run such services, but would quite happily make literally millions of £££s available in the form of grants for Community Bus operators to run services without the same sort of regulation applied to psv operations.

I would suggest this won't mean the end of the s19 minibuses, the original purpose of them was for such things as the local scout or church group for their own people and for their own purposes, not for hiring the vehicles out to others. But it seems those who work on a commercial scale will need to get properly licenced.

It has been intimated through EU offices that the same principles could be applied to unlicenced providers of hospital transport such as patient transport @45p a mile. It is for fiscal activity, it is not done out of social kindness. If anyone in the taxi/ph industry wants to chance their arm, quote this lot at the licencing officer.

We've been through it all before, well done Martin on getting this result.

This has dragged on, which I suspect was part of the DfT's master plan.

But will it be all in vain when we leave the EU on the 31/01/20?

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IDFIMH

No, it was clarified and passed by the EU earlier this year. and HMG has had to agree that all current EU laws will stay in operation until they get amended and if BoJoblojob keeps his sea.

But we digress...

I would say there's more chance of us all picking the same lottery numbers and winning

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lack of modern legislation is the iceberg sinking the titanic of the transport sector

So what does it mean for all these purple buses and community transports then if anything and who will be enforcing it ?

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lack of modern legislation is the iceberg sinking the titanic of the transport sector

It depends who is operating them and for what purpose.

Basically the only entities that will be able to operate on a s19/s22 permit will be things like scout groups, schools and religious groups who have their own minibuses and are used solely for their own pupils and do not make any charge for transporting passengers in any way, shape or form. Basically organisations where transport is not a major part of their business. So by definition a community transport company is in the business of transport.

Those used under any contract for conveying passengers for any form of payment will need a PSV O licence, the vehicles must be taxed and tested as psv, and the drivers must have pcv entitlement and driver cpc.

There's a few exemptions but these have been clarified by changes in the wording of the EC directive.