Here's a copy of a letter I've just had published in Bus & coach Buyer this week (27/4/2018) This has been cut down slightly for the published edition:
The s19 debacle is a mess. There has been a basic misunderstanding for years as to what is “hire and reward”.
There is the concept that it is whether or not the driver gets paid. That is my opinion is a false belief. I run a couple of vintage buses which rarely make a profit and there is no money to pay me to drive them, yet I have to have the PSV licence and DCPC. I am not driving for hire or reward. The company “could” be viewed as one of the “not for profit” concerns, but as it is a registered private company with a couple of shareholders, it is viewed as running with a vied to making a profit.
The other concept of “hire and reward” is for the hire of or right to travel in the vehicle. This I would suggest is a more realistic view and is also in agreement with various laws both in the UK and in Europe. The UK laws and case law date back to the early days of horse-drawn buses and hackney carriages, back to the 1862 quaintly named Town Police Clauses (Miscellaneous Provisions) Act which dealt with hackney carriage licencing amongst other things. Various Road Traffic Acts have dealt with the construction and use of motor buses, the licencing of them (not always as crystal clear as they could be), and various High Court interpretations of those laws. In almost every case “hire and reward” has meant to pay for the right to be carried by bus, coach or taxi.
There is also the matter of unfair competition, a more recent entrant into the argument.
Since then the European Courts have more clearly defined matters in various cases dating back to about 1979, before the UK was fully in the common market. If we look at the case of Glockner Ambulanz, referral there is made to the status of “undertakings”
https://eur-lex.europa.eu/legal-content ... 9CJ0475#MO.
Paragraph 19 clearly defines an “undertaking” for the purpose of competition laws.
Applicability of Article 90(1) of the Treaty (now Article 86(1) EC)
19 As regards the first of those points, the concept of an undertaking, in the context of competition law, covers any entity engaged in an economic activity, regardless of the legal status of the entity or the way in which it is financed (Joined Cases C-180/98 to C-184/98 Pavlov and Others [2000] ECR I-6451, paragraph 74). Any activity consisting in offering goods and services on a given market is an economic activity (Pavlov and Others, paragraph 75).
Therefore we can safely say that as CT groups engage in economic activity, regardless of the way they are financed, they come under various Competition laws.
If we look at the ECJ Lundberg case, this deals with the requirement for tachographs when conveying own goods in lorries. The law has been reported by the EU as applying equally to conveyance of passengers and helpfully defines what we call “hire and reward” actually is.
We also have the case of Rout-v-Swallow Hotel in the UK courts where a restaurant provided free coach and minibus transport for its customers. It was deemed that as part of the cost of the meal went to pay for the free coach, an Operators Licence was required as it was “hire and reward”. So this would also blow out of the water the DfT’s argument for old folks luncheon clubs! There is one near me on the Romney Marsh which operates a fleet of 3 minibuses at £5 a trip taking people to and from their day centre. That is, according to the above laws, “hire and reward”.
I don’t think there’s any PSV operator who would want to see the CT groups put out of business as most of them do a good job. But they need to obey the law, and the UK government needs to realise that their guidance is often wrong or misleading, usually to suit their own ends. Maybe some of the billions that have been raised over the years and given to CT groups could have been channelled into proper PSV driver training instead of the watered-down version their drivers have undergone. Has anybody actually worked out the economics for running a CT group? For instance in my area there’s a number of charity sponsored minibuses that sit around all year doing very little. Maybe if the groups that “benefit” from those buses had hired one from a PSV operator, it would have been far cheaper.
There’s been hearsay reports of second hand charity minibuses being sold after 10 years with very little mileage on the clock! On the other hand there’s CT groups with over 500 minibuses, usually coming with highly paid executives using volunteers to drive the minibuses! It is time for them to get legal and get their own house in order and to obey the law. If any PSV operator ran in those circumstances, it would have been shut down years ago. It is also time the CT groups read up on what the law actually says rather than using rhetoric all the time.