Special Report

The Five Biggest Challenges facing

vehicle operators in the Not-for-Profit
Sector

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 • Not appreciating the importance of the S19 Small Bus

Permit

• Not understanding how to check a driving licence

• Lack of awareness regarding what ‘Hire or Reward’ means

• Confusion over ‘New’ licence holders (post 1996) driving

minibuses

• Not meeting H & S obligations relating to Managing Road

Risk

Not all organisations face all challenges and some are specific only to
minibus operators but ignorance is never considered to be a defence.

Any group operating vehicles, or allowing/requiring staff or volunteers to

use their own vehicles, needs to be aware of the key issues above. They
are just a sample of the most common challenges faced and not an
exhaustive list.

This Special Report highlights why raised levels of awareness regarding

the issues is so important but it does not contain all of the answers in
great detail. Following this report, however, you will receive a series of
articles looking in much greater detail at the key issues. You can, of
course, unsubscribe at any time.

Advanced Training Services are always happy to discuss any issues you
may have and perhaps help you find a Training Solution to suit your needs.
Our contact details are at the end of this Special Report and also on our
website: www.advancedtrainingservices.co.uk

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We are very happy for you to forward the report to any contacts that you
have who might appreciate it, as long as it is not changed in any way. This
report is copyright Advanced Training Services 2008.

One thing to make clear at the start is that neither this Special report, nor
any other article written, is claiming to give legal advice. Some of things
mentioned in the articles are yet to be tested in a court of law and, until
they are, we are often working on the consensus of informed opinion.

Even Government agencies, such as the DVLA should they respond to a

question in writing, do not claim that they offer legal advice!

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Challenge One:
Not appreciating the importance of the S19 Small Bus Permit

This challenge, as things stand at the moment, relates just to those

organisations that operate minibuses i.e. a vehicle that has been built or adapted
to carry between 9 and 16 passengers. There have been proposals to extend, at
some point in the future, the permit system to also include vehicles that can
carry less than 9 passengers

A driver with a ‘D1’ entitlement that was gained when passing a UK driving test
prior to 1997 would usually have a restriction code attached to it (which is why it
is known as a ‘restricted D1’). On older licences it was code ‘1’ and on newer
licences it has become code ‘101’. Both mean the same thing – the ‘D1’ licence
entitlement is only valid if the vehicle is not being operated ‘For Hire or Reward’.
Understanding what ‘Hire or Reward’ means is looked at later in this report and
will also be covered in a later article.

It is probably true to say, though, that most minibuses used in the not-for-profit
sector are operated for ‘Hire or Reward’. On the face of it, then, a driver with a
restricted ‘D1’ licence can not legally drive the minibus. If this is the case most
voluntary sector work could not continue.

However, this is where the Section 19 Small Bus Permit comes in. In essence, by
obtaining a permit for the minibus (which is only available to a not-for-profit
organisation), and displaying the accompanying disc in the windscreen, the ‘Hire
or Reward’ restriction on the ‘D1’ entitlement is effectively nullified.

This presupposes that the minibus is being used within the terms of the permit
and that the disc is legible and being displayed in a way that makes it easy to
read from outside the vehicle, and not in a position that affects the view of the
driver.

Both the permit itself and the disc are stamped with the same number and an
organisation must be able to produce, for inspection, the permit that matches
the disc in the vehicle. The permit itself is no longer required to be kept in the
vehicle, although some organisations have a photocopy of it on board.

A permit is required for each vehicle that could be on the road at any one time.
They are not vehicle specific so can be moved between vehicles and it also makes
sense to have a small number of spare permits in case a vehicle is hired in
temporarily or perhaps a permit disc disappears.

In addition to the regional Traffic Commissioners there are a number of permit

issuing bodies including the Community Transport Association. Generally, when
applying for a permit, an organisation would be expected to state its intentions
on a number of issues such as Driver Training and Vehicle Maintenance.

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VOSA (Vehicle and Operators Services Agency) publish a Guide for Operators
relating to Section 19 permits and it can be found on their website
(www.vosa.gov.uk) by entering ‘PSV 385’ in the search box. It clarifies a variety
of issues relating to permits, one of the most important is that permit minibuses
cannot carry the general public, only passengers that are in some way affiliated
to the organisation and specified on the permit.

In a Community Transport environment groups wishing to use the minibus would

pay a fee to the organisation to show an affiliation to it. They are then covered
by the permit.

Challenge Two:
Not understanding how to correctly check a driving licence

Any organisation that is going to allow someone to drive their vehicles has a
Duty of Care (a concept we look at later) to try and ensure that it is being done
safely and legally. Anyone driving a vehicle on the road must have a valid,
signed licence with the correct entitlement on it for the vehicle in question. To do
otherwise is a serious offence, especially as without the correct entitlement
there is potentially no insurance, another serious offence – a double whammy!

From a legal point of view if an organisation, through not properly checking a

drivers licence, ‘allows, causes or permits’ that driver to commit those offences
they have potentially also committed an offence.

All too often, though, the person in the organisation who is expected to check
the licence has had no training on the subject. This report gives some of the
main points but the subsequent article has more detail.

There have been many different forms of driving licence over the years but for
some time now the UK has been in a process of harmonising with the rest of
Europe. One of the main results of this process was that from 1st January 1997
the UK no longer gives a ‘restricted D1’ minibus entitlement after a car test pass.
We know these drivers as ‘new licence holders’ and a later part of this Special
Report looks at the particular issues for those drivers where an organisation
operates minibuses.

This section presupposes that the driver passed their UK car test prior to 1997.
Depending upon how long ago that was they will either have the UK licence
entitlement of ‘A’ (car) and ‘E’ (moped) and possibly ‘D’ (motorbike), or the more
modern European category of ‘D1’.

In both cases the entitlement to drive a minibus is only valid if the vehicle is not
being operated ‘For Hire or Reward’. It is important to fully understand what this
means and it is looked at in a subsequent section. As the previous section
indicated if the only restriction against the’D1’ is ‘1’ or ‘101’ then a Section 19
Small Bus permits resolves that issue.

When registering a new driver it is important to get them to declare certain

things and to sign that declaration. Physically checking their licence (not a
photocopy) is also a key part of the checks that should be made.

We have looked at what entitlements they have and the old style ‘A’ or modern
‘B’ (car) licence is fine for cars and MPV’s and there are no weight limits for pre-
1997 drivers. The older ‘A’ or modern ‘D1’ covers minibuses, again with no

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weight limit. A check should be made for any added restrictions against the
entitlements.

On an older European paper licence restriction codes are usually explained on

the reverse. It would be very unwise to ignore the code ‘6’ or ‘106’ (restriction to
automatics) if your vehicles are manual!

On photocard licences the codes are in the booklet that comes with the licence
but if you go to www.direct.gov.uk and search for ‘licence restriction codes’ you
should find a full list.

We also need to check the date of expiry of the ‘A’ or ‘D1’ entitlement; it should
be the day before the drivers 70th birthday. Photocard licences are only valid for
a maximum of ten years but the reverse of the card shows the entitlement expiry
dates. As photocard licences were first issued in 1998 they are now starting to
expire. The organisation must know when a drivers licence is about to expire, so
that they can ensure it has been renewed when required.

Be wary if there is a three year period of validity for the photocard licence, it
could mean that the driver has a medical condition that may affect insurance.

Other obvious things to check are name and address, date of birth, date of test
pass (if shown), signature (on old paper licences) and endorsement history. With
the latter you must see the paper counterpart that matches the photocard
licence. You can tell if it matches because the two digit issue number (found at
the end of the driver number on the photocard) is repeated on the counterpart
with the letter ‘A’ after it.

On a final note, if you have any doubts about a drivers licence you can contact
the DVLA on a special premium number (09061 393837) and check. The proviso is
that the driver must be with you and give their permission to the DVLA first. This
call would be charged at a higher rate than a normal call but the huge benefit is
that you get straight through to a human being!

There is more detail on this subject in an upcoming article.

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Challenge Three:
Lack of awareness regarding what ‘Hire or Reward’ means.

As we saw in the first Challenge there is normally a restriction on a ‘D1’

entitlement listed as ‘1’ or ‘101’. This means that the person has an entitlement
to drive a minibus, but not if it is being operated for ‘Hire or Reward’.

This restriction does not have to be a major issue, as a non-profit organisation

can obtain a Section 19 Small Bus permit (looked at in Challenge One) for each of
their minibuses. This effectively nullifies the licence restriction.

Experience has shown, however, that quite a few organisations have not fully
understood what ‘Hire or Reward’ is and, as a result, have never obtained the
S19 Permit. The net effect of this could be that if the vehicle is found to be
operating for ‘Hire or Reward’ the driver, by definition, does not have the correct
entitlement on their licence and also, potentially, they do not have any
insurance. As mentioned earlier these are both quite serious offences.

Even worse, this may come to light because of some incident on the road, which
would add insult to injury!

When the ‘Hire or Reward’ or permit issue is raised within organisations that we
visit there are a number of things that we hear:

“But we don’t charge fares”

“We don’t make a profit”
“We don’t pay the drivers, they are volunteers”
“What’s a Section 19 permit?”

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To fully protect the organisation, the driver and the passengers the organisation
must know if the way they are operating the vehicles could be construed as ‘Hire
or Reward’.

One of the biggest mistakes made is to think that ‘Hire or Reward’ relates in
some way to the driver when, in fact, it really relates to passengers.

The following definition is taken from the VOSA publication ‘Public Service
Vehicle Operator Licensing - Guide for Operators”. It can be found on the VOSA
website www.vosa.gov.uk by searching for ‘PSA 437’.

“Hire or reward is any sort of payment which gives a person a right to be carried
on a vehicle regardless of whether a profit is made or not. The payment may be
made by the person himself, or on his behalf and may be a direct payment (such
as a fare or other payment made directly in respect of the journey) or an indirect
payment (such as a membership subscription to a club, payment for a bed in a
hotel, school fees or payment for concert tickets).
Although such indirect payments are usually made in respect of other services
(rather than for transport) they are nonetheless viewed by the courts as hire or
reward because anyone who had not made the payment would have no right to
be carried.”

A more simplistic definition can be found in the DVLA publication ‘Driving a

Minibus’ available at www.dvla.gov.uk search for ‘INF28’:

“Hire or reward encompasses any payment in cash or kind by (or on behalf of)
passengers which gives them a right to be carried.”

As can be seen profit does not come into it and it can be any sort of payment –
money or ‘monies worth’. It does not even have to be made by the passenger; it
can also be by someone else on their behalf. There have been numerous court
cases which have resulted in hefty fines when people get it wrong.

A upcoming article on the subject looks at a variety of scenarios in more depth

but if an organisation has the slightest doubt as to whether or not they are
operating their vehicles on a ‘Hire or Reward’ basis the it would seem to make
sense to invest in a section 19 permit. They only cost about £7 – compare that
with a fine that could be in the thousands!

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Challenge Four:
Confusion over ‘New’ licence holders (post 1996) driving

minibuses

In the world of European driving licences a lot changed on 1st January 1997 and
the changes have been a challenge to the non-profit transport sector ever since.

Up until that date, if someone passed their car driving test in the UK, as well as
the car entitlement, ‘B’, they also had on their licence the following entitlements:

• D1 - Minibus (restricted by code ‘1’ or ‘101’ – Not for Hire or Reward)

• C1 - Truck up to 7.5 tonnes

• D1+E - Minibus towing a trailer (also ‘1’ or ‘101’ plus code 119 – weight
limit does not apply)
• C1+E - Truck up to 7.5 tonnes towing a trailer (restriction ‘7’ or ‘107’
Max weight 8.25 tonnes)

From that date (if you could have got an examiner out of bed on January 1st!) the
UK harmonised with the rest of Europe and the only entitlement a driver gets is
‘B’ – a car licence. We know drivers in this position as ‘new’ licence holders.

A driver in this position MAY be able to drive a minibus, in the UK only, but there
are a number of conditions that they would need to satisfy. These conditions are
known as the UK ‘Derogation’. Closer inspection of the word shows that it is
linked with the word ‘derogatory’.

If you are speaking to a person in a derogatory way you are belittling them,
putting them down or lessening them and this is, in essence, what the
derogation does.

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The law is clear – with no ‘D1’ entitlement on the licence a driver can not drive a
minibus. However, by satisfying the terms of the derogation, the law is lessened
and does allow a car driver to drive the minibus, but in a more restricted way
than someone who passed their UK car test prior to that date.

One of the problems with law, as it exists when an act is passed in parliament, is
that usually no one really knows what it means. It takes court cases, perhaps
over some time, to establish what it means in the real world. This is where the
comment at the beginning of this Special Report comes in – how can anyone give
legal advice in the absence of court cases. Of course the real question is “Who
wants to be the first one in court?”!

Some of the terms of the derogation are cut and dried, others are yet to be
tested but, with Government guidance issued in 2006, we at least know what
they thought they had written!

So, what are the terms of the derogation? Listed below are the main conditions
and they only affect drivers who passed their UK test after 1996, or who passed
their test elsewhere in Europe and did not exchange their national licence for a
UK one before 1997.

• You drive on behalf of a non commercial body for social purposes but not
for hire or reward (unless operating under a permit)
• You are aged 21 or over

• You have held a car (category B) licence for at least 2 years

• You are providing your service on a voluntary basis

• The minibus maximum weight is not more than 3.5 tonnes excluding any
specialist equipment for the carriage of disabled passengers. Minibuses up
to 4.25 tonnes will be permitted in certain circumstances
• When driving a minibus under these conditions you may not receive any
payment or consideration for doing so other than out of pocket expenses or
tow any size trailer and you may only drive minibuses in this country.
• Drivers aged 70 or over will need to make a special application which
involves meeting higher medical standards.

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The terms above are quoted from the DVLA publication INF28, mentioned earlier.
Some are very clear. For instance someone could pass their test at 17, at 19 they
would have held their full licence for two years but they could still not drive as
they are under 21.

On their 21st birthday at least two conditions are met! If they drive for a non-
profit organisation, for social purposes, under a section 19 permit and the plated
weight of the minibus is not more than 3.5 tonnes for a standard minibus or 4.25
tonnes for an accessible minibus then two more conditions are met. The issue
relating to vehicle weights is also one that is much misunderstood and will be the
subject of a forthcoming article in the series.

When a driver reaches the age of 70, their licence needs to be renewed. If the
driver wishes to continue to drive a minibus under the terms of the derogation
then they would have to make a full application for a new licence and that would
include having to pass the bus drivers medical.

A new licence holder cannot tow a trailer (of any size) with a minibus and the
potential ability to drive minibuses on a car licence only exists in the UK so they
cannot drive abroad.

That just leaves the issues relating to whether the driver is driving on a
voluntary basis and receiving no more than out of pocket expenses. We have
‘saved the best ‘til last!’ This, for many organisations, is the key factor. One of
the biggest reasons for that is the lack of clarity within the wording of the
Derogation, although guidance published by the Department for Education and
Skills (the DFeS as they were then) and by the Department for Transport (DfT) in
2006 at least puts into writing what they ‘thought’ the wording that they had
written meant!

There will be an article in the series which looks at this particular issue in more
detail. For the purposes of this Special Report the main points are that for
someone to show that they meet these terms they would ideally be a genuine
volunteer, totally unpaid with any expenses just covering what would be
considered reasonable.

However, should the person be in receipt of a wage while driving’ the position
becomes much more complex. What the guidance from the Government does is

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effectively introduce a new class of minibus driver, known as an ‘incidental’
driver.

This would refer to a person who is being paid, but for something other than
driving (perhaps in the case of a teacher for instance) and that the driving of the
minibus is purely ‘incidental’ to what they are really doing.

For this to work then at a fundamental level there can be absolutely no

compulsion to drive, so it cannot be in the job description for instance. In other
words there has to be a right of refusal, without the possibility of any negative
consequences. There are a number of other considerations and these will be
covered more fully in the upcoming article.

The full text of these publications can be found by searching for ‘incidental
minibus drivers’ on www.teachernet.gov.uk and www.dvla.gov.uk for the DfES
and DfT documents respectively.

Challenge Five:
Not meeting H & S obligations relating to Managing Road Risk

Every organisation, be it non profit making or commercial, has a Duty of Care to

(amongst others) its employees and/or volunteers.

In the view of the Health and Safety Executive (HSE) one of the most dangerous
things we do, on a day to day basis, is drive on the road. If an organisation
expects its staff or volunteers to drive on the road on its behalf, whether using
their own or the organisations vehicle, it needs to show that it is doing
everything reasonable to manage the risks associated with that act.

Obviously there are a lot more considerations relating to Health and Safety but
Managing Occupational Road Risk (MORR) is, and should be, high on the list of
priorities. This is especially the case since the 6th April 2008, the date upon
which the Corporate Manslaughter and Corporate Homicide Act 2007 came into
force.

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This Act means that an organisation can be prosecuted where a gross breach of
its Duty of Care results in a person’s death. This applies right across an
organisation’s activities but, of course, includes things that occur on the road. If
something does happen a number of things would be assessed including what
policies were in place to reduce or manage risk, the organisation’s attitude to
risk and the availability of training for staff and volunteers.

One particular publication that would guide the HSE and the Police in their
investigation, and the courts in their deliberations, is the Health and Safety
Executive publication ‘Driving at Work’. It can be found at www.hse.gov.uk by
entering INDG382 in the search box.

In the introduction to the publication there is an estimate that one third of all
incidents on the road involve someone who is at work at the time. This may
account for over 20 fatalities and 250 serious injuries every week. Police
Officers who investigate road deaths are soon to be issued with guidance notes
on corporate accountability.

They would certainly be looking at the roadworthiness of the vehicle (this is a

very important topic and the subject of another article in this series) and at
whether the vehicle was appropriate for the work being done. Who owns the
vehicle in question is irrelevant, once an organisation takes a booking from a
passenger they are the ‘operator’ in the eyes of the law. They would also look at
what training the driver received, whether their competence was assessed and
also whether what they were expected to do during a day was reasonable. It is
the view of the Department for Transport that a volunteer driver, or a person
whose primary function is not driving, is not subject to Drivers Hours legislation.

Having said that it would be expected that an organisation would take positive
steps to ensure that no driver was asked to drive for an unreasonable length of
time and that policies were in place to ensure that drivers were well rested.

An organisation that adopted a formal training programme, such as MiDAS (The

Minibus Driver Awareness Scheme) or ‘MiDAS for Car and MPV Drivers’ and who
not only adopted it but made sure that it was carried out properly, would
obviously be in a better position than one that sent a driver out without any form
of training, or perhaps just sent them ‘around the block’ a couple of times with
the person who checks the oil on Mondays!

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Any well rounded training programme would also include elements relating to
other potential risks such as the use of mobile phones, safe use of equipment on
the vehicle, what to do if the vehicle breaks down, seat belt policy, reporting
concerns Etc. They could even offer a course, such as MEEP (Minibus Emergency
Evacuation Procedures) on what to do if a vehicle caught fire!

Organisations have differing opinions on the topic, but many offer their on-road
staff, or volunteer’s, courses in First Aid.

The list could go on of course but it is all about what is reasonable – and that
word is not really defined before a driver and vehicle goes on the road, but (and
it is a sizable but!) it would certainly be looked at closely by plenty of people
with the benefit of hindsight after an incident!

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We hope that you have found this Special Report of interest. Also, that
the series of articles to follow, giving more depth on topics above (and
other issues), will be of further interest. You can, of course, unsubscribe
at any time.

Advanced Training Services are approved by the Community Transport

Association as Training Agents for MiDAS (MiDAS) and (Car/MPV) and PATS
(The Passenger Assistant Training Scheme). This means that we can train
Drivers and Passenger Assistants but can also ‘Train the Trainers’.

Courses can often be arranged on-site, subject to reasonable numbers, so

if we can be of assistance in any way our contact details follow:

Advanced Training Services

Tel: 0845 094 8091
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Fax: 0845 094 8093
Web: www.advancedtrainingservices.co.uk
Email: info@advancedtrainingservices.co.uk

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