Legal advice obtained by Cambridgeshire County Council has prompted senior officials to “ask for an urgent response” from a major community transport provider over the licences used by their drivers to ferry thousands of children to school.
The council has asked the Fenland Association of Community Transport (FACT) “as to any action they propose to take in respect of the licensing of their drivers”.
Quentin Baker, director of law and governance at Shire Hall, admits the overall licensing requirement is “confused” but wants to clarify if the licences meet legal requirements.
His action follows a campaign by the Cambridgeshire Bus Coach and Taxi Association that maintains all community transport drivers must, by law, have a Certificate of Professional Competence (CPC). They also claim drivers under 37 must have undertaken additional training.
County councillors Alan Lay and Paul Clapp have joined forces with the association to press for clarification and last month undertook a ‘spot check’ at FACT’s March headquarters to check on drivers’ licences.
FACT – that also owns community transport schemes HACT (Huntingdonshire Association for Community Transport) and ESACT (covering East Cambridgeshire) – has always insisted its drivers are adequately covered by the Minibus Driver Awareness Scheme (MiDAS) administered by the Community Transport Association (CTA). This promotes a nationally recognised standard for the assessment and training of minibus drivers. FACT says the scheme has been designed “to enhance minibus driving standards and promote the safe operation of minibuses.
“MiDAS is applicable to any organisation operating or using minibuses, ranging from small voluntary organisations operating one vehicle, to local authorities operating large fleets of minibuses as well as school, colleges and universities.”
However this has been the subject of the legal challenge and Mr Baker, in a letter to Cllr Lay, says he has studied the complaint focussing on the allegation that CPC licences were required by FACT drivers “and that a failure to hold such licences would be a breach of the relevant regulations and potentially a criminal offence”.
He said a lawyer in his department was asked to undertake some legal research “and they confirmed that the legal position was confused due to apparent inconsistencies between the regulations and government guidance.
“As a result of this I concluded that the county council should obtain its own advice from counsel.”
Mr Baker says counsel’s opinion “is far from unequivocal” and there was evidence of “apparent contradictory wording” in the Department of Transport’s regulations.
Counsel had also pointed to other contradictions and had concluded that “in spite of there being some ambiguity arising from subtle differences” he was “inclined to the view” that community transport drivers required a CPC.
Counsel told the county council: “This is because even if the driving activities of a CTO can satisfy the requirement that they are ‘non--commercial’, they cannot satisfy the additional requirements that they be for ‘personal use’”.
Mr Baker said: “In practice, in appears from anecdotal evidence that the enforcing authorities, VOSA and/or police, have shown an equivocal attitude to similar breaches such as that in Staffordshire and it is understood VOSA (the Government’s Vehicle and Operators Service Agency) has inspected FACT on several occasions, none of which has given rise to any enforcement actions.
“In light of the above confused legal picture I have recommended and Gillian concurs (Gillian Beasley, chief executive) that the executive director for economy, environment and transport (Graham Hughes) write to FACT to confirm the advice CCC has received and to ask for an urgent response from them as to any action they propose to take in respect of the licensing of their drivers.”
Cllr Lay believes the response from Mr Baker “is at least a start” but he said he still awaited the outcome of an independent investigation that the county council is conducting into a whole series of issues connected with community transport.
FACT has instigated a complaint against Cllr Lay and Cllr Clapp following their visit to FACT offices last month; it is being investigated under the code of conduct by the county council.
However Cllr Lay insists he had permission to be there and said he showed his councillor credentials to each driver that he stopped and spoke to.
He said: “Of the four drivers we spoke to, only one had the full licences on display; the others only had an ordinary driving licence in their wallets. There was no aggression given by us- we were very polite.”
Steve Shannon of FACT – and the association’s MiDAS training officer, said today they had yet to receive the county council letter.
“We’ve said all along we have nothing to hide – we are happy to discuss these issues,” he said.
Mr Shannon said if CPC licences were required, FACT would want to know if this would be applied to all community transport providers in Cambridgeshire.
“Would it apply to small groups with volunteer drivers and everyone else in between?” he said. “Would it be a level playing field? That is what we need to clarify.”
Mr Shannon was also critical of the visit by the two county councillors. He said they had not called for an appointment and simply “turned up. Why didn’t the county council call beforehand and say they were coming?”
Dave Humphrey, vice chairman of the Cambridgeshire Bus Coach and Taxi Association, says the Driver and Vehicle Standards Agency (DVSA) “clearly states these drivers must take 35 hours of CPC training unless one of the exemptions applies. The MiDAS training FACT drivers are operating under has no statutory value and can be achieved in a day.
He said: “It appears no confusion actually exists in the law; the only exemptions from this training include the criteria ‘non-commercial’ and for ‘personal use’.
“ These are paid drivers operating the same home to school contracts as commercially paid drivers, so where’s the confusion?
“If the county council regards the safety of people’s children to be of the utmost importance there is no logical, let alone legal argument for allowing these drivers to operate with inferior training.
“The only confusion to us is why it has taken the council several months to get this legal clarification? “
Mr Humphrey added: “We are sure many of the parents of children being carried are not concerned with what happened in Staffordshire. This does not remove the council’s legal responsibility to ensure all drivers in Cambridgeshire are properly trained and legally licensed.”
He said the association has received an email from the DVSA confirming CTO drivers operating council contracts “required both a vocational driving licence and a driver CPC.”
Mr Humphrey said: “This means unless they have a full PSV licence all FACT and HACT drivers are operating illegally.
“And in a recent public inquiry Traffic Commissioner Keith Rooney ruled if money changes hands organisations need a full operator’s licence whether a profit is being made.
“This brings into question FACT’s entire licensing procedures.”
Councillor Paul Bullen, UKIP group leader at the county council, praised Cllr Lay and Cllr Clapp for their efforts.
“They have drawn attention to a serious anomaly and clarification is needed as a matter of urgency,” he said.
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