The consequences of missing the Driver CPC deadline

The deadline for drivers to have finished their CPC training – five years after the requirement was first introduced – is almost here, writes David Craik. But what are the consequences if they don’t?

It is an offence if a driver drives an HGV without a CPC, if you cause or permit another person to do so, or if
you fail to produce a driver Qualification Card (dQC) at the roadside.

Traffic commissioner (TC) Joan aitken has warned operators that they could find themselves before the TCs if their driver is found working without the dQC or fails to produce it. ayear ago she said action could be taken against the O-licences of those hauliers who fail to ensure their drivers carry out the necessary training.

The office of the TC says driving without the DQC or failing to produce it will carry a maximum fine of £1,000
for both the driver and the operator licence holder. “Driver CPC is not an optional extra; the industry has
been given plenty of notice of the deadline and any offences will be reported to TCs,” a spokesman says. “Vocational licence holders and operators could find themselves appearing before TCs to examine the circumstances. licence undertakings are a key part of compliant operating, including observing the laws relating to the driving and operation of vehicles. If operators don’t meet these responsibilities, TCs may
consider regulatory action.”

The office of the TC adds that it was “delighted” by the high level of compliance by operators and drivers ahead of the PCV CPC deadline a year ago and expects that to be mirrored in the road haulage industry.
“There had been apprehension in the bus and coach industry that drivers might not be ready. in fact, drivers
and operators had heeded the messages about the deadline,” the spokesman adds. “Aitken, the lead TC for driver CPC, hopes that the hGV industry will prove to be on the ball too and that the need for prosecutions or referrals to TCs will be limited.”

The DVSA says its enforcement officers already routinely check the driver CPC status of professional drivers. Following the deadline it will be able to check whether acquired rights drivers have completed
their training.

“After 10 September, if a driver is found not to have undertaken either the periodic or initial CPC training he/
she will be reported for prosecution and also reported to the TC,” a DVSA spokeswoman says. “If a driver has undertaken either periodic or initial training but is unable to produce a DQC, they will be issued with a fixed £50 penalty. A verbal warning will be issued if the driver has just applied for the card but has not yet received it. This is already the case with drivers who have not undertaken the initial training and with PSV drivers.”

No amnesty period
Will there be an amnesty period as the new regulations settle in? “as the industry has been aware of the
requirements for years, no amnesty period will be considered. Checking for driver CPC is part of every
roadside check we undertake and will continue to be so, both in the run-up to the September date and beyond,” the spokeswoman explains.

CPC prosecutions have already begun. earlier this year a driver with Surrey firm Dave Mundy Strip-out was found not to have a driver CPC initial qualification and therefore should not have been behind the wheel. The driver was fined £400 by City of london Magistrates for driving an HGV without the required CPC, and the company was handed a fine of more than £2,000 for the CPC and other offences including not having
an HGV licence.

"Offending drivers will be immediately prosecuted together with the o-licence holder,” says Anton Balkitis,
solicitor with Rothera Dowson. “As with any prosecution, first-time offenders will be treated more leniently than serial offenders and the conviction will have to be reported to the Office of the TC with the possibility of a call to a professional conduct hearing or, for the operator, a call to a public inquiry. No doubt the senior TC’s guidance shall be amended to incorporate some form of scale for disposal probably depending on the length of time without a card, whether it is a deliberate, inadvertent, or first-time offender.”

He adds that The Magistrates’ Sentencing Guidelines are unlikely to be of any help to courts when sentencing for the offence.

No excuses for non-compliance
“I suspect it will be left to TCs to come up with starting points for assessment of conduct in these cases,” Balkitis states. “Drivers and O-licence operators must comply with these regulations and publicity over the changes has been prevalent for many months, so I doubt any excuses shall be accepted for non-compliance.

“Pleading ignorance has never been an excuse at law and it is hard to believe that an operator did not know of the provisions or the date by which they must comply. The message is simple, if a driver does not have a
completed qualification card, he/she must not drive after 10 September and the operator must not permit him/her to do so,” he adds.

“You have to drive to commit the offence, so don’t until you are suitably qualified.”

James Backhouse of Backhouse Jones Solicitors expects roadside enforcement to be strict. “This was the case with the PSV sector last year with the most common breach being failure to carry a driver card. The additional issue was that if there was a serious accident, an insurer could seek indemnity for its outlay from the insured if the driver did not hold a CPC after the deadline,” he says.

“This can happen now for vocational driving entitlement and, although not yet determined, an insurer that has a significant outlay may look to see if it can avoid indemnity. It would have to pay out the third-party but might seek recovery from the insured.”

Jack Semple, director of policy at the Road Haulage Association, says he is worried about driver agencies
being ready. “A number of agencies seem to have woken up to the requirements of Driver CPC and how it might affect their businesses quite late in the day,” he says.

“However, the majority of hauliers will already be seeing CPC as an opportunity to improve their business
as well as a legal obligation. We welcome the robust line on compliance. Any firm that has not heard of CPC should not be in haulage.”

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Appealing against a TC’s decision: top tips

If you're appealing to the Upper Tribunal about a traffic commissioner's decision, here are the 12 things you need to know.

1 Launching an appeal
Appeals against a TC's ruling must be made to the Administrative Appeals Chamber of the Upper Tribunal (UT). An operator has 28 days to appeal from the TC’s written decision but the tribunal may agree an extension. Forms are found on the tribunal’s website. “You can appeal as of right,” says James Backhouse, transport lawyer and director, Backhouse Jones. A statutory right to appeal a TC’s ruling extends to the police, local authorities, planning authorities, the RHA and FTA, the British Association of Removers and trades unions. Neighbours objecting on environmental grounds cannot appeal but may be invited to participate by others.

2 What the Upper Tribunal covers
Hearings are heard in London or Glasgow by a panel of three judges. The UT deals with HGV appeals relating to O-licences and operating centres and PSV appeals relating to bus operators and services. A right of appeal arises when a TC:

  • refuses to grant a licence or vary an existing licence;
  • attaches conditions to the licence or allows fewer vehicles than applied for;
  • revokes, suspends or curtails an existing licence;
  • disqualifies an individual or a company.

“The most common grounds are where a TC attaches conditions to the licence or revokes, suspends or curtails a licence which can lead to an operator having to cease trading or lose valuable contacts,” says Anton Balkitis, transport lawyer and partner at Rothera Dowson. Grounds for appeal may be technical – the operator claims that notice of the public inquiry (PI) had not been received, for example.

3 Who are the judges?
Each panel includes a High Court judge and two specialist judges, not from the legal profession. “They have experience in transport operations and transport law and include captains of industry, ministry officials or members of a transport association,” says Balkitis. Former deputy TCs Mark Hinchliffe and Frances Burton have both sat on tribunals. Judges are independent of current TCs.

4 Timescale
The tribunal invites responses from interested parties including the operator (if he is not the one appealing); statutory objectors, representors and the Secretary of State (or equivalent in Scotland or Wales). When it is ready the tribunal lists the case for hearing and the operator (appellant) is given at least 14 days notice and usually more. “The date should be offered within six weeks of readiness,” says Balkitis. “The tribunal tries to turn everything around within 16 weeks,” says Tim Culpin,
partner at transport lawyers, Aaron & Partners. Expect your appeal to be heard within three to four months of contacting the UT.

5 Preparing an appeal
Operators can represent themselves but it’s best to have legal advisors. “A person who represents himself has a fool for a client,” says one lawyer. The representative could also be a friend or a relative, someone from Citizens Advice or a union. The tribunal will ask the Traffic Area Office (TAO) for relevant papers, including the PI transcript. The operator and other parties must send the tribunal copies of documents they rely on for their case, if not already supplied by the TAO. The operator then receives a bundle of documents identical to those held by the tribunal. “An operator representing himself will find the process daunting and seldom have the expertise to present their case in a fashion likely to lead to a successful outcome,” says Balkitis. “The bundle of documents will be complex and vital points can be missed without a legal eye to assess their relevance.”

Preparation is essential. “Read the bundle, know what’s in it and mark pages you want to refer to,” says Backhouse. “The lawyer should send a skeleton argument to the tribunal before the hearing. You don’t have to but it makes things run more
smoothly on the day.”

The argument should focus on facts: was there a misunderstanding? Any errors by the TC? Was the outcome too harsh? The operator can ask the TC (or the tribunal if the TC refuses) to postpone action against his licence until after the appeal. If you decide to drop your appeal make a decision at this stage.

6 Acceptable evidence
A UT appeal rarely admits fresh evidence because it is a review of the TC’s decision and reasons. New evidence will only be accepted if the UT believes it serves the interests of justice. The UT is concerned to ensure the TC applied the correct tests in reaching a decision. It looks at whether:

  • the TC was wrong or misdirected themself about the law or the evidence;
  • took into account any matter which should not have been considered;
  • failed to take into account a matter which should have been considered;
  • showed bias in the conduct of proceedings, refused the right to be heard or failed to clarify what was alleged against the licence holder.

7 At the appeal
Appeals are called review hearings and proceedings are informal and public. Neither the tribunal nor representatives wear robes or wigs. Operators should arrive early to get to know the court layout and its staff. The appellant or their representative speaks first, explaining the grounds for appeal. Other parties follow. This could include DVSA where an impounding appeal is
being heard. Tribunal members may ask questions at any point.

8 Decisions
The tribunal may give its decision at the hearing’s conclusion or at a later date. Either way, it draws up a formal order setting out its decision and sends this to all the parties concerned.

9 Postponing a hearing
If you are unable to attend, let the UT know, setting out your reasons. The judge may decide to hold the hearing without you and the same applies if you simply don’t turn up. Any delay en route should be communicated. If you have a good reason for absence it may be possible to get the case re-listed.

10 Chances of success
In 2013, 90 appeals were lodged and 27 allowed, around one third. This year 65 appeals have been lodged and nine allowed, but some are still awaiting hearings. “Most unsuccessful appeals are where the operator doesn’t turn up,” says Backhouse, who claims to win nine out of 10 appeals.

11 What an appeal costs
A lawyer may charge £2,500-£3,000. Factor in travelling costs to London or Glasgow and time away from the business. Fortunately, appeals rarely take as long as a PI and Backhouse reckons most last one to three hours. “Everyone’s read the transcript in advance,” he says. The service of the UT is free but it can award costs against vexatious claimants, although this is rare.

12 Appealing against the Tribunal's decision
The UT can set aside its decision where procedural errors occurred. A request should be sent within one month of the tribunal’s written decision. An appeal against the UT’s final decision can be made to the Court of Appeal (England and Wales) or the Court of Session (Scotland) if it’s wrong in law. You must have permission from the UT or, if it refuses, from the court.

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