Tough new powers to allow the Vehicle and Operator Services Agency (VOSA) to crack down on illegal bus operators came into force on 1 October.
These new powers allow the VOSA to seize vehicles that have more than eight passenger seats - including buses, coaches, minibuses and large limousines - which are being used without a valid operator's licence. Previously the VOSA was only able to impound vehicles where they were in breach of insurance regulations.
Some nurseries have already been caught out for not having the correct licence. The Department for Transport is now urging all providers to read its guidance to ensure they are fully covered.
Vehicles impounded
Sam Cook, partner of Strawberry Field Nursery in Houston, Renfrewshire, is still in dispute with the VOSA over its position that a Public Services Vehicle (PSV) licence is required where minibus transport is supplied by a nursery or out-of-school care club.
'I know of at least four cases of the VOSA acting against local out-of-school clubs by having vehicles taken off the road,' he says.
'In our own case, there was an incident in 2007 when VOSA removed children from our minibus and also another local nursery's minibus, into a bus they had supplied,' he says.
On this particular occasion, Mr Cook's nursery and two others had dispatched minibuses to a school four miles away to bring children back to their premises to attend an after-school club. Mr Cook's minibus had 14 seats.
When the minibuses arrived at the school they were met by two officials from VOSA and a 60-seater coach. The children were then herded into the coach while the minibuses sent for them were impounded.
Sam Cook was told by one of the officials that he was driving without a PSV licence and that he therefore did not have a valid insurance. This was because his minibus had more than eight seats.
Mr Cook says, 'We were informed it was an intelligence-led operation that was designed to crack down on minibuses operating illegally. We operate in a semi-rural area where schools are quite spread out, so it would be easy to surmise that minibuses were being used for the purposes of after-school clubs.
'If they had contacted us before they pounced on us at school, then we would have taken action to ensure we were not breaking the law,' says Mr Cook. 'When we first purchased the minibus we contacted the DVLA (Driver and Vehicle Licensing Agency) to ensure we were operating within the law, so it came as a shock to be stopped and told this was no longer the case.'
The drivers were cautioned and charged with being unlicensed and uninsured. The children were put on the coach and driven to the various nurseries - without the number of legally required childcarers. The story was reported in the national press.
Mr Cook could have been fined £5,000 and had six to eight points for driving out of the conditions of his licence (that's to say, not having a PSV licence). However, he says that the case never went to court and a judgement was never made.
'They cautioned me under the Road Traffic Act and said I was uninsured to drive the vehicle. Here in Scotland the case goes to the Procurator Fiscal to decide whether to prosecute or not, and while we wanted to fight it, after six months the case was dropped because it had exceeded the time limit in which a case must go to trial. This effectively meant we could not challenge what we believe is a flawed definition of hire or reward.
'We had checked the licence we needed with the DVLA before we started operating the mini- bus,' adds Mr Cook. 'Because we do not charge extra for transport, we understood it did not count as hire or reward. What qualifies as hire and reward still remains a grey area.'
Mr Cook says that the cost implications for taking out a PSV operators' licence are significant for nurseries.
'Effectively, a nursery has to become a bus-owning company,' he says. 'You have to go through all the legal hoops that owning a bus entails. This includes tests similar to an MOT every few weeks that have to be completed by a trained person, an annual fee of over £200 for the bus operator's licence and then the additional costs for each bus operated. Additionally, each driver will have to complete the PSV driver's course. It is very restrictive.'
The solution for Strawberry Field Nursery has been to remove seats so that the minibus is now an eight-seater. To transport children it is now necessary to use the minibus and other vehicles, including a six-seater car.
'The day after we were pulled over we went to the DVLA and they gave us exactly the same advice as before, reassuring us that we had not broken any laws.'
Mr Cook emphasises that insurance is one of the biggest issues. 'The majority of insurance certificates state that the insurance is valid providing you fulfil the criteria,' he says. 'This usually include: that the vehicle is, first, driven in accordance with your licence and second, that it is not for hire or reward. If your insurance company states that hire or reward includes taking children in a minibus despite there not being a direct payment for the journey, then you are effectively uninsured. This doesn't just affect minibuses - the insurance situation is likely to be the same if you use cars to ferry children also.'
Defining hire and reward
The Department for Transport says the 'Public Service Vehicle Operator Licensing Guide for Operators' provides clear guidance on what is to constitute hire and reward for the purposes of complying with current legislation in respect of PSV Operator Licence requirements.
The VOSA considers an operator who carries passengers where payment has been made directly (such as a fare or other payment made directly in respect of the journey) or indirectly (such as membership subscription to a club, payment for a bed in a hotel, school fees or payment for concert tickets), regardless of whether a profit is made or not, to count as hire and reward, requiring a PSV operator's licence.
Hamish Cook, who is the nursery owner, says 'I have had a considerable amount of correspondence with VOSA, the DVLA, my MP Jim Sheridan and the Department of Transport over the last two years, and it is the VOSA's position that in all cases of minibus transport being supplied by a nursery or out-of-school care club, that a PSV licence is required. They insist that all children who have a fee paid for a nursery or club are deemed to have contributed to any transport, supplied for any reason, and this is therefore defined as hire or reward.'
But according to Hamish Cook, there is worse. 'It also means that every vehicle, including all private cars, must be operated as taxis, and be fully plated and licensed, as transporting nursery children in these vehicles is still considered to be for hire or reward.
'VOSA's jurisdication is only for vehicles with over eight seats,' he says. 'However, because of their definition of hire or reward, it means that cars transporting children to or from school will be classified as taxis. As such, the legislation regarding taxis would be applicable.
'In all of these situations the nursery owner/operator's vehicle insurance will not be valid if the vehicle is not operated as a taxi, or unless they have a PSV for a minibus.'
Mr Cook adds, 'This is a potentially disastrous situation for nurseries. Most are unaware of the current legislation and if they had to operate as a bus owning company, the cost would be prohibitive.'
ACCORDING TO THE VSO
Vehicles with over eight passenger seats used as public service vehicles must normally be operated by an individual or company that has been granted a PSV operator's licence by the Traffic Commissioner for the traffic area in which the vehicle is based.
The powers to impound vehicles will be available where PSVs are used to provide services for hire or reward, but where the operator does not have a valid operator's licence. Other powers are already available to deal with un-roadworthy vehicles.
VSO's responsibilities include:
- Processing applications for licences to operate lorries and buses, and registering bus services;
- Operating and administering testing schemes for all vehicles, including the supervision of the MOT testing scheme;
- Enforcing the law on vehicles to ensure that they comply with legal standards and regulations.