OPINION – continued from page 12
driver – it might be a written contract, or it might be less formal. But either way, the Government considers that any such connection will normally be sufficient to require the hire company to hold a PSV operator’s licence. The courts have reached a similar conclusion. VOSA will take decisive enforcement action where ‘dry hiring’ is being used as a ploy to try to avoid the regulatory system.
12. When dealing with dry hiring it is important to ask the correct ques- tions, for example: • What is the relationship between the hire company and the organisation or individual selecting the driver?
• Is there a premium or deposit to be paid for choosing one’s own driver, or for driving it oneself? There will be a need for the authority of a PCV licence to drive these vehicles and any rental of the vehicle should reflect the insurance cost. If there are attempts to tie in a premium for self drive then this will be an important indicator that it is not a genuine self drive hire arrange- ment.
• Is there is a premium or deposit to be paid for choosing one’s own driver, if so what is the sum? The higher the figure the less likely it will be a genuine dry hire.
• If a system of premiums or deposits is required, on how many occasions is this taken up? Additionally, what is the proportion of occasions when this is taken up? Note that the lower the number of occasions where any premium or deposit is taken up, the less the likelihood of this being a genuine dry hiring arrangement.
• Are there any other restrictions on the driver? E.g. age restric- tions or limiting the driving to those with previous experience of driving limousines (as opposed to those who have passed the relevant PCV test). Additional restrictions are often an indication that it is not a genuine dry hire arrangement.
Do routes and timetables of a limousine service need to be registered with the traffic commissioners?
13. Not normally, no. Most limousine services will be exempt for one of the following reasons: • because they are “excursions or tours ” which do not run at least once a week for a period of at least six consecutive weeks; or
• in the case of smaller limousines, because they operate as PHVs (not PSVs);
Is the 15-mile rule relevant to my limousine operation?
14. Not usually, no. The 15-mile rule is relevant only when deciding whether a service is a local service, and therefore whether details of that service need to be registered with the traffic commissioners. But a limousine service will generally be exempt from the requirement to be registered with the traffic commissioners, for one or more of the reasons outlined in the previous question.
I am operating an excursion or tour using a small vehicle. Doesn’t that automatically make it a PSV?
15. No. A vehicle used to operate an “excursion or tour” qualifies as a PSV only if one of the two conditions described in the first question is met.
16. The question of “excursions or tours” is relevant only when a serv- ice is being operated as a PSV (not a PHV) and the operator is deciding whether details of the service need to be registered with the traffic commissioners. Routes and timetables of “excursions or tours” do not need to be registered unless they operate at least once a week for a period of at least 6 consecutive weeks.
The DfT has issued new guidance to local authorities on the licensing of stretched limousines and novelty vehicles, what does it say?
17. The extracts below are from the DfT’s Taxi and Private Hire Licens- ing: Best Practice Guidance, issued March 2010. In the DfT circular issued they are numbered 40-44.
40. Local licensing authorities are sometimes asked to license stretched limousines as PHVs. It is suggested that local authori- ties should approach such requests on the basis that these vehicles – where they have fewer than nine passenger seats - have a legitimate role to play in the private hire trade, meeting a public demand. Indeed, the Department’s view is that it is not a legitimate course of action for licensing authorities to adopt poli- cies that exclude limousines as a matter of principle and that any authorities which do adopt such practices are leaving themselves
PAGE 13
open to legal challenge. A policy of excluding limousines creates an unacceptable risk to the travelling public, as it would inevitably lead to higher levels of unlawful operation. Public safe- ty considerations are best supported by policies that allow respectable, safe operators to obtain licences on the same basis as other private hire vehicle operators. The Department has now issued guidance on the licensing arrangements for stretched lim- ousines. This can be accessed on the Department's web-site at
http://www.dft.gov.uk/pgr/regional/taxis/stretchlimousines.pdf.
41. The limousine guidance makes it clear that most operations are likely to fall within the PHV licensing category and not into the small bus category. VOSA will be advising limousine owners that if they intend to provide a private hire service then they should go to the local authority for PHV licences.
The Department would expect licensing authorities to assess applications on their merits; and, as necessary, to be proactive in ascertaining whether any limousine operators might already be providing an unlicensed service within their district.
42. Imported stretched limousines were historically checked for compliance with regulations under the Single Vehicle Approval (SVA) inspection regime before they were registered. This is now the Individual Vehicle Approval (IVA) scheme. The IVA test veri- fies that the converted vehicle is built to certain safety and environmental standards. A licensing authority might wish to confirm that an imported vehicle was indeed tested by VOSA for IVA before being registered and licensed (taxed) by DVLA.
This can be done either by checking the V5C (Registration Cer- tificate) of the vehicle, which may refer to IVA under the "Special Note" section; or by writing to VOSA, Ellipse, Padley Road, Swansea, SA1 8AN, including details of the vehicle's make and model, registration number and VIN number.
43. Stretched limousines which clearly have more than 8 passenger seats should not of course be licensed as PHVs because they are outside the licensing regime for PHVs. However, under some cir- cumstances the SVA regime accepted vehicles with space for more than 8 passengers, particularly where the precise number of passenger seats was hard to determine.
In these circumstances, if the vehicle had obtained an SVA cer- tificate, the authority should consider the case on its merits in deciding whether to license the vehicle under the strict condition that the vehicle will not be used to carry more than 8 passengers, bearing in mind that refusal may encourage illegal private hire operation.
44. Many councils are concerned that the size of limousines pre- vents them being tested in conventional MoT garages. If there is not a suitable MoT testing station in the area then it would be possible to test the vehicle at the local VOSA test stations. The local enforcement office may be able to advise (contact details on
http://www.vosa.gov.uk).
Existing holders of restricted PSV licences
18. I appreciate that you might feel that some existing holders of restrict- ed PSV licences do not fall into the category of PSV if one applies the criteria set out at paragraph 8 above. I also appreciate that this may cause uncertainty amongst existing licence holders. The view of traffic commissioners is that a degree of leeway ought to be given for those who have acted in good faith but have the incorrect licence. In the fullness of time those who have applied for and obtained PSV licences in good faith, but are not genuine PSV operations, ought to apply to their local authority for a PHL.
I will be writing in due course to current holders of restricted PSV licences to set out more detail the expectations of traffic commis- sioners in this regard.
Ultimately each case must always be dealt with on its merits and the operator will know whether using the tests described at paragraph 8 above, they genuinely fall within the category of a PSV operation.
Yours sincerely NICK JONES
Comisiynydd Traffig dros Ardal Drafnidiaeth Cymru Traffic Commissioner for the Welsh Traffic Area Traffic Commissioner for the West Midland Traffic Area
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An excursion or tour is defined in the Transport Act 1985 as a service for the carriage of passengers by road at separate fares on which the pas- sengers travel together on a journey, with or without breaks, from one or more places to one or more places and back.
PHTM AUGUST 2009
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