DANSA paper trail
Documents which have been obtained from the police and Welsh Office I believe reveal the extent to which government wanted to prevent any legal test of the Section 19 permit rules.
Thanks to the tenacity of a B&CB correspondent, I now have more of a paper trail which, eventually, led up to the Traffic Commissioner for Wales, Nick Jones, revoking all of the permits held by community transport operator DANSA last year. This was on the eve of his retirement, and I cannot help but read into his judgement his frustration at the way DfT has obfuscated since the now infamous guidance letter from Stephen Fidler, in July 2017.
What becomes blindingly obvious from the correspondence released under Freedom of Information requests is that the South Wales Police, in issuing Fixed Penalty Notices to two school minibuses operated under S19 had sought legal advice and had performed their duty without fault. However, DANSA contested the FPNs and, eventually, no lesser person than the Parliamentary Under-Secretary of State for Justice, Lucy Frazer QC, quashed the £600 in fines as ‘financially burdensome’ for DANSA and without ‘merit,’ even apologising to DANSA for ‘distress’ caused.
In fact, the situation had been entirely predictable. A letter from the investigating officer reveals that when the contract had been won [to start in September 2017, and undercutting bids from O licence holders, we have since learned], Neath Port Talbot Council had been sent copies of S19 permits, but had then demanded a copy of DANSA’s O licence, and were sent it. Perversely, as Nick Jones pointed out in his decision, DANSA had both S19 permits and an O licence, which is forbidden as no business entity can be both commercial and non-commercial.
The police then checked at the school gate in November 2017, to find the contract operated with an eight-seater carrying a S19 permit – which DANSA assured the officer was because the regular (presumably O licensed) vehicle ‘had a puncture.’ The officer told DANSA that under no circumstances were DANSA to use S19 permits on the contract, not least because it had been a condition of tender.
In March 2018, the police returned to check again and found two vehicles carrying S19 permits, the drivers paid £8.50 an hour, and were told that this had been a situation for some time. Understandably, the police then issued the FPNs to DANSA. Meetings which ensued involved not only the local MP, Christina Rees, but the Community Transport Association before, eventually, the case went to Nick Jones.
In Nick Jones’ deliberations, he drew attention to the withdrawal of the fines by the MoJ saying that, had these been paid or appealed in court, the legality of running tendered, contested contracts with S19 permits – and, let’s be clear, by an operator with paid drivers, council grants and even a council-owned vehicle – might have been tested.
Did the MoJ step in, giving the appearance of supporting Christine Rees MP and a ‘charitable’ transport service, to prevent the law being tested in court?
It wasn’t, and I do not believe this was because of the MoJ’s claim that the fines were without merit. After all, in the eyes of those operators who bid with O licences against a council-supported operator , the fine was entirely meritorious; they had failed to win contracts which were subsequently run with S19 permits. Likewise the police officer, who had diligently carried out his duty, felt the fines deserved.
Did the MoJ step in, giving the appearance of supporting Christine Rees MP and a ‘charitable’ transport service, to prevent the law being tested in court? With the DfT still obfuscating over S19, that’s how it looks to me. But it was an opportunity for the Traffic Commissioner to show his independence, and he duly did. His decision does him great credit.
Every day since has been like Groundhog Day. DfT is still tinkering with guidance in an attempt to lessen the impact of a situation entirely of its own making on community transport operators. Let’s be clear; most CTOs offer a vital, safe service to communities using volunteer staff, and deserve our goodwill. The spectre of CTOs hiring vehicles to the general public has receded. The issue is now tendered contracts, as Nick Jones’ valedictory decision identified.
It simply cannot be acceptable for contracts, which must by law be opened to bidding from well-regulated, commercial operators, to also be available to top up the finances of operators who often have grants, whose vehicles are sometimes paid for from the public purse and whose £11 permit can be bought without real scrutiny from many organisations, including the council issuing the contract.