Operating School Minibuses under Section 19
Date: 6th July 2018
This article discusses the implications and legal framework for schools operating minibuses under the Section 19 Permit or relying on a Section 19 permit in employing a 3rd party to provide transport services. It should be read in conjunction with the current government guide for schools operating minibuses. The government is currently reviewing these arrangements (see section 3, below).
The current guidance is vague and open to interpretation in many areas – something which the government admits and yet are clear that the only way these will be clarified are through points of law debated in court. This guide is intended to provide some clarity for schools and teachers interested in or currently using these permits but is not a legal document, independent legal advice should be sought for definitive clarification.
Section Guide:
Click the links below to jump to the relevant section
1. What is a Section 19 Permit?
Introduction to the regulation and the issues it presents.
2. D1, D1 (101) and B Licence Holders
The types of driving licence that may be used to operate vehicles under a Section 19, and their restrictions. Available safety training options to promote safety for drivers & passengers.
3. Proposed Amendments to the Legislation
How the latest government proposals will affect schools operating their own minibuses and Community Transport providers
4. The Law in Practice, Investigations and Fines
A round-up of investigations by the transport authority and fines and bans that have been handed out to those found in breach of the regulations
5. Conflict: “Not-for-profit” vs “Non-Commercial”
A discussion on the conflation of two terms in the legislation that have led to much confusion
6. Recommendations
1. What is a Section 19 Permit?
A Section 19 permit provides an exemption for not-for-profit organisations to operate minibuses for “hire and reward” without an Operator PSV (O) Licence. Section 19 is a UK government initiative designed to provide exemptions to charitable organisations from an EU legislation, this is important to note as you will not be able to rely on a Section 19 when, for example, taking a school trip to France or other parts of the EU.
Section 19 allows schools to operate their own minibuses and deploy teachers or other direct employees as drivers without the need for a full D1 Licence and CPC. See section 2, below.
Schools operating under the provisions of the Section 19 permit scheme must maintain maintenance and inspection records as they would if they held an O licence (daily, weekly, 10-weekly, deficiency log, etc), failure to do so may invalidate the licence.
The issues with the current permit guidance stem from the vague nature of the advice given and the insistence that clarification will not be given by the Department for Transport and will only come from potentially costly legal challenges, this has allowed for many interpretations by both those using the permits and the departments governing their legal usage.
2. D1, D1 (101) and B Licence holders
Either D1, D1 (101) or B licences are relied upon by drivers of school minibuses, they range from the most regulated and least restricted D1 Licence to the least regulated and most restricted B Licence.
Licence type and limitations:
| Licence Type | Associated Regulations and Tests | Limitations |
|---|---|---|
| D1 | CPC | None |
| D1 (101) | (Safety tests in relation to a section 19) | Only available to drivers who passed their test prior to 1997. Cannot be used for “hire & reward” unless in combination with a Section 19. |
| B | (Safety tests in relation to a section 19) | Must: Have held licence for 2+ years Be 21 years of age or older Drive for a non-commercial body for social purposes Vehicle weight must not exceed 3.5 tonnes Cannot be used for “hire & reward” unless in combination with a Section 19. |
It is the accepted view that drivers operating under a Section 19 do not require a CPC, however, the wording in the legislation is confusing and appears to rely on the equivalence of “not-for-profit” and “non-commercial”, see section 5. Below.
Full D1 holders are subject to ongoing reviews and checks by virtue of being bound by the CPC requirements whereas D1 (101) and B holders are not. To ensure the safety of passengers we highly recommend schools to promote the MiDAS (the Minibus Driver Awareness Scheme) for teachers taking on this responsibility. They will be issued with a certificate on completion and will be much better equipped to tackle the challenges presented by the driving of a large vehicle with vulnerable passengers.
MiDAS training is beneficial to teacher-drivers as well as to the school and students in general and can be a very useful qualification to include in job applications.
3. Proposed amendments to the legislation
The proposed amendments to the regulations are designed to affect only those organisations that provide transport as a main occupation and are actively in competition with PSV licence holders, it is made clear that the changes will not affect “organisations who use permits to operate transport that is a 'sideline' or incidental to their main occupations.”
Schools operating their own minibuses should still be able to rely on their existing Section 19 permits if and when the proposed amendments are brought into force. However, those employing a Community Transport provider, for example, will likely have to insist that the provider holds a full PSV licence and is therefore regulated and held to the same standards as commercial PSV holders with whom they are in competition or seek an alternative licenced provider.
An excerpt from the government review states:
2.18 In the past, the Department and the DVSA took the view that all holders of section 19 and 22 permits were exempt from the Regulation because they would be either "engaged in road passenger transport services exclusively for non-commercial purposes" or "…have a main occupation other than that of road passenger transport operator". For this purpose, it was believed that the term "non-commercial" equated to "not-for-profit"; and it was not anticipated that permit-holders would compete with PSV licence-holders.
2.19 However, following a legal challenge, it has become apparent to the Department and the DVSA that these assumptions are no longer sustainable. As a general rule, if a transport service is provided by an organisation in return for payment, that service should be treated as commercial, even where the organisation is not-for profit.
4. The Law in Practice, Fines and Investigations
At the time of this report, no school has been prosecuted for running minibuses under a Section 19 with vehicles driven by teachers within the UK and as previously stated, as long as they conduct and record their vehicle and maintenance checks, they are not at risk from the proposed amendments. The situation is different outside the UK and schools have had vehicles impounded due to teachers not meeting local legislative requirements in the rest of Europe.
There have, however, been fines or bans handed out to Community Transport providers relying on a Section 19 Permit to provide services for school contracts. Including this fine in Wales and a ban in England.
It is expected that should the amendments set out in section 3, above, be implemented that these legal challenges and fines may increase.
5. Conflict: “Not-for-Profit” vs “Non-commercial”
Section 19 is designed to protect charities and other similar organisations acting for the community and as such cannot be argued to be valid for a profit-making organisation. This includes any situation where a school or group of schools might form a company for provision of transport (see the ban linked to in section 4, below). The two terms “not-for profit” and “non-commercial” have previously been treated as synonyms but there is a growing consensus that this should not be the case, as the government discussion in section 3 suggests.
If and when the amendments are brought in, a likely incidental effect is that the exemption for school employed drivers from having to hold a CPC will no longer be valid. This is because it relies on the same conflation of “not-for-profit” and “non-commercial” as outlined in section 3, above. It remains to be seen whether the exemption from holding an O-Licence granted by the Section 19 permit to the school/organisation would transfer exemption from the CPC to the drivers in question.
6. Recommendations
It is highly recommended that schools employ full D1 holders as drivers due to the training and ongoing checks they undergo. Where this is considered impractical or costs are prohibitive we recommend you organise MiDAS training for your drivers to show commitment to safety and improving standards.
If you have concerns about your current service on compliance, safety measures, value for money or checks and record-keeping, contact us on [email protected] and we will send out an independent consultant to conduct a transport health-check and provide you with the results directly.
