Driver CPC: ch-ch-changes

Some Driver CPC regulations changes come into force from 22 July 2020. These include new or amended exclusions introduced by the Vehicle Drivers (Certificate of Professional Competence) (Amendment) Regulations 2020. (Driver CPC is the qualification and periodic training requirement for commercial drivers who must complete 35 hours’ training every five years.)

We highlight two main areas of change and look at the concept of ‘principal activity’.

‘Rural sector’ driving

A driver of a vehicle will now become exempt from Driver CPC on condition that:

• it is used by an agricultural, horticultural, forestry, farming or fishery undertaking
• it is used only for carrying goods in the course of that undertaking of business
• it is driven by a person whose principal activity in the course of their work is not driving relevant vehicles ( i.e. he or she is not a professional driver).

What is meant by ‘principal activity’?

Whether or not a driver requires a Driver CPC qualification already depends on some circumstances on whether or not it is their “principal activity”.

For example, drivers of a vehicle ‘which is carrying material or equipment to be used by that person in the course of his work, provided that driving that vehicle is not his principal activity’ do not need Driver CPC already. This exemption means that, say, scaffolders who drive their lorry laden or loaded with scaffolding to their site does not need Driver CPC – but a commercial driver whose primary role is to drive a lorry delivering scaffolding needs a Driver CPC qualification.

But when does driving become his or her principal activity?

This question has been problematical since Driver CPC was originally introduced. It is important for businesses who may wish to avoid the need to engage Driver CPC-qualified drivers. Such businesses may need to engage or employ drivers for only a limited amount of driving work without the burden of ongoing qualification and training.

The preamble to the EU Directive that has prompted these new changes now states this:

“Some of these exemptions relate to situations where driving is not the principal activity of the driver and where it would impose a disproportionate burden on drivers to require them to comply with the requirements… Generally, driving is deemed not to be the drivers’ principal activity where it occupies less than 30% of the rolling monthly working time.”

The 2020 Regulations now introduced are silent on this “30% rule” though its intent is clear.

So, what does this mean in practical terms and how this may be implemented? One can say this:

• if no exemption at all applies to a driving activity then a driver must have Driver CPC
• if an exemption might apply (and the principal activity rule might apply) one needs then to examine if the principal activity of the driver is driving (as defined by the 30% rule above) and calculate this somehow
• the Directive refers to ‘generally’ i.e. there appears to be some scope for interpretation on a case-by-case basis (not great for legal certainty)
• DVSA Guidance needs to be issued, and seemingly will be, to give clarity.

Another problem arises: how in practical terms can one manage the 30% rule? It is not enshrined in statute. How can it be enforced? In practical terms, this is messy and complex, compromising simple enforcement by DSVA or any other agency.

If there is a rolling monthly averaging exercise to be demonstrated how is this to be recorded and proved? If a driver is asked to conduct more driving work might they have to decline if it might tip them over the 30% driving limit?! What latitude might there given the 30% applies ‘generally’?

This becomes more complex with seasonal work – a driver may not require Driver CPC for a very large part of the year but need it for only a small part. This may be the point: if a driver is, in reality, a commercial driver for even a part of the year the intention is that they should have Driver CPC.

In short, problems remain. Simple law makes for easier enforcement.

‘Non-Commercial’ vehicle use re-visited

Another exemption to Driver CPC was for drivers of a vehicle “which is being used for the non-commercial carriage of passengers or goods for personal use.”

This is now replaced with an exception for drivers of vehicles “used for non-commercial carriage of passengers or goods”. (The ‘for personal use’ part is removed.)

So the question is now, simply, what is meant by “non-commercial”?

The Government has sought to clarify this and the guidance to be applied will be that also applied in drivers’ hours guidance for passenger vehicles but which it feels should equally apply to goods vehicles, where, either:

• the driver makes the journey for their own purposes, e.g. in connection with a hobby and not to earn income. If there is a financial contribution towards that hobby, such as sponsorship, then the contribution does not exceed the total cost of the hobby
• no payment is made, either to the operator or the driver for carriage, per see
• any financial contributions made does not exceed the running cost of the vehicle for that journey, e.g. contributions towards the fuel costs.

This would appear to potentially assist businesses, organisations and drivers of vehicles in areas such as school or works transport in limited circumstances. This will need to be looked at on a case-by-case basis.

There are various other clarifying and minor amendments to the regulations. We will provide an updated listed of exemptions in due course.

The changes take effect on 22 July 2020.

We Can Help You

We will continue to update you about developments as they arise.

Please contact Tim Ridyard on 07484 924834 or email tim.ridyard@ashtonslegal.co.uk for individual advice for your business.

Alternatively, if you or your business require advice or need assistance for any road transport matters, please get in touch with our specialist Road Transport team through this website or by calling 0330 404 0778.