Teachers Driving Minibuses
Update May 2010
Last autumn an item appeared in School Sport Magazine suggesting that teachers could drive minibuses on a car licence without holding category D1 entitlement. It quoted an official of the DCSF and referred to legal advice they have taken, which was claimed to have the standing of a judge's ruling, although this claim was later withdrawn.
At the time, Herts County Council's initial response was to ask schools to wait for further guidance. The matter has been thoroughly investigated but no change of policy has been made; the only safe course is to insist that all minibus drivers hold category D1.
Previous statements on this from DCSF and Dept for Transport (DfT) have not been accepted by Hertfordshire County Council on advice from the council's solicitors. There has not been a test case in court to settle the matter and HCC believes there is a strong risk that an employee could be prosecuted for driving without the proper licence for the vehicle. This could also lead to the employer being prosecuted.
A full Herts County Council position statement on the need for D1 has been endorsed by County Councillor Richard Thake, Executive Member for Education and is published below.
More information about driving and operating Minibuses is available on the Driving Advice page of HertsDirect:
Minibus Driving Licences – The Need for D1 – A Message to Schools
The following position statement has been endorsed by County Councillor Richard Thake, Executive Member for Education.
Definitions
- A Minibus is a vehicle built or adapted to carry 9 to 16 passengers plus the driver, with no standing passengers allowed.
- The driving licence entitlement for minibuses is Category D1.
- Hire or reward is any sort of payment that gives passengers a right to be carried.
Background
Drivers who passed a car test before 1997 were given restricted minibus entitlement for non-commercial use, known as D1 not for hire or reward; this covers people such as teachers driving for schools. These pre-97 licence holders were also given category C1 for medium goods vehicles up to 7.5 tonnes. Schools generally operate minibuses under a Section 19 Permit, which enables them to accept payments from their pupils and to use drivers that have D1 not for hire or reward entitlement. All our drivers must hold an HCC Minibus Driver Permit, issued by the Road Safety Unit following an assessment of their competence.
Since 1 January 1997, passing a car test no longer gives C1 or D1 entitlement. A car licence (category B) is limited to vehicles up to 3.5 tonnes Maximum Authorised Mass with no more than 8 passenger seats. To gain D1 these drivers have to pass the Passenger Carrying Vehicle (PCV) test. All this came about through EU driving licence harmonisation. However, the UK negotiated a derogation for the voluntary sector that enables people to drive a minibus in the UK on a car licence under a list of conditions. The argument is over the high cost of training for the PCV test, and whether this exemption can apply to teachers, but it has never been tested in court.
The conditions for the exemption, as stated in the Motor Vehicle (Driving Licence) Regulations 1999 are:
- they drive on behalf of a non-commercial body for social purposes, but not for hire or reward (unless covered by a Section 19 Permit);
- they are aged over 21;
- they have held a car (Category B) licence for at least 2 years;
- they receive no payment or consideration for doing so, other than out of pocket expenses;
- the minibus maximum weight is not more than 3.5 tonnes excluding any specialist equipment for the carriage of disabled passengers.
Hertfordshire County Council’s Position
Our position is based on legal advice from the council’s solicitors taken in 2000. Their view is that the only reason a teacher is driving a school minibus is because of their paid employment with that school. This includes driving outside of school hours and at weekends, since a teacher’s contract does not state daily hours of working, only an annual number of hours of “directed time”. They are therefore “receiving payment or consideration” since their salary cannot be considered “out of pocket expenses”.
Our former Director of Education Ray Shostak wrote to the DfES about the matter in 2001 and the reply from the then Minister for Schools, Stephen Twigg concurred with our solicitor's view that teachers needed to hold category D1 entitlement on their licence, they are not eligible for the exemptions that apply to the voluntary sector, and he could not see a case for exempting them. HCC’s view is shared by a number of other local authorities.
Costs
Training for the PCV test is expensive and typically is provided by companies that train bus and lorry drivers. They charge around £150-£200 per day and the normal course is 5 days including the practical test on the final day. Apart from the expertise of the instructor, the Minimum Test Vehicle Requirements have made it more costly for training companies to provide a suitable vehicle. Few school minibuses would meet the requirements.
The fees for the necessary medical, the theory and practical tests add up to at least £250. Of course some candidates fail the test and have to re-take at a further cost. So it can cost at least £1000 to get each candidate through the test to get D1. There is also the cost of supply cover if the teacher is out of school during term time.
The HCC Road Safety Unit looked into employing an instructor with a view to offering a lower cost service to schools, but was unable to attract applicants with the necessary qualification.
Statements by DCSF and DfT
Part of the current problem lies in a change to the view expressed by the former DfES (now DCSF), possibly in response to complaints about the cost of the training, rather than the principle of what licence needs to be held.
Statements issued in 2006 by the DCSF and DfT suggest that if a teacher’s contract of employment does not specifically refer to driving as part of their duties, the exemption from D1 can apply. They took fresh legal advice although this was never published. The Driving Licence Regulations have not changed, only their interpretation of them. When this was put to our solicitors, their response was that the statement had many inconsistencies, the risk remains that an employee could be prosecuted for driving without a valid licence, and HCC could then be prosecuted for causing or permitting someone to drive unlicensed.
There are 3 key problems with the DCSF/DfT statements:
Firstly, a teacher’s contract may not detail every activity and duty they carry out, but they still do them for their paid employment and they are subject to employer discipline for any negligence or misconduct whilst doing so. We therefore believe they receive payment or consideration for this work, something that is not allowed if they wish to drive under the D1 exemption. They might not be paid extra for driving, but they are not paid less if they do not.
Secondly, the exemption stipulates that the journey must be for social purposes and the DCSF/DfT statements suggest that this would encompass “most types of driving which school employees could be asked to undertake”. This is difficult to accept: if a teacher took some pupils as passengers in their private car, they would need business use insurance cover and it would not be covered by a social, domestic and pleasure policy.
Thirdly, the exemption only applies for minibuses up to a maximum of 3.5 tonnes fully loaded. Many newer minibuses are over this weight limit; e.g. there is an LDV at 3.8 tonnes and a Ford Transit at 4.1 tonnes. The DCSF and DfT statements recognise this and warn that the weight limit will not be changed, so schools should consider PCV training in any case. This contradictory approach opens the way to confusion. If a teacher relied upon the exemption and drove a minibus weighing less than 3.5 tonnes, the school might then replace it with a new heavier vehicle and the teacher could end up driving illegally if this was not picked up.
A final point
The DfT and DCSF statements recognise that holding PCV-D1 entitlement “remains the good practise option for schools”. HCC would wish to follow good practise and avoid risk; it is clear that until this issue has been resolved by a test case in court, the only way to ensure that we are operating our minibuses legally is to require D1 on the licences of all employees.
A member of the Association of Industrial Road Safety Officers, who is a consultant on driving licence matters, supports our position and believes that a court would be highly likely to find that a driver should hold D1 in these circumstances.
Naturally, we would not wish an employee of HCC to be the test case, with all the negative publicity associated with this. Most important of all is to fulfil our Duty of Care to the pupils and indeed our staff.
Despite explaining all of this on many occasions, we continue to be challenged by schools. We feel there is a need to issue this statement to schools confirming the council’s position and asking that schools accept the situation. We therefore ask for your understanding of our position as outlined above. The full HCC Minibus Driver Policy can be found in the Minibuses section of our Driving Advice web site;
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