The phrase “ticking timebomb” has been used to describe a number of licensing issues since the heady days of transition. Unfortunately, the 2005 Act contains another one of these deadlines which is now looming very considerably on the horizon, and that relates to the so-called “refresher training” for personal licence holders.
Anyone who wishes to hold a personal licence must first sit an approved training course such as the SCPLH course offered by the BII. Personal licences must then be renewed every 10 years. But the 2005 Act has another requirement that the training be “refreshed” every 5 years. There are a number of issues with this: (a) what is the refresher training; (b) when must it be done by; and (c) what happens it if is not done in time?
What is “refresher training”?
Section 87 of the 2005 Act says that a holder of a personal licence must, no later than 3 months after the expiry of each 5 year anniversary of the date on which their personal licence was issued, produce evidence that they have complied with “such requirements as to the training of personal licence holders as may be prescribed”. This is a little wooly to say the least! There is no mention of the word “refresher” here but that is the phrase which has come to be adopted to describe this.
What this little provision ultimately means is that a training course will have to be passed prior to the 5 years anniversary, and the certificate produced to the licensing board no later than 3 months after that, in order to keep the personal licence alive. The question is what format the 5 yearly course should take. At the time of writing, there is no definitive answer. The Scottish Government has not yet prescribed the format.
However, a Working Group has been set up to agree on the format and that process is ongoing even now. I am a member of that Working Group so I can tell you steps are being taken to try and get the format of the so-called “refresher course” sorted. The Government have asked People1st Solutions to oversee this. At this time, they are undertaking a survey of all stakeholders to input on the format of the refresher course. That survey is live; and closes in just a few days on 17 August 2012. I urge everyone in the licensed trade to take part in this. This will survey will influence you and your staff’s training requirements for years to come. You can do the survey online here – please take a few minutes to complete this. It is imperative that this process have input from the industry and not just the health lobby and alcohol harm charities.
When must the “Refresher” training be completed?
This is another vexed question. The Act requires the personal licence holder to have evidenced to the licensing board that issued his licence that he has taken the training within 3 months of the 5 year anniversary of the date of issue of his personal licence. This means not simply having sat the training before the 5 year anniversary, but (it is expected) be in possession of the actual certificate to produce to the board. Those who recall delays in course providers issuing certificates may have begun to fret already. So it is not good enough to have simply sat the course: you need to have sat it, passed it, (before the 5 year anniversary) and be holding your certificate to produce to board not later than 3 months later.
So now we need to have agreed on the format of a course in enough time that the accredited providers can design their own versions of it; and them roll them out. We then need all the personal licence holders in Scotland to try and get booked on these courses and get their certificates on time. We are talking about tens of thousands of people. Course providers may struggle to meet the demand of this Gaderene rush and I worry that people will fall through the gaps.
The big question is, what is the cut off date? Given that the Act refers to the date of issue, this is not straightforward. Many personal licence holders can look at their licence and will see the date 1 September 2009; but that is not the date the licence was issued – it is the date it came into effect. They are not the same thing. Let’s use an example – me.
I hold a personal licence. I happen to have kept the original covering letter from when the licence was issued which was 12 March 2009; not 1 September 2009. So my 5 five anniversary “issue date” should be 12 March 2014. This means I need to sit the course and give the Board a copy of my new certificate within 3 months of that, so no later than 12 June 2014. The date 1 September 2009 is irrelevant.
The earliest a personal licence could have been lodged was 1 February 2008. Some Boards may therefore have granted and issued personal licences as early as, say, April 2008. Those personal licence holders would therefore have a 5 year anniversary on April 2013 meaning their refresher certificate needs to be with the licensing Board by July 2013. To put it short, the new course, in whatever format it turns out to be, has to be available by early Spring next year for those earliest on the list.
What happens if the training is not done?
The first point to note is that licensing boards have an obligation to send reminders to personal licence holders about this training requirement. These reminders must be sent 3 months prior to the 5 year anniversary date. However, non-receipt of this reminder does not excuse the personal licence from doing the training on time. Of course, personal licence holders reading this will all know that they have a legal duty to update the licensing board with any change to their personal details such as a home address. They will be aware of this because failure to do so within 1 month of the event is a criminal offence.
A bigger issue is that some licensing boards may not actually know the date on which the personal licence was actually issued – with everyone so caught up with the date of effect (i.e. 1 September 2009). How can they issue a reminder if they don’t have a record of the issue date? If you are a personal licence holder, check your paperwork. You may have kept the original covering letter like me. Your date of issue will be the date on that letter; not 1 September 2009.
The bad news is that the Act does not give licensing boards any wriggle room on this at all. Section 87 simply says that if the requirements are not met, the Board MUST revoke the personal licence.
That is the ticking timebomb. With so many tens of thousands of personal licence holders all rushing for training, with many not knowing their “date of issue”, concerns are growing that we may reach a point that through no fault of their own personal licences holders may find that their licence has been revoked. That will have huge ramifications for them and their business.
A solution to the clash between date of issue and date of effect is to amend s.87 to refer to the 5 year anniversary based on the date of effect, not the date of issue. This means everyone granted a personal licence before 1 September 2009 will automatically know their relevant date is 1 September 2009; and for anyone who was granted a personal licence after 1 September 2009 it will be the date it was granted. This would mean a very significant number of personal licence holders would have until 1 December 2014 to produce their refresher training certificate. It is doubtful, however, whether a busy Holyrood will have time to mop this up.
In the meantime, it is vital that the trade input to the survey above so that the refresher training spec can be finalised as early as possible.