CPA Bulletin

40 CPA Bulletin > May 2022 www.cpa.uk.net Q&As: 1 q&a s The current wording within Section 8.12 (mobile cranes) of Excise Notice 75 was correct up until 31st March - as legislation then dictated. HMRC have now updated Excise Notice 75, and a copy can be found at www.gov.uk/guidance/using-rebated-fuels-in-vehicle-and-machines-excise- notice-75-from-1-april-2022 Mobile cranes that are being used for construction purposes will have to run on white diesel (or equivalent, e.g. HVO) from 1st April 2022 onwards. It has been noted that ‘Fuels for Use in Vehicles’ fromHMRC’s Excise Notice 75 states in section 8.12 that amobile crane can use red diesel. It ismy understanding that this legislation is being updated from1st April 2022, i.e. that white diesel will be the required fuel for construction purposes. Could you please confirm that HMRC’s Excise Notice 75 is applicable until 31st March 2022 only? Please could you help with a query with regards to operators we supply to customers with our Hired Plant. Who is responsible for the operator on site, if the operator is self-employed, or if we have employed them temporarily to operate our machine? The status of the operator - self-employed or temporarily employed - is immaterial when supplying themwith a machine under the Model Conditions. Under clause 8 of the Model Conditions, when an operator is supplied, you are responsible for providing a competent operator. Their employment status is not dictated under the terms and conditions, but the operator is deemed to be the customer’s servant for the duration of the hire period, and so will be under their direction and control. One of our customers hired a generator from us, and with our permission, rehired it on to one of their customers. The generator was subsequently stolen from their premises. I have informed our customer that the generator remains on hire until the insurance claim has been settled. The customer has referred to the Model Conditions and stated that clause 25 applies. My view is that under this clause, the generator is not ‘idling,’ but has been stolen, and so I cannot prove that it isn’t being used elsewhere? If the generator was hired out to a business customer under the Model Conditions, then within clause 13(b), it states that if the item is lost or damaged during the hire period, then the ‘Idle-time’ rate (as outlined in clause 25) will take effect. The rate charged will be two-thirds of the hire rate. This rate continues until settlement is agreed between the parties. The customer has 3 weeks to pay that settled sum, if not, then the two-thirds rate resumes fromwhen it had stopped. The reason the two-thirds rate was introduced was to fairly reflect the average utilisation of an item of plant. I appreciate that there is nothing to show that the generator had not been stolen, but instead could be used elsewhere. This would mean the customer is effectively saving one-third of the hire rate; however, if this was discovered, then this could be viewed as an attempted fraud. If you have any further questions, then please get in touch. We cross-hired in a machine from another CPA member, and then hired it on to one of our customers under the Model Conditions. The machine was supplied on a self-drive basis, with the hire beginning in summer 2021. Several weeks later, the machine malfunctioned and damaged a building. Our customer went to the owner - who we hired it from - asking for redress. The owner explained that under the terms and conditions, they were not liable for the incident. The customer is now looking to recover the damage costs from us. Where do we stand? There is a clear contract between the end-user (your customer) and you. So, if there was a problem during the hire period, your customer should report the matter to you, not the actual owner. As the machine was supplied on a self-drive basis, and the fact that it had been on site for quite some time before the incident occurred, then the machine will be considered to be in good order, with the customer obligated to keep themselves acquainted with the ‘state and condition’ of it. Should any problems arise, then they should stop using it immediately, and report the matter to you. As the incident occurred during the hire period, then under clause 13(b) of the Model Conditions, the customer is liable not only for any damage to the machine itself, but also for any damage to any third party’s person or property. You are not liable for the customer’s costs that they may have incurred. Whilst every care has been taken to ensure the accuracy of the answers given within this section of the CPA Bulletin, no liability for any damage, liability, cost, loss and/or expense which the reader has incurred can be accepted by the Construction Plant-hire Association (CPA). The reader should obtain independent legal advice on any issue reported within the CPA Bulletin, before proceeding with a course of action.