Decision

Decision for Yellow Travel Wrexham Limited (PG2044929)

Published 29 August 2023

0.1 In the Welsh Traffic Area

1. Written Decision of the Traffic Commissioner

1.1 Yellow Travel Wrexham Limited (PG2044929)

2. Background

The operator, Yellow Travel Wrexham Ltd, holds a standard national operator’s licence (PG2044929) authorising one vehicle. The licence was granted on 8 July 2021. The sole director of Yellow Travel Wrexham Ltd is Christopher Jackson and the transport manager is Darron Burns.

The Driver and Vehicles Standard Agency (“DVSA”) conducted an investigation into the operator’s systems for complying with maintenance obligations. Vehicle Examiner (“VE”) Mark Williams attended the operator’s operating centre in November 2022. His report found serious compliance failings including the following:

• On the date of the visit the vehicle examiner witnessed vehicle GD07ZPL returning to the operating centre. During a partial inspection of this vehicle the following safety critical defect was identified that the battery was insecure, and that displacement constituted a fire risk.
• The vehicle also had the following safety critical issues:-

The seat belt buckle, third from the rear of the vehicle was inoperative and not capable of performing its intended purpose, 3rd from rear. The nearside seat belt retractor was also inoperative and not capable of performing its purpose.

The rear emergency door was obstructed by an unauthorised seat arrangement, preventing it’s use

The nearside front axle shock absorber lower mounting bolt was broken, with the shock absorber hanging down.

The steering rack gaiter was split and damaged, both offside and nearside

Obligatory rear position lamp inoperative offside.

Stop lamp inoperative, offside rear.

Interior vanity screen insecure.

Obligatory markings missing, method of operation of rear emergency door.

Obligatory markings missing, rear emergency door not marked on the exterior.

Fire Extinguisher not fitted.

Seats insecure, rear bolt missing from all seats, one of two in rear mounting.

• A partial inspection was also carried out on BX10DDN. An immediate prohibition was issued due to a bulge detected in the tread area caused by failure of the tyres structure. The tyre was replaced on site by Lodge Tyres and a prohibition clearance for this vehicle was issued on the day.

• The vehicle also had the following safety critical issues:-

Records not fully completed with the roadworthiness declaration not signed off.

Of the records available to check, the frequency of the inspection intervals had been exceeded.

• Evidence of vehicle AV02KYJ not being in use, however there was no VOR notice in the vehicle file.
• There was documentary evidence that walkaround checks were being carried out, however the faults found on the two vehicles inspected at the fleet check suggests that these checks were ineffective.
• Maintenance arrangements/facilities were found to be wholly inadequate.
• Evidence of a poor MOT test history, with vehicles undergoing the incorrect type of MOT.
• The company were not in possession of an appropriate wheel nut torque wrench. They were not using wheel nut pointers or any other means of additional wheel security. It was noted that vehicle BX10DDN was fitted with wheel embellishers which would prevent wheel nut security observation at the time of a drivers walk around check. No specific tyre management systems were in place with no evidence that tyre ages were recorded, or tyre pressures being checked.
• The nominated Transport Manager had undertaken the incorrect type of CPC refresher training in the form of for HGV’s rather than PSV’s.

3. Public Inquiry

In light of the information received from DVSA, the operator was called to a Public Inquiry and the nominated Transport Manager, Darron Burns, was also called in his capacity as Transport Manager.

The call up letters dated 9 February 2023 were sent by recorded delivery to the operator’s correspondence address and by email to the operator’s email address and to Mr Burns’ address and email. The call up letters advised the company and the Transport Manager that a Public Inquiry would be held on 14 March 2023.

The Public Inquiry commenced at 2:00 p.m. on 14 March in Caernarfon. Present was company director Christopher Jackson and Transport Manager Darron Burns. At the commencement of the hearing Mr Jackson indicated that he wished for Mr Burns to represent him in the proceedings. I advised Mr Jackson and Mr Burns that this was not possible because Mr Burns was himself a party to these proceedings and called to this Public Inquiry in his own right to consider his repute and professional competence as a Transport Manager. Mr Jackson stated that he did not feel confident representing the company at the proceedings, he had not sought legal advice nor read all the correspondence received from my office and would like an adjournment to seek appropriate advice and legal representation. I noted that the public inquiry brief did include a response to the DVSA from a firm of solicitors following receipt of VE Williams’ investigation visit report by the company. Mr Jackson indicated that he would contact those solicitors to seek advice and representation at the Inquiry and I adjourned the hearing to allow the company to do so. The Public Inquiry hearing was relisted for 23 May 2023 commencing at 10:00 a.m.

By e-mail of 9 May 2023 my office received a request from the operator that the hearing, set for 23 May 2023, be adjourned due to a pre booked holiday encompassing the date for the relisted hearing. That e-mail also attached a note from Mr Jackson’s GP indicating that he was unfit to attend work. An adjournment of the proceedings listed for 23 May 2023 was then agreed by me and this matter relisted for 5 July 2023.

By e-mail dated 14 June 2023, Laura Edwards (who described herself as ‘co-owner’ of the operating company) requested that the Public Inquiry be adjourned until at least September due to the director’s continuing unfitness to work, and that email enclosed a further note from Mr Jackson’s GP indicating that he was unfit to attend work.

Upon receipt of that e-mail a response was sent by letter dated 21 June 2023 from my office to the director at the listed e-mail address stating that my office would be unable to deal directly with Laura Edwards on the company’s behalf unless and until he gave written authority for her to deal with this office on the company’s behalf.

Confirmation that Ms Edwards could speak on behalf of the company was received via e-mail, signed by Christopher Jackson, dated 22 June 2023 which resulted in my office sending an e-mail to Mr Jackson on 23 June 2023 informing him that in considering his request, I had regard to the considerable public interest in hearings taking place on the date set and to the Senior Traffic Commissioner’s guidance that hearings should not be adjourned unless there is a good and compelling reason to do so.  The correspondence noted that I had already agreed to adjourn this hearing twice.  The company (represented by Mr Jackson, sole director), and Mr Burns (Transport Manager) originally appeared before me on 14 March 2023.  That public inquiry hearing was adjourned to give the operator further opportunity to seek advice, support and representation at a re-listed hearing.  The company attended the original Public Inquiry hearing expecting Mr Burns to represent it.  As a party to the inquiry in his own right, that clearly would have been quite inappropriate.  Mr Jackson as the company representative was strongly urged to seek immediate legal advice, given the serious failings alleged in the call-in letter and Public Inquiry Brief and the implications for the operator licence held by the company and for him personally of regulatory action that may be taken.  Mr Jackson confirmed that he would do so and the case was re-listed for 23rd May 2023. 

However, the company then requested an adjournment of the re-listed hearing as Mr Jackson was unavailable to attend on that date because he would be away on a pre-booked holiday and a sick note was also provided, signed by a GP declaring him to be unfit to attend work due to “anxiety states” until 1 June 2023.  I agreed to that adjournment request and the hearing was re-listed for 5 July 2023.

In considering the company’s request for a further adjournment, I had regard to the Senior Traffic Commissioner’s Statutory Document 9 on Case Management and specifically paragraph 30, which reminds parties that requests for adjournments on medical grounds should be supported by medical evidence which states if and why a party cannot attend a hearing. Whilst a medical certificate was provided that indicated Mr Jackson was unfit to attend work (as before because he was suffering from “anxiety states”), no medical evidence was provided to confirm that Mr Jackson cannot attend a hearing and, if so, the reason why.

Having considered all the circumstances of this case, including the public interest from a road safety perspective of this hearing proceeding on the due date, and the history of adjournments, the first of which was specifically to allow Mr Jackson to seek representation because he maintained that he was unable personally to represent the company, I refused the adjournment request. 

The operator was advised the hearing would proceed, as listed, at 10am on 5 July 2023.  The company was also reminded, as stated in the original call-in letter and by letter of 21 June 2023, that someone of below director level may attend the public inquiry on behalf of the company but that my prior written approval must be sought.

My office then received confirmation that Mr Jackson’s father, Mr David Jackson, would be attending on behalf of the company and that he was able to make binding decisions on behalf of the company, including financial decision.

At 10:00 a.m. on 5 July 2023 no persons were present on behalf of the operator. The Public Inquiry commenced at 10:15 a.m. on 5 July, allowing a further 15 minutes for the company representatives to arrive late. No persons attended nor advised this office that they would not be attending.

The letter dated 5 June 2023 re-calling the operator to Public Inquiry on 5 July 2023 clearly stated that the operator needed to resubmit financial evidence to show access to the required level of financial standing 14 days prior to the hearing date. At the original hearing on 14 March 2023 the operator was made aware that the limited financial evidence produced for that hearing was not acceptable and it was explained to Mr Jackson what was required. He was informed that the company must produce evidence of its financial standing and the recall letter explained again exactly what that evidence should include. The operator failed to provide that evidence.

The operator did provide some maintenance documents which were requested in the original call in letter dated 9 February 2023. These were sent, as requested, to VE Williams and he produced an update report dated 9 March 2023 for the purpose of the inquiry on the basis of the documents received from the operator and transport manager. That update report was served on all parties to the inquiry and was received by me in advance of the inquiry on 14 March 2023.

By email dated 3 July 2023, my office received a letter from Mr Jackson authorising his father, David Jackson, to speak on behalf of the company at the public inquiry hearing. The letter made some further representations and attached some photographs, some of which appeared to be screen shots taken from social media and relating to other operators, with most not labelled with any description other than “General Maintenance”. Mr Jackson indicated that his father would be in attendance and that I could explore these matters further with him at the inquiry hearing. He failed to attend with no explanation provided.

At 7:15 a.m. on 5 July 2023, the morning of the reconvened Public Inquiry hearing, my office received a request for an adjournment of these proceedings as they pertained to the Transport Manager Mr Burns. His email was referred to my shortly before the commencement of the hearing and, given that this was his first request for an adjournment of proceedings and that he was apparently unable to attend due to health reasons I indicated that I would agree to his request, with medical evidence to be provided within 7 days, and that the inquiry to consider his repute and professional competence would be re-listed.

I had regard to the public interest in the matter proceeding as listed, particularly given the history of adjournments and my refusal of the operator’s latest request for the reasons outlined. I was satisfied that there were no other factors where the interests of justice required an adjournment of the hearing in relation to the alleged operator licence compliance failings by the company which were serious and balancing the clear road safety risk to passengers and the travelling public. I proceeded with the public inquiry hearing in respect of the operator.

4. Findings

I made the following findings based on all the evidence before me, as set out above, and on the balance of probabilities:

The operator made statements when applying for the licence which were false or have not been fulfilled, specifically that vehicles would be inspected at the promised intervals (section 17(3)(a) of the Act refers). I considered the evidence of VE Williams and the operator’s response letter from Backhouse Jones solicitors, in that regard. Even allowing for the missing inspection reports which had allegedly been retained by the previous maintenance provider, with whom the operator was now in dispute, VE Williams evidence was that he could still see from the periodic maintenance inspection (“PMI”) records that were provided to him at the time of his visit that the inspection frequency periods had been extended. At the time of this hearing being called in March, only one single PMI record had been provided to VE Williams and that could possibly have been a first use inspection report, rather than a PMI report. It identified no brake test type having been completed and had not been correctly signed off. There were no PMI records provided, as requested, from the new maintenance provider;

The operator has failed to fulfil the undertakings he signed up to when he applied for the licence, namely to keep vehicles fit and serviceable; drivers to report promptly any defects that could prevent the safe operation of vehicles and report defects promptly in writing; and operator to keep records for 15 months of driver defect reports, safety inspections and routine maintenance and make them available on request (section 17(3)(aa) of the Act refers);

The operator’s vehicles have been issued with prohibition notices by the DVSA in the past five years (section 17(3)(c) of the Act refers);

By failing to provide the financial evidence in advance of the public inquiry as requested, or to make any representations in advance of the inquiry as to its financial standing, or to attend the hearing to make representations, I found that the operator no longer met the mandatory statutory requirement to be of appropriate financial standing (section 14ZA(2) of the Act refers). That is of course a mandatory ground for revocation of the licence under section 17(1)(a) of the Act. I also made a finding that the operator is no longer meets the statutory requirement to be of good repute (section 14ZA(2) of the Act refers, in view of the failures found and outlined above, and in view of its failure to engage with the public inquiry process by failing to provide the financial evidence requested or to attend the hearing, having already been advised that it would proceed today and that Mr Jackson senior could speak on behalf of the company.

5. Balancing exercise and decisions

I considered whether I could allow this operator’s licence to continue even if I were not obliged to revoke it because of a failure to meet the mandatory requirement of financial standing. Having regard to the Senior Traffic Commissioner’s Statutory Document 10, Annex 4, and having considered all of the evidence before me, balancing negative and positive features of the case, I place this case in the “severe to serious” category. There were persistent operator licence failings with an inadequate response from the operator by the date of this public inquiry hearing when it called on 14 March 2023. The documentation provided to the DVSA for the purpose of the inquiry hearing was inadequate and demonstrated a continuing lack of compliance. There were reckless acts by the operator and drivers which led to an undue risk to road safety. The prohibition notices that were issued to this operator’s vehicle just after it returned to the operating centre, having just completed the morning run, demonstrate a shocking approach to safety, with inoperative seatbelts, no fire extinguisher on the vehicle, an insecure battery which constituted a fire risk to name a few of the defects found. Of particular concern to the DVSA examiner was a seat that had been placed against the rear emergency door meaning that there was no access to the emergency door handle for passengers. The VE found that the emergency door could only be opened from the outside of the vehicle. That vehicle had just returned from transporting passengers that morning and was in a dangerous condition, with numerous defects which should have been picked up by the driver undertaking the walkaround check before use. Despite driver walkaround checks being identified as inadequate by VE Williams, there is evidence that the operator failed to address this and VE Williams’ update report dated 9 March 2023 notes continuing concerns in that regard. He gives examples from the operator’s recent records of inadequate walkaround checks, many of the checks completed in less than 10 minutes and including a walkaround check on 17 February 2023 where the driver checked 59 seatbelts in 43 seconds. He also notes that the company director, Mr Jackson, is recorded as carrying out a full check in only 2 minutes 52 seconds, checking 51 seat belts in only 1 minute 13 seconds. The new maintenance provider apparently used by the operator and added to its licence before this public inquiry contacted my office and asked to be removed from the licence, which it was. The stated maintenance provider is now Tim Hewitt, who is internal to the company and described as a driver in the public inquiry brief evidence (though as “maintenance manager” on the latest company headed paper – operator’s letter of 3 July 2023 refers). I note that he is one of the drivers named by VE Williams who failed to perform an adequate driver walkaround check and in relation to whom a concern is raised (at page 64 of the brief) that he signed off a vehicle as OK on 24 October 2022 after concerns had been raised about brakes not working and it being “dangerous”, despite it having failed a brake test that same day. It is clear to me that there have been insufficient changes made, in particular to maintenance arrangements and driver defect reporting to ensure future compliance. I have also taken into account the operator’s prohibition rate and MOT pass rate, which are poor. On the positive side there is little to weigh in the balance, although I have taken account of the lack of previous adverse history, albeit that the licence has only been in force since 2021. The negative features of this case, as set out in my findings above, significantly outweigh that limited positive.

I must revoke this licence on financial standing grounds, as already stated, but it is clear to me in considering the balancing exercise that when answering the Priority Freight (2009/225) question of how likely is it that the operator will comply in the future the answer is “unlikely”. That was in view of the findings I had made and outlined above. In considering the Bryan Haulage (no.2)(2002/217) question “is the conduct such that the operator ought to be put out of business?”, I had regard to the positive and negative features of the case. However, the evidence demonstrated to me that the operator fails to run its vehicles in a compliant manner and is no longer fit to hold an operator’s licence. This was a bad case and the starting point for regulatory action was “severe to serious”. I also took the view that other operators who carry out their businesses in a compliant manner would be shocked if another operator were permitted to operate vehicles against this background. I also weighed in the balance the safety of passengers and the travelling public. I considered that it was both proportionate and appropriate to answer the Bryan Haulage question in the affirmative and considered that revocation was the proportionate regulatory response. I decided to revoke the licence with effect from 23:45 hours on 5 July 2023.

I also considered the question of disqualification under section 28 of the Transport Act 1985. I had regard to the Senior Traffic Commissioner’s Statutory Document 10 and reminded myself that disqualification is not a direction that should routinely be ordered. However, there may be cases where the seriousness of the operator’s conduct is such that a traffic commissioner may properly consider that both revocation and disqualification are necessary for the purpose of enforcing the legislation. I was satisfied on the evidence that this operator cannot be trusted to comply with the regulatory regime and that the objective of the system, the protection of the public and fairness to other operators required that the operator be disqualified. I noted paragraph 65 of the statutory document which states that a clear example of such a case is where an operator fails to attend a public inquiry after an application to adjourn the hearing has been refused. Despite requesting that Mr David Jackson be allowed to attend, and consent having been given (following my refusal to grant a further adjournment), there was no attendance by the company and it failed to engage with the inquiry process. I directed that the operating company be disqualified from holding another operator’s licence for a period of two years with effect from 23:45 hours on 5 July 2023.

In considering the appropriate length of the disqualification order I had regard to paragraphs 69 and 108 of statutory document 10, and my balancing exercise is already set out above which also explains my reasoning for this disqualification.

Victoria Davies

Traffic Commissioner for Wales

5 July 2023