Decision

Written decision for Gloucester Minibuses Limited (PH1135753), Steven John Smee and Matthew Turley – transport managers

Published 30 October 2020

Traffic Commissioner for the West of England

Public Inquiry, Bristol, before Deputy Traffic Commissioner Fiona Harrington.

Hearing 19 August 2020 (with directions following for the provision of further documentation).

Public Passenger Vehicles Act 1981 (as amended) (“the Act”).

EC Regulation 1071/2009 (“the EC Regulation”).

Section 28 of the Transport Act 1985 (“the Transport Act”).

1. Decisions

1.1 The Operator

The Operator’s Public Service Vehicle (“PSV”) Operator’s Licence is REVOKED with effect from 23:59 hours on 30 November 2020 under the following provision of the Act:

Section 17(1) of “the act”

It appears to me that the Operator no longer satisfies the requirements of Section 14ZA (2) of the Act, as I am no longer satisfied that the Operator is of good repute for the purposes of Section 14ZA(2)(b) of the Act.

Section 17(1A) (and Article 13.1 of the EC Regulation)

I have not exercised my discretion to serve a notice on the Operator setting a time limit, in accordance with Article 13.1 of the EC Regulation, to rectify the foregoing.

Further or alternatively, the Operator’s PSV Operator’s Licence is REVOKED with effect from 23:59 hours on 30 November 2020 using the discretion afforded to me under Section 17(2) of the Act, having found that the following grounds specified in Section 17(3) of the Act are made out from the evidence accepted and adopted by me:

Section 17(3) (aa) of “the act”

That any undertaking recorded in the Operator’s Licence has not been fulfilled- namely that: * the Operator has failed to have proper arrangements in place to ensure that (i) the vehicles operated under this Licence are kept fit and serviceable, (ii) its drivers would report promptly any defects or symptoms of defects that could prevent the safe operation of vehicles and that any defects would be promptly recorded in writing; and * the Operator has failed to adhere to the following undertaking attached to the Licence in February 2019, namely that “All vehicles shall complete a safety inspection by the Operator’s nominated maintainer at no more than 4 weekly intervals, to include metered brake testing with printed results retained with the safety inspection record. The safety inspection record shall be fully completed and fully signed off and dated. The vehicles shall be subject to brake testing using a calibrated roller brake tester (‘RBT’) at no more than 8 weekly intervals. The printed RBT results shall be retained with the safety inspection records”

Section17(3)(c) of “the act”

That prohibitions under Section 69 of the Road Traffic Act 1988 have been imposed with respect to vehicles owned or operated by the Operator.

Section 17(3)€ of “the act”

That there has been since the Licence was granted or varied a material change in any circumstances of the Operator which were relevant to the grant or variation of its Licence, namely:

• the Operator’s previous compliance history (summarised in the Background section in the written reasons for this decision) and the foregoing;
• the Operator’s failure to notify the Traffic Commissioner of the material change in its maintenance arrangements (after statements made in February 2019) and of the incapacity of TM Turley for the period between 17 December 2019 and March 2020;
• the use by the Operator of vehicle VRM LW55 AHV at various times in the period between 9 March 2019 and 11 February 2020 without payment of the appropriate Vehicle Excise Duty which had been due since 9 March 2019;
• the driving by Mr Smee on the public highway of the Operator’s vehicle VRM YJ62 FMD on 12 February 2020 after the vehicle had failed its annual test and was subject to an Immediate prohibition notice in effect as issued by DVSA at the annual test for a dangerous brake defect.

Without prejudice to my determination that this Operator’s Licence should not continue, the foregoing orders to revoke this Operator’s Licence have been delayed to 30 November 2020 as ordered, pursuant to Section 17(5) of the Act, so as to enable the business carried on under this Licence to be transferred or wound down in an orderly manner and for the passengers using local registered bus services operated by it servicing Chosen Hill School to be accommodated by other operators or arrangements.

1.2 Transport Managers

TM Smee

I have determined that the Operator, acting by Mr Steven Smee, is no longer of good repute and separately determine that TM Smee is no longer of good repute (as determined in accordance with paragraph 1 of Schedule 3 of the Act) for the purposes of the role of a transport manager, that it is not disproportionate to so find and that he is disqualified from acting as a Transport Manager for an indefinite period pursuant to paragraph 7B (2) of Schedule 3 of the Act with immediate effect.

TM Turley

I find that TM Turley has only performed the duties of a transport manager for a relatively short period following his nomination as a transport manager against this licence in September 2019 noting the exceptional circumstances which left him incapable to work from 17 December 2019 until March 2020 immediately prior to the COVID-19 lockdown then commencing. He failed to notify the Traffic Commissioner of his absence from work for over 3 months, prior to this Public Inquiry. His circumstances explain and mitigate this failing but do not fully excuse it. It is patent from the requirement imposed on 19 February 2019 to appoint a different or additional transport manager for this licence that the new transport manager’s role was key to the continuation of this licence. TM Turley’s lack of availability to undertake his duties for some 3 months prior to lockdown was a material change to the circumstances of the Operator that should have been brought to the attention of the Traffic Commissioner by the Operator and TM Turley for consideration. In addition, during his period of service TM Turley, by his own admission, failed to oversee all of the matters falling within his remit as a nominated transport manager, delegating, without any oversight on his part, key duties wholly to TM Smee. The full extent of his duties expected of him were clearly set out in the TM1 form signed by the Operator and him on application to act as a nominated transport manager for this licence. I find that this is a serious breach of his responsibilities as a transport manager.

TM Turley is issued with a formal warning for these failures without further regulatory action, on this occasion, as I trust and rely on his assurances that he has learnt from this experience and the failings identified.

2. Reasons for the decisions

2.1 Background

The Operator currently holds a Standard National PSV Operator’s Licence authorising the operation of up to 7 vehicles, with 7 discs in issue, granted by the Traffic Commissioner for the West of England with effect from 26 March 2015.

From operator licensing records, the Operator has the following compliance history. The Traffic Commissioner proposed to revoke this licence in December 2016 as it appeared that the Operator no longer had a nominated transport manager to satisfy the requirements of professional competence, following the resignation of Mrs Julie Smee as Transport Manager in June 2015. In response, the Operator requested a Public Inquiry which was adjourned and subsequently listed for a date in November 2016. Prior to the November hearing, the Operator satisfied the Traffic Commissioner that professional competence was met for this licence, by the appointment of (then recently qualified) TM Smee as an internal transport manager, promising to commit 40 hours per week to his duties as transport manager. The Traffic Commissioner, noting that the marriage of the parties involved had broken down and they had divorced in 2015, vacated the Inquiry and issued a formal warning to the Operator, finding that the Operator had not been professionally competent for a significant period of time and that there had been irregularities in correspondence with the Traffic Commissioner.

The Operator and TM Smee were called to a Public Inquiry which took place before me on 13 February 2019, following reports received by the Traffic Commissioner from the DVSA following a maintenance investigation carried out by Vehicle Examiner (‘VE’) Glynn Smith in October 2018 which was marked in the opinion of the examining VE as ‘Unsatisfactory’, together with reports from Gloucestershire County Council (with photographs) of excessively worn tyres found on one of the Operator’s vehicles during a Council school transport maintenance check. The failings in the maintenance regime and transport management by Mr Smee were found by me to be serious and explained (but not excused) by some particular personal difficulties during 2018 described by Mr Smee. The number of vehicles that could be operated under the licence was reduced from 8 vehicles to 1 vehicle for a period of 9 consecutive days and thereafter from 8 vehicles to 7 vehicles. In addition, further undertakings were added to the licence which were relied on in making the decision:

• All vehicles shall complete a safety inspection by the Operator’s nominated maintainer at no more than 4 weekly intervals, to include metered brake testing with printed results retained with the safety inspection record. The safety inspection record shall be fully completed and fully signed off and dated. The vehicles shall be subject to brake testing using a calibrated roller brake tester (‘RBT’) at no more than 8 weekly intervals. The printed RBT results shall be retained with the safety inspection records.

• Maintenance contracts to record the above arrangements shall be completed and submitted by the Operator to the OTC Bristol so that these are received by no later than 31 March 2019.

• The Transport Manager shall complete a TM CPC Refresher course of not less than 2 days in duration, to be attended in person, provided by a trade association (CPT) or a recognised organisation (CILT/SOE/IRTE/IOTA) or an OCR approved organisation for the TM CPC in passenger transport, by no later than 31 August 2019. Proof of course completion shall be provided by the Operator to DVSA or the OTC promptly on request.

• The Operator shall arrange for an independent external audit to be completed of all of its systems & records to comply with this licence to be completed by a trade association (CPT) or a body appropriately experienced in completing such audits for the Traffic Commissioner, by no later than 30 June 2019. An unedited copy of the audit report shall be submitted by the Operator to the OTC Bristol so that it is received by no later than 31 July 2019, together with the Operator’s timetable & proposals for implementing the recommendations made by the auditor (if any).

• The Operator shall nominate a new transport manager of good repute and professional competence to act alone or jointly with Mr Smee as transport manager for the Operator by the submission of a fully completed TM(1) form with all necessary accompanying documents to be received by OTC Bristol by no later than 30 September 2019, for the approval of the Traffic Commissioner.

The decision also included my findings that:

• The repute of the Operator, acting by its sole director Mr Smee, and of its Transport Manager [Mr Smee] has been very seriously tarnished by [the breaches found] which arose from serious failings in the basic obligation to effectively and continuously manage and monitor the vehicle maintenance arrangements and documentation for extended periods in 2018.

• I have relied heavily on the admissions and assurances of Mr Smee given to me in evidence today as to the future ongoing compliance of the Operator and the performance by him of the duties of transport manager, Mr Smee has been placed in no doubt that the continuation of this licence requires these assurances to be delivered.

The Operator provided the new maintenance contract, evidence of the transport manager refresher training completed by Mr Smee and the auditor’s report with a covering letter all as required by the undertakings above.

An application to add TM Turley as an additional transport manager for this licence was received by the Traffic Commissioner on 10 August 2019. In the TM1 Form, completed by the Operator and him, TM Turley commits to spend 30 hours a week on his transport manager duties.

As a consequence of reports received by the Traffic Commissioner:

1. from DVSA VE Nathan Harwood following a maintenance investigation conducted by him on 5 and 19 November 2019, which was marked in his opinion as ‘Unsatisfactory’; and
2. of an incident on 23 October 2019 where the Operator’s vehicle, VRM LX53 KBF, was driven with a defective middle service door whilst on a local registered service carrying school children passengers, with standing schoolchildren manually closing the door as it repeatedly opened while travelling at speed. Passenger video footage of the incident was provided showing the serious dangers this posed,

the Traffic Commissioner determined that the Operator and the Transport Managers should be called to this further Public Inquiry (and that Driver Mr Ismail S Shaikh, the driver of vehicle VRM LX53 KBF on 23 October 2019 with the defective door, should be called to a driver conduct hearing to be listed and heard at the same time).

The Office of the Traffic Commissioner, Bristol (‘the OTC’) prepared two indexed bundles of documents for this Public Inquiry (‘the Operator’s Brief’).

The Operator was called to the Public Inquiry by a letter from the OTC dated 20 January 2020 contained in the Operator’s Brief, Bundle 1 at pages 7 to 11. A separate letter was sent to TM Smee of the same date, at pages 12 to 15 and to TM Turley at pages 16 to 19. The hearing listed initially for 2 March 2020 was adjourned due to the COVID-19 restrictions and re-listed to take place on 19 August 2020.

2.2 The Public Inquiry hearing

The Operator attended the Inquiry hearing on 19 August 2020 acting by its sole director Mr Steven John Smee, who also appeared before the Inquiry in his role as one of the two nominated transport managers of the Operator.

TM Turley also attended the hearing in his role as a transport manager for the Operator. The Operator and the two transport managers were represented by Mr Scott Bell of Backhouse Jones, Solicitors.

DVSA VE Nathan Harwood attended and gave his oral evidence ‘virtually’ via a Microsoft Teams video link visible and audible to all parties present in the hearing room. I am satisfied that the giving and taking of his evidence was not impeded by this format.

Driver Ismail S Shaikh did not attend the hearing. He is aged 77 and has stated that he no longer wishes to hold his UK driving licence entitlements to drive PCV (full) or large goods vehicles (provisionally). A separate decision has been issued revoking this driver’s UK vocational driving licence entitlements.

On the morning of the Inquiry, I had sight of correspondence sent by Gloucestershire County Council to the Traffic Commissioner concerning the Operator and TM Smee, as well as a BBC News website report dated 17 January 2020 concerning the cancellation of a school contract between the Operator and Gloucestershire County Council dated 17 January 2020. In addition, I was provided with the written representations made by Driver Ismail S Shaikh who had advised he would not be attending the driver conduct hearing. At my direction, and with Mr Shaikh’s consent concerning his written representations, copies of all these documents were provided to the Operator and the transport managers through Mr Bell before the hearing commenced. Mr Bell confirmed to me that the parties were content to proceed with the Inquiry and to address the issues raised by this further documentation. I therefore proceeded to open the Inquiry.

At the end of the Public Inquiry hearing, I gave directions to the Operator to produce various original documentation which has since been duly provided and considered.

2.3 Considerations and Findings

In addition to the Background above, including the video evidence referred to concerning the incident of 23 October 2019, I accept and adopt the evidence of VE Nathan Harwood given and produced in his reports (with attachments), within the Operator’s Brief, as follows, and his responses to questions made of him at the Inquiry hearing (which are a matter of record as those proceedings were recorded):

• PG13 F &G Form dated 5 November 2019 – pages 54 to 58 of the Operator’s Brief, Bundle 1;
• Maintenance Report dated 4 December 2019 – pages 62 to 70 of the Operator’s Brief, Bundle 1;
• Public Inquiry Brief dated 4 February 2020 – pages 1 to 64 of the Operator’s Brief, Bundle 2;
• Supplementary Information Report concerning (i) the school transport maintenance check at Chosen Hill School 11 February 2020 and (ii) the incident on 12 February 2020 at the Rygor Gloucester Authorised Test Facility (‘ATF’) (Section 9 witness statement Vehicle Standards Assessor (‘VSA’) Daniel Field dated 13 February 2020) – pages 65 to 72 of Operator’s Brief, Bundle 2.

From the foregoing, I find that an unannounced maintenance investigation was carried out by VE Harwood on 5 November 2019. A further announced visit was carried out on 19 November 2019. The outcome of the investigation was, in the opinion of VE Harwood “unsatisfactory”, with the VE finding that:

• The quality of driver defect reporting required increased monitoring and management by the Operator and transport managers, noting by example that an advisory defect found by the VE on vehicle VRM GL02 BUS was known to the Operator (the replacement part was on order) and had occurred prior to the day in question but the defect had not been noted in any driver walk round reports (damaged offside external mirror glass) including a driver’s report that same day. In addition, on 25 October 2019, a driver had noted a lighting defect on a defect report for vehicle VRM GL02 BUS but appears to have failed in signing the record or reporting the defect to anyone in control;
• Extended safety inspection intervals with 50% of the intervals in breach of the stated 4-week inspection interval, principally at 5 weeks. As roller brake testing is carried out at every other safety inspection this had also resulted in breaches of the requirement for these brake tests to be carried out at no more than 8 weekly intervals;
• Workshop planning and capacity (one person) and workshop facilities require review to meet the DVSA Guide to Maintaining Roadworthiness. Further, the in-house maintenance is by Mr Smee who is experienced by ‘time served’ but not formally qualified;
• The DVSA Guide to Maintaining Roadworthiness states that ‘all weather’ maintenance facilities should be available. The in-house maintenance operation however uses portable lifts outside with no form of adverse weather protection, heating, or suitable additional lighting. The VE concluded that unless maintenance is transferred to an alternative provider in times of poor lighting and/or weather, be that wind, rain, or extreme cold/snow, then the quality of inspections will inevitably deteriorate and be restricted. He noted that the weather tends to be hard to predict and fluctuate, often with only limited notice, and therefore effective forward planning is also prevented and this increases the likelihood of maintenance being delayed in such events should an alternative provider be required on short notice. Therefore, the VE sees no alternative than to suggest a halt of in-house safety inspections until such time where suitable facilities are available;
• On 23 October 2019, VRM LX53 KBF was driven with a defect known to the driver of the vehicle whereby the middle service door failed in its operated design and opened without just cause whilst the vehicle was driven at speed with passengers, school children, on board. No written driver defect report was apparently made by the driver and no reported communication of the fault made by the driver to the Operator. The driver instructed school children to stand by the open door and to use the door controls, while the vehicle was moving at speed, to manually override the faulty system to close the doors. A video showing this was recorded within the vehicle during the journey on a pupil’s mobile phone. This video was released to the media and, (not unsurprisingly in my view, having viewed it) attracted negative attention for the Operator. The VE found it evident that swift internal action had been taken by the Operator regarding the driver in the form of interview and immediate documented dismissal and that all drivers had previously signed documentation confirming their obligations to undertake and record walk round checks and of training being satisfactory. The VE concludes that the signed documentation relating to the disciplinary conduct meeting, the recorded outcome (immediate dismissal) and the lack of evidence to suggest any long-standing defects were present ‘…indicate that this was likely a driver failure.’ The VE concludes that he ‘..sees no credible means for the operator to have prevented this incident from occurring whilst its systems and procedures were not being followed by the driver on the day as reported’;
• Although a calibrated Bowmonk decelerometer and printer is in the Operator’s possession this has not been used so that the requirement for metered brake testing at every safety inspection has not been met. The VE attributed its lack of use ‘due to a lack of understanding of its workings.’ Advice and guidance was given concerning its use;
• Calibrated equipment such as torque wrenches appear to have no maintenance regime and no history of continued calibration. The torque wrench was described by the VE as ‘old and uncalibrated’. The Operator subsequently advised him that a new torque wrench had been purchased following his advice;
• No risk assessments are in place for tyres over 10 years old;
• The use of ‘VOR’ file markers appeared to be ad-hoc in nature;
• The Operator did not have a copy of the latest DVSA Guide to Maintaining Roadworthiness made available in November 2018, producing the previous version (from 2014) to the VE.

Vehicle VRM GL02 BUS was checked by the VE during the maintenance inspection, and was found to be free of prohibitable defects, but the vehicle was found to have defects resulting in an Inspection Notice (advisory) being issued by the VE for the following 3 items, advising early rectification:

• External offside wide-angle mirror glass damaged;
• Offside lower windscreen cracked;
• Offside rear upper end outline marker lamp inoperative.

The Operator replied on 2 December 2019 to the PG13FG Notice left by the VE which requested its written response to the shortcomings found. From this (as subject to examination at the Inquiry) I accept that maintenance is now carried out principally in-house by Mr Steven Smee. Since the DVSA investigation in November 2019 he has gained IRTEC accreditation for his maintenance skills and knowledge. The nominated external maintenance provider is retained to carry out ‘heavy’ maintenance that cannot be conducted in-house.

Mr Smee accepts that he did not have ‘all weather’ facilities to carry out maintenance and had continued to seek landlord permission to install these or to find suitable alternative facilities. I note this has been a long-standing issue. It is noted by the independent auditor in his audit report in July 2019 and the Operator’s response to this audit concern was to assure me at that time that the matter was expected to be resolved ‘shortly’. Despite this assurance, and the VE opinion that in-house maintenance should cease until all weather facilities are found, the maintenance inspections have continued to be carried out in-house without these since the VE’s investigation in November 2019. Alternative arrangements were put in place only shortly before the Inquiry to use the undercover workshop facilities provided by Eblys Coaches for the in-house maintenance inspections.

Mr Smee had scheduled the safety inspections to be carried out calendar monthly with the result that some 50% of the safety inspections were carried out after the 4-week inspection period up to 5- weekly. As the RBT was arranged to take place every other safety inspection this too had slipped beyond the 8-week testing period required. Mr Smee attributed this to a misunderstanding on his part and pointed out that the auditor had not raised this as an issue in his audit of 21 June 2019, indicating that the 2019 undertaking was being complied with. I note that this is only partly true however as the auditor contradicts this in a later section of the audit noting the ‘dramatic improvement’ in inspection frequency from the February 2019 PI but ‘…there will still (sic) some inspections going over the 4 weekly cycle albeit not by much but this needs to be tightened up.’ I note that Mr Smee responded to the VE giving his opinion that the calendar monthly inspection regime was adequate and that he considered a change to 4 weekly to be unecessary to maintain vehicle safety. No application to vary the undertaking has been submitted.

Operator licence records show the maintenance arrangements to be in-house and G and M motors with safety inspections at no more than 4-week intervals. The maintenance contract sent to the OTC following the Public Inquiry on 13 February 2019 with G and M Motors duly provides for inspections at no more than 4-week intervals. The Operator sent the new contract to the Traffic Commissioner advising that the new external maintainer had a roller brake facility and that this would be used ‘at every inspection.’ This statement by the Operator has not been updated by the Operator since that time to notify that inspections have moved principally in-house with RBT at every other inspection.

As of 4 December 2019, the VE concluded that, as action had been taken following the independent audit and his findings in November 2019, he saw no reason why this operator should not be found as fully compliant once a period of time is given for full implementation of the assurances.

Mr Smee explained to me that Gloucestershire County Council had completed their own investigation of the incident on vehicle VRM LX53 KBF on 23 October 2019 and had removed Mr Shaikh from their list of approved drivers. Mr Smee described how he had been at Chosen Hill School on the afternoon of 23 October as he was driving a bus on another local service stopping at the School. He assisted driver Shaikh to move and park his vehicle at the School as Mr Shaikh was experiencing some difficulty manoeuvring the vehicle. Mr Smee described how he would not have been able to move the vehicle without the service doors closed from start and that the vehicle’s doors operated without any problem apparent to him. Mr Smee was most adamant that Mr Shaikh had not told him that the doors failed to operate as intended when the vehicle was travelling, until he returned to the Operating centre after completing the service. Mr Smee pointed out to me that TM Turley was in the yard close to the School on 23 October 2019 and had access to 2 spare vehicles that could have been used in lieu of the faulty vehicle if the driver had reported the fault to the Operator. The fault on vehicle VRM LX53 KBF was subsequently identified as a faulty Electronic Control Unit, kept in stock by the company.

Mr Smee also stated that the vehicle’s on-board CCTV was not working as designed to do so on 23 October 2019. This had not apparently been evident as the camera unit lights were on, but it was not recording to hard drive at the time. This obviously is extremely unfortunate. This incident is a prime example of when CCTV footage is potentially a valuable tool for the Operator as well as the enforcement authorities. If it had been available it may have helpfully corroborated the account of Mr Smee in the foregoing paragraph.

Mr Shaikh represents that he had completed defect reports for the defective door and had advised the operator of the problem many times and that they ‘never fixed it’. He submits that the Operator is trying to blame him for the incident and to clear their name. There are however no entries in the driver defect report book for vehicle VRM LX53 KBF seen by me by Mr Shaikh (or indeed any other driver) reporting the defective door in writing as he suggests in his representations. The pages are consecutively numbered, and entries dated, with no pages missing. My observations on the defect book entries around 23 October 2019 are consistent with the VE findings. Further, Mr Shaikh states that he has not previously seen the disciplinary interview record and letter produced by the Operator, shown to the VE in November 2019 and to me for this Inquiry, which are not signed by him. In terms of the allegations made by the driver, I prefer the defect report book and interview documentation produced to me, accepting the evidence of Mr Turley on this including his evidence that the documents were posted to Mr. Shaikh. I have placed reduced weight on the representations of the driver concerning the incident who has failed to attend the hearing and whose evidence has not thereby been subject to critical examination through questioning. His representations fail to avoid or mitigate his own conduct whilst the driver of VRM LX53 KBF on 23 October 2020 in charge of the vehicle and its passengers.

I noted that Mr Shaikh had driven VRM LX53 KBF on the afternoon service and that a driver walk round check had been completed by another driver in the morning that same day. Mr Smee explained that it was not practice for drivers to complete another driver walk round defect report if they swapped vehicles during the day (but could be introduced).

Gloucestershire County Council subsequently advised the Traffic Commissioner that the Operator is no longer an approved supplier for school transport to the Council. Mention is made by the Council of previous maintenance concerns and, in particular, the major incident of 23 October 2019. The BBC News report of 17 January 2020 reports that the Operator would no longer be providing school transport for Dene Magna School in the Forest of Dean. This followed allegations concerning the condition and cleanliness of the vehicles servicing the contracts which were investigated by the Council.

Following the publicised Dene Magna School complaints, a complaint was received by the Traffic Commissioner on 22 January 2020 concerning the condition of vehicles operating the local registered bus services which are used by pupils of Chosen Hill School. Various photographs were attached to this complaint showing brown matter on the floor of a bus, which the writer stated was faeces left uncleaned for some 5 days whilst the vehicle was still in use on the local registered service.

In response to the various concerns raised regarding vehicle hygiene and cleanliness, Mr Smee explained to me that each driver had been responsible for checking and cleaning their bus after the completion of service. I know that the carriage of unsupervised schoolchildren may sometimes result in particular problems, such as petty vandalism and discarding of rubbish in the vehicle, which increases the importance of checking and cleaning vehicles properly after such services. It appears, however, that the Operator’s drivers had not been completing the post- service checks and cleaning needed to a satisfactory standard on the 3 buses used for the Dene Magna School contract, which operated some 20 miles distant from the Operator’s Bristol Road operating centre, without the vehicles returning during the day between services. Complaints were raised by parents of travelling schoolchildren of ‘filthy’ and ‘disgusting’ vehicles. Mr Smee submits that not all the complaints were substantiated and that matters had been made out to be worse than reality. He conceded, however, that the position had not been acceptable, and that hygiene had lapsed, with particular problems on one vehicle. In relation to the parental complaint concerning the Chosen Magna School local registered service Mr Smee was adamant that the substance pictured on the various photographs was not faeces, but a melted chocolate caramel bar found by him under a seat after investigating the complaint. I accept that the complainant’s photographs could be consistent with Mr Smee’s explanation, but also find that the accepted problems of poor cleanliness and leaving food debris uncleaned on a bus for several days is not at all satisfactory and does not reflect well on the standards of the Operator.

Mr Smee advised me that the Dene Magna School contracts had been terminated by Gloucestershire County Council on notice. The vehicles were inspected by the Council and confirmed satisfactorily clean before the services continued during the notice period to March 2020 and thereafter, by agreement, on a limited basis during lockdown to 4 July 2020.

Mr Smee explained that in light of the concerns and issues raised regarding vehicle cleanliness, as well as the increased sanitisation requirements introduced to address passenger safety and COVID- 19, the company’s practice had changed such that the Operator’s vehicles are now cleaned and disinfected at the operating centre by Mr Smee or Mr Turley before each use.

On 11 February 2020, as part of a routine school transport maintenance check arranged by DVSA with the cooperation of Gloucestershire County Council and Chosen Hill School, 2 vehicles operated by the Operator were inspected by VE Harwood- vehicle VRM LW55 AHV and vehicle VRM LJ05 BKA. The VE recalls that the interior of both vehicles inspected was clean at that time.

Vehicle VRM LW55 AHV was issued with a Delayed roadworthiness prohibition notice due to a significant brake valve leak with the engine running, described by the VE as audible from the exterior and at a distance. VE Harwood notes that this fault could have arisen at any time and he had no evidence of when it arose. The VE’s check of DVLA records revealed that the Vehicle Excise Duty (‘VED’) for this vehicle had expired on 9 March 2019, highlighting a long-term failure on the part of the Operator to ensure compliance with the law concerning the payment of VED, an offence. Mr Smee stated to me that he had ‘no idea’ how the payment of VED for vehicle VRM LW55 AHV had been missed and seeks to assure me that this was not intentional in any way.

The driver of vehicle VRM LJ05 BKA was asked by the VE to operate the system enabling him to monitor passengers on the upper deck. He was unable to do so. He then claimed that this failure was due to a long-standing intermittent defect known to Mr Smee. The VE issued an advisory notice for the defect, advising early rectification. In the absence of any defect reports of this fault in the drivers’ defect report book for the vehicle, the VE found no evidence to convince him that the driver had checked this safety system, reported any defect in it or even if he knew how to operate it. The Operator submits a lack of driver knowledge and understanding was the cause of the failing and that the system itself was not defective.

Mr Smee advised me at Inquiry that the Operator continues to have permission from Chosen Hill School to enter their premises to park and pick up schoolchildren passengers from there.

A Section 9 Witness Statement from Vehicle Standards Assessor (‘VSA’) Daniel Field dated 13 February 2020 is included in the evidence given and produced by VE Harwood (pages 71 and 72 of Operator’s Brief, Bundle 2). From this I find as follows.

On Wednesday 12 February 2020 VSA Field was on duty at the ATF at Rygor, Gloucester. The Operator’s vehicle VRM YJ62 FMD was presented for statutory annual inspection. The brake test of the vehicle carried out using the approved and calibrated roller brake tester at the ATF recorded that the service and park braking systems fitted to the offside of the second axle of the vehicle, a white Optare Solo bus in the Operator’s livery, were not operating as originally designed to do so. This resulted in dangerous defects being recorded against the vehicle’s test history and the mandatory issuing of an Immediate Roadworthiness Prohibition Notice (PG9). Immediate prohibitions are issued where, in the opinion of an examiner, the defects on the vehicle are such that further driving of it would involve a risk of injury to any person. Additional defects were found as part of the test examination which resulted in major and minor defects also being recorded against the vehicle test history. The driver of the vehicle Mr Smee was advised of these findings and issued with the Refusal of Test Certificate and the Immediate PG9 notice. The Immediate PG9 notice came into force immediately and Mr Smee signed the notice to acknowledge receipt of this.

Mr Smee advised VSA Field, in the presence of his Technical Team Leader Mr David Parsons who was conducting a quality Control check of VSA Field’s practices and findings, that he was going to park up in a safe place on site and arrange the recovery of the vehicle to his preferred destination.

Following this, the VSA and his Team Leader completed their duties at the ATF and VSA Field then visited the Morrison’s Supermarket, which is opposite the ATF. At approximately 13:30 hours, while sat in his company vehicle, he observed clearly that Mr Smee was driving the vehicle tested and prohibited by him, VRM YJ62 FMD, away from the ATF premises and onto the public highway. Mr Smee was therefore contravening the Immediate PG9 in force against the vehicle and committing an offence under section 7(1) (a) of the Road Traffic Act 1988. The VSA contacted the Police and reported his observation of an offence being committed. VE Harwood was not aware of any Police action following this report.

Mr Smee does not dispute the VSA findings and accepts that he drove the vehicle on the public highway after it had failed its annual test and made subject to an Immediate PG9 notice. He explained that the vehicle had not been taken by him for a pre-MOT brake test before test presentation which could have identified the defect, found later to be a component fault. He accepted that there was no excuse for driving the vehicle from the ATF but explained that he had been unable to arrange transport of the vehicle from the ATF and, by the time this became evident to him, no DVSA officer remained present to consider an application by him to vary the PG9 to allow the vehicle to be driven the 2 miles to the operating centre before the Immediate prohibition took effect. He describes this as a ‘stupid’ decision but that he ‘was stuck’ and that he had reasoned with himself that it was safe to drive as the vehicle still had 3 operational brakes and an extremely good retarder. He attributes his flawed judgment to ‘everything else that was going on at the time’.

The VE expressed his particular disappointment that the advice and guidance given by him to complete metered brake testing had not been followed by Mr Smee after his November 2019 visit and gave his opinion that this, combined with the ATF incident above, is ‘…obviously a concern.’

Mr Smee explained that he had been under extreme pressure from the impact of the negative media reports following the videoed bus door incident in October 2019 and the cancellation of the contract to provide school transport for Dene Magna School in January 2020, combined with the unexpected extended unavailability of Mr Turley from mid-December 2019 and the passing of his father-in-law during this time. As he put to me, he had the ‘worry of everything’ and was ‘back to doing everything’ himself. I note the previous failings considered at the February 2019 Inquiry were similarly attributed to extenuating personal pressures on Mr Smee and his capacity.

Turning to my consideration of the ‘good repute’ of the Operator, for the purposes of Section 17(1) of the Act, I need to assess a number of different factors which have to be weighed against each other, that is to evaluate all of my findings on the evidence before me relevant to the determination of good repute having regard to Schedule 3 paragraph 1 of the Act.

This is not a case without some positive evidence in favour of the Operator, particularly:

• Mr Smee completed the TM CPC refresher training required of him in 2019;
• The Operator had an audit completed of its compliance systems as required in 2019 and acted on some of its recommendations;
• A new additional transport manager was nominated in 2019;
• The Operator has cooperated with the DVSA, with prompt responses given concerning the DVSA visit findings as considered above;
• The Operator is of the appropriate financial standing (and a lack of available finance should not be a bar to achieving compliance);
• This is not an Operator with a total lack of systems with arrangements in place, for example, for driver walk round checks and vehicle inspections. The VE, for example, described the maintenance record storage as a ‘clear and accessible system’, using the appropriate record forms for the PSV inspections. From this I accept that recommendations made in the 2019 audit for improved record storage had been followed by the Operator. The VE also described the driver defect reporting system working ‘…as intended in the majority’;
• Tyre repairs/replacements are contracted to an external provider who carry out wheel re-torque checks after work is carried out and on demand;
• Prior to the Immediate prohibition PG9 issued for the dangerous brake defect at annual test in February 2020 the Operator had a clear prohibition encounter history recorded on DVSA records, albeit with limited encounters outside of annual test;
• The opinion of VE Harwood that safety was not compromised in practice by the Operator’s breach of undertaking regarding metered brake testing noting the RBT results;
• The changes, albeit only shortly before the Inquiry, to commence metered brake testing in compliance with the licence undertaking and to use undercover workshop facilities to undertake in-house safety inspections.

Balanced against the foregoing however are the following matters: -

• the combined shortcomings in its compliance with the requirements of this Licence, including undertakings attached to the Licence, as set out in paragraph 2 above, found by me from the evidence considered in these reasons;

• The defects found on DVSA inspection of vehicles at the fleet check on 19 November 2019 and at annual test on 12 February 2020 and at the school transport maintenance check on 11 February 2020, such that no vehicle was found to be clear of any defects with advisory notices issued, a Delayed PG9 notice and an Immediate PG9 notice. The Operator’s continued use of outside inspection facilities against advice at the time these notices were issued during which poor weather and poor light is inevitable. Mr Smee’s stated failure to have a roller brake test undertaken on the vehicle before presenting it for annual test on 12 February 2020. My conclusion that these matters, combined with the explanations given by Mr Smee concerning the pressures he was under during this time, show that the preventative maintenance systems of this Operator were not operating to a satisfactory standard during this period. The cleanliness of the Operator’s vehicles also fell below satisfactory levels during this time leading to complaints;

• Apparent repeated failings in the reporting of defects by drivers of the Operator and in the management and monitoring of the driver walk round inspection and recording systems which have been found at each DVSA maintenance investigation, and which on two known occasions has resulted in a failure to prevent the use of vehicles to transport schoolchildren with serious defects present (the serious longstanding tyre defects considered at the Public Inquiry in February 2019, with bus tyres pictured at a school transport maintenance check almost devoid of tread, and the use of the vehicle with the passenger safety critical door defect in October 2019);

• The Operator’s failure to have proper arrangements in place to ensure compliance with the law concerning payment of VED;

• The driving of the Operator’s vehicle on the public highway on 12 February 2020 having failed its annual test and subject to a prohibition in force prohibiting the driving of the vehicle;

• The Operator’s failure to address shortcomings in its maintenance facilities in a timely manner notwithstanding the advice of the independent auditor and VE in 2019, with change effected only shortly before this Public Inquiry;

• The Operator’s failure to complete metered brake testing using the equipment in its possession until August 2020 immediately before this Public Inquiry;

• the failure of this Operator to be diligent in its compliance with all of the requirements of this Licence (not just some of these) on an ongoing basis notwithstanding, its previous assurances to the Traffic Commissioner resulting in “leeway” having been given to allow this Licence to continue in February 2019; strong words of warning from me in February 2019 when taking regulatory action short of revocation; the advice and guidance given to Mr Smee as part of DVSA investigation visits in 2018 and 2019 and the further transport manager training completed by Mr Smee in 2019; the addition of a second Transport Manager.

I find that no reasonable explanation has been given to me for the failure to comply strictly with the terms of the undertaking concerning the maximum intervals for safety inspections and RBT given in February 2019. When undertakings are given it is reasonable to expect them to be complied with. That is what the adjudication arm of the regulatory regime requires. (see Upper Tribunal decision on the appeal by George Young Coaches 2019/077). Mr Smee states to me that the failings arose from a ‘lack of understanding’ on his part. If I accepted this I must question whether I can be confident in his ability to comply as a person who does not always understand what is required to be compliant despite the advice, guidance and training received by him. I do not find it credible however that he failed to understand the maximum times between inspections and RBT required by the undertaking or that the audit report did not alert him to the 4-week requirement as it specifically refers to this and must be read as a whole. The undertaking time limits are clear and specific, would have been advised orally at the end of the hearing, and then in the decision letter issued. The maintenance contract then supplied by the Operator after the Inquiry also reflects a 4-week maximum inspection interval. At no time at or since the Inquiry has Mr Smee sought to vary the undertaking from 4 weekly to ‘calendar monthly’ or otherwise. I find his claimed lack of understanding to be disingenuous.

I further find it incredible that Mr Smee also failed to ensure that metered brake testing was carried out at every safety inspection as undertaken, even more so when a decelerometer had been purchased. I was assured at the Inquiry in February 2019 that this decelerometer would be used – and print outs were produced to me for that Inquiry of handbrake and service brake tests completed by Mr Smee using it on one of the operator’s vehicles. Given this, I find it incredible that Mr Smee now claims he did not understand how to use the meter and produce a printout, also noting he is an IRTEC accredited mechanic with access to the relevant instruction manuals. The failing is aggravated given that his method of brake testing at safety inspections continued to be road testing even after the VE Maintenance investigation in November 2019 when the issue of brake testing was discussed and advice and guidance was given by the VE on the use of the decelerometer. Mr Smee submits that he ‘intended’ to use the meter after that November 2019 visit but that some 3 to 4 weeks later things ‘became difficult’ for him (as considered above) and as a result he had not done so. I do not accept those matters would have prevented him from using the meter for safety inspections had he genuinely intended to do so. I note, from the safety inspection reports produced for this Inquiry, that he continued assessing brakes by road test as late as July 2020. He seeks to assure me that he will be using the decelerometer meter from this month, August. I find his claimed lack of understanding and stated previous intentions to be disingenuous.

Mr Smee also deliberately drove an Optare bus on the public highway in February this year that had just failed its annual test and had been issued with an Immediate PG9 notice for a dangerous brake defect. By his own evidence he knew that the vehicle could not be lawfully driven on the public highway, but he did so nonetheless.

I remind myself of the principles articulated in the Transport Tribunal decision upon appeal 2001/049 Norbert Dentressangle that where there are repeated errors there is likely to be some degree of deliberateness or recklessness on the part of the operator. Further, in the decision upon the appeal 2011/036 LWB Limited the Tribunal stated that a persistent failure to comply with undertakings, especially following a warning, may provide compelling reasons to conclude that there has been a loss of repute – “actions speak louder than words”, an approach endorsed by the Upper Tribunal in its decision upon Appeal NT/2013/82 Arnold Transport and Sons Ltd v DOENI.

I am drawn to conclude that despite the evidence of some positive compliance the combination of the matters considered in paragraphs 52 to 55 above reveal an unacceptable lack of full compliance despite previous advice guidance and regulatory action and an attitude of mind and conduct on the part of Mr Smee such that my trust in him to act compliantly at all times (particularly when faced with difficult personal or business circumstances) and to always be honest and open with this Office is sufficiently undermined to be destroyed.

I find the good repute of the Operator under Mr Smee’s control as the sole director and shareholder is lost, as is TM Smee’s good repute to act as a Transport Manager. I find his conduct to be such that it is not disproportionate to order as set out in paragraph 4 above.

In relation to TM Turley I find as set out in my paragraph 5 above.

When I pose myself the question suggested by the Transport Tribunal in its decision upon appeal 2009/225 Priority Freight Limited and Paul Williams, namely, is the Operator someone I can trust to ensure future compliance, my conclusion is ‘No’. Despite the opportunities given to this Operator to demonstrate that it can comply fully with all of the requirements of an Operator’s Licence, it has, failed to do so even when clearly under the continuing attention of the Traffic Commissioner.

I do not identify any rehabilitation measure that could be completed by TM Smee to address his failings before he may apply to the Traffic Commissioner to cancel or vary the order made in my paragraph 4 above. If and when he applies he will need to satisfy the Traffic Commissioner at that time that he can be trusted to comply going forwards despite this poor compliance history and my concerns as to his openness and honesty.

I have considered what action is appropriate for this Operator having found as above and also having found that grounds under Section 17(3) of the Act have been made out from my findings on the evidence entitling me to exercise my discretion under Section 17(2) of the Act to revoke, suspend or vary the condition specifying the maximum number of vehicles operated under this Licence.

In considering the regulatory action that may be appropriate and proportionate in this case I have taken account of the evidence given by the Operator as to the effects on its business of regulatory action, including the potentially fatal adverse effects on the business of revocation, suspension or reducing the number of vehicles that may be operated under this licence from 7 vehicles to less than 4 vehicles (the number currently operated by the Operator). I have asked myself the question suggested by the Tribunal decision upon the Appeal 217/2002 Bryan Haulage Limited:

. . . the question is not whether the conduct is so serious as to amount to a loss of repute but whether it is so serious as to require revocation. Put simply, the question becomes “is the conduct such that the operator ought to be put out of business?” (My emphasis).

I have considered the guidance given in the latest Senior Traffic Commissioner Statutory Document No. 10 on “The Principles of Decision Making and the Concept of Proportionality”. I consider this at best to be a “severe to serious” case for the purposes of Annex 4 of that Statutory Document. My previous order reducing the number of vehicles that could be operated under this licence clearly failed to avoid further compliance shortcomings on the part of this Operator since February 2019. I answer the Bryan Haulage question, emphasised by me above, in the affirmative. Given the failings found I find that the public interest in maintaining the integrity of the operator licensing system requires me to revoke this licence and that it is not disproportionate to do so in this particular case.

Having revoked this Licence, I have then considered whether an order of disqualification is appropriate in this case against the Operator and/or Mr Smee under Section 28 of the Transport Act 1985. In this case I do not find that the objectives of the system, the protection of the public and fairness to other operators require I take the additional step of making any orders of disqualification although my decision was certainly close on this issue. There has, been a serious breach of the Traffic Commissioner’s trust placed in this Operator and Mr Smee as found above. Accordingly, in the event that the Operator and/or Mr Smee are associated with an operator’s licence in future, then this will require close scrutiny and careful consideration by the Traffic Commissioner by reason of this history.

Deputy Traffic Commissioner Fiona Harrington LL.B (Hons), Solicitor

Office of the Traffic Commissioner for the West of England

4 October 2020