Decision

Decision for Bestway Minibuses

Published 30 June 2021

1. DECISION OF THE TRAFFIC COMMISSIONER

2. FOR THE NORTH WEST OF ENGLAND

In the matter of the Public Passenger Vehicles Act 1981 (“The Act”)

3. BESTWAY MINIBUSES LIMITED PC1120654

3.1 TRANSPORT MANAGER: GARY YOUNG

3.2 TRANSPORT MANAGER: ANDREW WRIGHT

3.3 Public Inquiry held at Golborne and Virtually On 2 June 2021

4. Decisions:

On findings in accordance with Public Passenger Vehicles Act 1981 sections 14ZA(2), 17(1), 17(3)(aa) and 17(3)(e):

The standard national public service vehicle operator’s licence of Bestway Minibuses Limited PC1120654 is suspended for 28 days with effect from 23:45 hours on Friday 30 July 2021 until 23:45 hours on Friday 27 August 2021.

The appointment of Shabnam Patel as director of the operator is approved subject to the operator ensuing her name is added to the vehicle online licensing system by 30 June 2021.

The following undertakings are recorded:

i. The operator will not permit any public service vehicles in its possession as of Friday 30 July 2021 to be operated under any other PSV operators’ licence during the period of the suspension

ii. The operator will inform the Office of the Traffic Commissioner at Golborne within 7 days in writing if Shabnam Patel is removed as a director or otherwise ceases to play an active role in the management of the company.

iii. The operator will retain the services of AS Miles Consultants for a period of 6 months until at least 31 December 2021 and will inform the Office of the Traffic Commissioner within 7 days in writing if that arrangement ceases.

iv. The operator will employ an independent service provider to analyse tachograph records and prepare monthly reports on the results of that analysis. The reports should identify any driver infringements and instances of driving without a card and driving by unknown drivers. The operator will act upon those reports, bringing the infringements to drivers’ attention and taking the necessary steps to reduce the likelihood of repetition. The reports will be retained for two years.

v. The operator will arrange an independent audit to be carried out by the RHA, Logistics UK or other suitable independent body, in November 2021. The audit will assess the systems for complying with maintenance and drivers’ hours requirements, and the effectiveness with which those systems are implemented. The audit should cover at least the applicable elements in the attached annex. A copy of the audit report, together with the operator’s detailed proposals for implementing the report’s recommendations, must be sent to the Office of the Traffic Commissioner at Golborne within 14 days of the date the operator receives it from the auditor and by no later than 15 December 2021.

vi. By 30 September 2021 Shabnam Patel will either:

• attend in person a one-day operator licence management training course; or

• participate in a virtual online one day operator licence management course.

Courses must be run by a trade association (RHA/Logistics UK/BAR/CPT), a professional body (IoTA/CILT/SOE/IRTE), a JAUPT accredited training centre or an exam centre approved by an accredited body to offer the transport manager CPC qualification in passenger transport. Virtual online courses must satisfy the criteria for such courses established by the traffic commissioners. Whether attending in person or participating in an online course, proof of attendance must be submitted to the Office of the Traffic Commissioner at Golborne within seven days of completing the course and by no later than 15 October 2021.

5. Introduction

Bestway Minibuses Limited (“the operator”) holds a standard national public service vehicle operator’s licence authorising the use of ten vehicles issued in 2013.

Until recently, its sole director since the issue of the licence has been Ismail Patel. On 21 May 2021, Mr Patel’s daughter Shabnam Patel was added as a director. She was not a director at the time of the matters considered in evidence at the hearing.

Also called to the public inquiry was Gary Donald Young who acted as the operator’s external Transport Manager between August 2018 and December 2019 and his successor, Andrew Wright who acted as Transport Manager between early 2020 and October 2020.

The operator’s current Transport Manager Alan Gibson was not the subject of the public inquiry, and his good repute and professional competence should be regarded as unblemished.

In March 2020 a DVSA investigation was commenced into the operator’s management of drivers’ hours. Traffic Examiner McCabe identified several infringements during the period November 2019 to January 2020. This included infringements by Mr Patel himself as a driver which led to a conjoined driver conduct hearing today.

TE McCabe also could not find any evidence that the operator was routinely downloading tachograph and driver card data.

It was this background which led to the call to public inquiry.

6. The Public inquiry

The public inquiry was convened virtually. I was present in the hearing room at Golborne with the clerk and an interpreter (whose services were not eventually required).

The other participants attended virtually by Microsoft Teams by consent of all the participants. I am satisfied all parties were able to participate as fully as they would have done in a traditional face to face hearing.

Ismail Patel attended in his capacity as director and driver. Shabnam Patel was also present for the operator as a newly appointed director. The operator and its directors were legally represented by Harry Bowyer of Smith Bowyer Clarke solicitors. Mr Alan Gibson was also present as the current Transport Manager.

The previous Transport Managers Gary Young and Andrew Wright were also present virtually.

Traffic Examiner McCabe attended to give evidence of his investigation, but all parties helpfully indicated his findings were not disputed.

7. Evidence

TE McCabe provided a brief summary of his findings. Specifically he found evidence from November 2019 to March 2020 of serious infringements of drivers’ hours including exceeded daily driving time and failure to take the full rest periods required. The drivers involved included Mr Patel.

The infringements arose when the vehicles were being used for rail replacement services and private hire work that were “in scope” for regulation unlike the school transport contract which the operator predominantly undertook.

Many of the infringements were accompanied by evidence that the drivers had not inserted their driver’s cards into the digital tachograph, including Mr Patel. There were questions whether this had been done deliberately to conceal the evidence of the infringements.

TE McCabe’s evidence was that he was not convinced the infringements were the result of deliberate falsification. The evidence more suggested that Mr Patel and his drivers were confused and ignorant about the requirements to record their hours and when drivers’ cards were to be inserted. I note that Mr Young later gave evidence that he had reached a similar view.

The infringements arose during the latter period of Mr Young’s tenure as Transport Manager and prior to Mr Wright’s formal appointment on 31 March 2020.

Of even greater concern, TE McCabe confirmed that he could find no evidence that tachograph records were being downloaded or analysed. Nor was there any process to identify infringements by drivers and to take remedial action. TE McCabe questioned if there was any evidence of continuous and effective management by a Transport Manager in the months leading up to his attendance.

Mr Young gave evidence that he had originally acted as Transport Manger for the operator in 2016 but left as he became frustrated that Mr Patel was not accepting his advice. He agreed to be reappointed in August 2018 after Mr Patel gave him assurances.

Mr Young insisted he had fully undertaken the role of Transport Manger from that time but had difficulties ensuring Mr Patel was available to speak to him. Mr Young also conceded that he did not have any written agreement on terms with the operator and that with hindsight this was an error.

Mr Young claimed that he had not undertaken any tachograph analysis as all of the operator’s work until just before his departure in December 2019 involved out of scope schools’ work.

This was contradicted by TE McCabe who said he found evidence of “in scope” work being undertaken as early as May 2019. Mr Young has also provided copies of correspondence with Mr Patel earlier in 2019 which supports a finding that he was aware the operator was undertaking private hire work much earlier in 2019 than he claimed at the inquiry. Much of that documentation appears to relate to Mr Young providing advice and support in relation to licensing and business matters that are more consistent with a transport consultant role. I saw little evidence of Transport Manager duties being undertaken.

Mr Young said he resigned on 1 December 2019 after he was made aware of some of the drivers’ hours infringements by the customer for the rail replacement service. This included the suggestion that Mr Patel had been withdrawing his drivers’ card. Mr Young described this as being fundamental breach of trust which prompted his resignation.

It appears a dispute then followed between Mr Young and the operator about unpaid fees. Mr Young admitted that he was in possession of a laptop belonging to the operator which he retained for some months pending payment of his fees. Mr Patel also maintained Mr Young was in possession of a tachograph downloader which had been purchased for the operator’s use. Mr Young denied he had ever been in possession of the downloader.

There was much discussion at the inquiry by Mr Young and Mr Patel (together with Mr Wright). I found all the evidence unsatisfactory and cannot reach any meaningful conclusion about the downloader and its whereabouts.

Similarly Mr Young and Mr Patel disagreed about whose responsibility it was to download the tachograph devices. I cannot resolve that conflict of evidence, but the key finding is that tachograph data was not downloaded and analysed during 2019 when it should have been done routinely. Mr Patel as director and Transport Manger Young must share responsibility for that failure.

Mr Young was questioned by Mr Bowyer about subsequent involvement with the operator in January 2021 when he had acted in some form of consultancy role, apparently linked to a company called [REDACTED]. Mr Young accepted he had assisted to draft the operator’s application for a period of grace in relation to the Transport Manager vacancy at the time. I heard evidence that a significant fee was charged by [REDACTED] for that work.

Mr Young said that he had become involved again as he had “no axe to grind” with Mr Patel and wanted to help him. I found this a surprising comment given that Mr Young claimed he was owed fees by the operator and that his resignation as Transport Manager was prompted by a lack of trust. Mr Young confirmed that he had not investigated the infringements prior to his resignation, and he now accepted it was unlikely that Mr Patel had acted deliberately when he failed to insert his drivers’ card.

I do question whether Mr Young’s involvement with the operator and Mr Patel has been driven by the best interests of the operator or whether the primary motive has been the commercial opportunities for Mr Young as a consultant. Certainly it appears the operator has not been well served by the support offered by Mr Young.

Andrew Wright confirmed in his evidence that he had initially acted as Transport Manager for the licence between 2016 and 2017 (when he was known as Andrew Goodier). He resigned initially as he also had concerns that Mr Patel was not fully accepting his advice and that progress in developing appropriate compliance systems was too slow.

Mr Wright said he agreed to be reappointed in early 2020 after Mr Young’s departure. He said Mr Patel was a genuinely nice person (a recurring theme from the various witnesses at the hearing) and he was drawn to help him. Mr Patel gave him assurances that he would work with him to improve matters.

There was some evidence of Mr Wright’s influence in that he did arrange for a reputable training provider to attend the operator in May 2020 to provide training to Mr Patel and the drivers on managing their hours.

Mr Wright’s involvement appears to have waned thereafter, which he attributed to the effects of the pandemic. This limited the extent of the company’s operations considerably and Mr Wright was no longer able to visit the operator’s office which was located in Mr Patel’s home. Mr Wright therefore decided to remove himself from the licence as transport Manager in October 2020.

Mr Patel then gave evidence by first adopting the contents of a written statement he had tendered beforehand. This largely dealt with the steps he had taken more recently to improve compliance and his own understanding. Mr Patel however confirmed he was concerned that Mr Young was not discharging his Transport Manager duties properly in 2019 and that he rarely saw him. That much is consistent in the evidence of both individuals although each tries to blame the other for that lack of contact.

Mr Patel said he had become confused about the driver’s hours requirements. In particular in relation to his own infringements in November 2019, he claimed that his confusion had been exacerbated by the fact he was fasting at the time.

Shabnam Patel gave evidence about how she was now taking a front-line role in managing the business. She explained she is studying for her Transport Manager CPC and is confident she could run the business alone. I asked Miss Patel who would win the argument if she disagreed with her father on some point of compliance. Miss Patel replied that she would prevail in such circumstances. Mr Patel and Mr Miles confirmed that was also their view. Miss Patel’s evidence inspired confidence she was aware of the core requirements of operator licensing and had the capability to seek advice to develop her knowledge further.

Andrew Miles gave evidence of the work he had done with the operator since February 2021. The operator had accepted his advice to change maintenance provider so that records were better kept. He had also installed a new compliance system (evidence of which I saw in the papers submitted in advance of the hearing).

Mr Miles confirmed he was impressed by Shabnam Patel. He also said Mr Patel’s problem was that he was “too nice” and unwilling to challenge others who may not have been giving him best advice. Mr Miles was however confident that with the support of Miss Patel and Transport Manager Gibson, Mr Patel now understood what needed to be done. Mr Miles was effusive in his praise of Mr Gibson describing him as in the top 5% of Transport Managers he has worked with in his long career in the industry.

I was also impressed by Mr Gibson when he gave his evidence. He presented as a strong character with a clear understanding of his responsibilities. He said Mr Patel had been frank with him about the problems of the past and was responsive to his recommendations. He also said there was no reluctance on the part of the directors to spend money on suggestions he made to improve compliance.

I asked Mr Gibson if he was concerned that his involvement with the operator might jeopardise his hitherto impeccable repute as a Transport Manager. Mr Gibson said he acknowledged the risk but saw it as a challenge. I found that an honest and reassuring answer.

8. Decisions

Bestway Minibuses Limited I find that the drivers’ hours infringements and the consequential finding that the operator did not have an effective system to manage drivers’ hours or working time falls into the category for severe regulatory action as envisaged by Statutory Document 10. The position is also compounded by the finding that the operator failed to ensure the requirement of professional competence was met by having a Transport Manger in place exercising continuous and effective control of the licence.

I further find these are matters which satisfy the grounds for regulatory action in the following sections of the Act:

• Section 17(1)(a) failure to meet the requirements of section 14ZA(2) of the Act in relation to good repute and professional competence.

• Section 17(3)(aa) (failure to honour undertakings.

• Section 17(3)(e) material change in the circumstances of the licence holder

I have balanced those considerable negatives with the positives that can be drawn from the operator’s current approach. There has not been any further adverse incident since March 2020. There is evidence that effective management control and appropriate systems and procedures are now in place (or are being developed) to prevent operator licence failings, albeit belatedly.

The operator has finally introduced effective analysis procedures for drivers’ hours and Working Time Directive infringements. I have seen evidence of appropriate training measures for both the directors and the drivers.

Having considered the positive and negative features of the case, I have then considered the Priority Freight test of whether this is an operator I can trust to be compliant in future.

If I were asking that question of the operator based on it being within the sole control of Mr Patel, the answer would be a resounding “no” given all that I have heard about his previous management of the licence. The likelihood is that in those circumstances, revocation of the licence would have followed.

However I have addressed the question based on the operator as it was presented to me at the public inquiry. I consider this is a very different company to the one investigated by TE McCabe in March 2020, and this is due to involvement of three key individuals.

First, the addition of Shabnam Patel as a director is a significant positive step. She impressed me with her evidence, and I am satisfied she is committed to ensuring the operator will be compliant in future. Her position is bolstered by her intention to achieve a CPC qualification, but I was also reassured by her acknowledgement that she will need to continue to rely on the assistance of a more experienced Transport Manager, at least initially.

Second, Mr Gibson as recently appointed Transport Manager was also an impressive witness. Having heard from Mr Gibson, I am confident he fully understands his duties to the Traffic Commissioner as well as the operator and will not only discharge his duties compliantly but will also provide sound advice and guidance to the directors.

Finally, the operator has clearly already benefitted from sound advice and support from Andrew Miles of AS Miles Consulting. However there is more work required to bring the operator fully up the standards of compliance required and whilst I have confidence that Ms Patel and Mr Gibson can achieve that, I also think it is desirable that they continue to have the assistance of Mr Miles in the immediate future.

Returning to the Priority Freight question, I have therefore concluded that I do trust the operator in its current form to be complaint going forward and pull back from revocation.

The severity of the failings that have arisen previously are such that meaningful alternative regulatory action against the operator is still required. This is intended to serve as an unequivocal warning that this is the operator’s last chance to prove it can be compliant.

I consider this can be achieved by a period of suspension of the licence for 28 days. I have set the dates for August 2021 when the operator was not due to be undertaking school contract work. This suspension means it will not be able to undertake any of its other work during that period either such as rail replacement services or private hire.

I have made that decision about the dates of the suspension more out of consideration for the impact an earlier suspension would have on the service to schools and pupils than to reduce any commercial impact for the operator. This is particularly having regard to the challenges facing schools and local authorities in maintaining such services at present.

Mr Ismail Patel’s repute as a director is severely tarnished but I hold back from disqualifying him from acting as a director. I have taken account of the evidence of the support that he now has in place and the assurances which he gave me that he will accept the good advice he is now receiving. I have also taken into account of the suspension of his vocational driver entitlement which has arisen from his own infringements and has been separately recorded as a driver conduct decision.

8.1 Transport Manager Gary Donald Young

Mr Young’s actions in relation to this licence concern me greatly. I found very little evidence that he had exercised the required continuous and effective management. I would also question whether in his dealings with the operator and Mr Patel, he always had their best interest as his primary concern. I have balanced these negative findings with the fact this is the first time that Mr Young has been called to a public inquiry. I also acknowledge that he is named as Transport Manager on 3 other licences and that those have not attracted any consideration of regulatory action. I have also not been able to resolve some relevant questions of fact in dispute between Mr Patel and Mr Young such as who was in possession of the downloader and responsible for using it.

As a result of the evidence I have heard and the findings reached, Mr Young’s good repute is hanging on a very fine balance. Because of the positive features identified above, I consider that balance falls marginally in Mr Young’s favour.

I therefore find his good repute as Transport Manager is severely tarnished but not lost. This finding is accompanied by a firm warning to Mr Young that it is the fact this was his first public inquiry that has been most persuasive. Mr Young will not be able to rely on that positive feature should he come to a Traffic Commissioner’s attention in future, and he must ensure that he undertakes his continuing Transport Manager roles with full compliance

8.2 Transport Manager Andrew Wright

I am troubled by the evidence I heard in relation to Mr Wright. It is not clear to me how active he was during his period as the Transport Manager in 2020. I also question if Mr Wright ought to have removed himself from the licence much sooner if he was truly concerned that he was not able to meet the required standards of a Transport Manger for the operator.

I balance this with the fact that Mr Wright was not the Transport Manger at the time of the issues in 2019 and up to March 2020 which prompted the inquiry. I also accept that the position is clouded by the intervention of the pandemic which both limited the extent of the operator’s activities in 2020 and served as an obstacle to Mr Wright visiting the operator in person.

For this reason, I draw back from making any formal adverse findings in relation to Mr Wright’s good repute as Transport Manager.

Gerallt Evans

Traffic Commissioner for the North West of England

15 June 2021