Decision

Decision for Buzz2Go Minibuses Ltd (PC2042979) and Transport Manager: Carl Mann

Published 22 November 2023

0.1 In the North Western Traffic Area

1. Confirmation of Oral Decision of the Traffic Commissioner

1.1 Buzz2Go Minibuses Ltd (PC2042979) and Transport Manager: Carl Mann

2. Introduction

Buzz2go Minibuses Ltd (“the operator”) holds a standard national public service vehicle operator’s licence PC2042979 authorising the use of 7 vehicles issued on 19 April 2021.

The operator’s directors are Nigel Rogers, Kay Colvin and Carl Mann. Mr Mann is also the Transport Manager.

The call to public inquiry followed two unsatisfactory DVSA assessments.

On 19 August 2022, a DVSA Vehicle Examiner undertook a Maintenance Inspection Visit, and the subsequent report (“MIVR”) detailed a number of shortcomings including:

• Stretched inspection frequency – with 53% overdue.

• VOR system ineffectively managed.

• Annual test history indicated poor management control and poor maintenance standards.

• No pre-MOT inspection of vehicles.

• Improvements required to wheel security systems.

The Operator responded at the time with assurances that it would address the shortcomings including asserting that inspections would be arranged in closer proximity to annual test to improve its pass rate.

In fact, the MOT pass rate deteriorated further after the DVSA visit.

This prompted a further DVSA desk-based assessment (“DBA”) in June 2023 to check if the shortcomings had been addressed and the assurances realised.

That further assessment again resulted in unsatisfactory findings. The DBA highlighted the continuing issues with the annual test history that indicated poor management control and/ poor maintenance standards. The Operator had an 80% failure rate since the MIVR in August 2022. 5 vehicles had been presented for annual test and only 1 had passed.

Over the life of the licence from April 2021 to 1 August 2023 the initial failure rate for the Operator’s vehicles at annual test was a very poor 90%, well above the national average of 11%

In April 2023, the Operator applied to increase the number of vehicles authorised on the licence from 7 to 10 vehicles. Due the concerns about its compliance, that application was also referred for consideration at this public inquiry alongside the question if regulatory action was needed on the existing licence.

The Operator, its directors and TM Mann had not previously been called to a public inquiry.

3. The Call to Public Inquiry

The Operator was called up to public inquiry by letter dated 16 August 2023. This gave notice that the issues of concern to be considered related to Sections 17(3)(a) and 17(3)(aa) of the Public Passenger Vehicles Act 1981 (“The 1981 Act”). Additionally, notice was given then the inquiry would specifically consider the requirements of Sections 14ZA(3), 14ZC(1)(a) and 17(1)(b) of the 1981 Act in relation to the variation application. Finally, notice was given that the disqualification provisions of Section 28 of the Transport Act 1985 would be considered if necessary.

Transport Manager Mann was called up by letter of the same date that gave notice his good repute and professional competence would be considered in accordance with Schedule 3 of the 1981 Act.

4. The Public Inquiry

The Public Inquiry was initially scheduled for hearing on 26 September 2023.  heard at Golborne but was adjourned until today as the DVSA vehicle examiner had not had the opportunity to consider the Operator’s up to date evidence as a result of some confusion over the new process for serving such evidence.

The operator was represented in person by its directors Nigel Rogers, Kay Colwill and Carl Mann, the latter also attending as Transport Manager.

The operator, its directors and TM Mann were legally represented by Samuel Jones, counsel instructed by Stephenson’s’ solicitors.

5. Evidence and Submissions

In advance of the inquiry, I was provided with a report dated 26 September 2023 from Vehicle Examiner Snelson on the evidence that the Operator had provided in readiness for the public inquiry. VE Snelson notes that some improvement shad been made. However, there were still some minor issues with recording of preventative maintenance inspections. He also noted that the driver defect books for two of the vehicles had no defects recorded over 15 months.

VE Snelson’s greatest concern was the continuing high MoT failure rate which he put at 57% over the 12 months since August 2022. This is well above the national average of 7%. Two of the three vehicles presented for annual test in 2023 had failed. VE Snelson noted that both had bene used for some days in between their most recent inspection and presentation for annual test. It appeared that the Operator had not acted on this shortcoming and was failing to arrange inspections immediately prior to MoT.

I was also provided with detailed written submissions by Mr Jones, supported by witness statements from Mr Rogers and Mr Mann and a recent audit by Transport Consultant Grahame Robinson.

Both Mr Mann and Mr Rogers formally adopted the contents of their written statements in evidence today. In further evidence at the hearing, Mr Mann admitted to a lack of experience and said this had resulted in him failing to appreciate the significance of the MoT failure rate. He said he had learnt much from the experience of dealing with the DVSA and the public inquiry process as well as the assistance now being provided by Mr Robinson.

I asked Mr Mann if they had considered whether the business would be better served by investment in newer replacement vehicles than acquiring additional vehicles. Mr Mann said his life would be made easier if he had newer vehicles.

Mr Rogers accepted that they should have acted sooner to replace the maintenance provider. He also pointed to the transition from operating 2 vehicles to 7 vehicles as being a contributory factor in the issues that arose.

Mr Rogers then indicated that he had no immediate plans to increase the number of vehicles and would concentrate on improving the condition of the existing fleet.

The submissions conceded the findings of the Vehicle Examiner’s two reports and that of the desk-based assessment (subject to some minor points of detail). It was accepted that the failings were sufficiently serious to fall into the category of “moderate” for consideration of regulatory action against the Operator. It was also conceded that the failings had tarnished Mr Mann’s repute as Transport Manager.

It was argued that the Operator had belatedly addressed the issue with its MoT pass rates by changing its maintenance provider in August 2023. The early indications were that this had started to bear fruit in terms of improved pass rates at annual test.

It was argued on behalf of the Operator that its licence should not be revoked.

In addition to the improvements claimed by the Operator I was also asked to consider the difficulties that would be caused to the local authority if it was unable to use the Operator’s services for school transport.

6. Findings

As the findings of the DVSA reports have been effectively conceded by the Operator and TM Mann, I consequently make the following findings of fact:

• The Operator has failed to fulfil the statement made when applying for the licence that its vehicles would be inspected at the 10-week interval it promised they would be. This satisfies the ground for regulatory action in section 17(3)(a) of the Act.

• The Operator has not honoured the undertaking it gave at the grant of the licence to keep its vehicles fit and serviceable. This satisfies the ground for regulatory action in section 17(3)(a) of the Act.

These matters also combine to call into question the good repute of the Operator for the purposes of the provisions of Section 17(3)(d) of the Act and the good repute of its Transport Manager Carl Mann.

7. Decision

I am satisfied that financial standing has been shown both for the existing licence and for the purposes of the variation application (had it proceeded).

Having reached the findings of fact recorded above, I have considered the balancing exercise and have considered the positive and negative features by reference to the guidance in the Senior Traffic Commissioner’s Statutory Document Number 10.

I have also considered the representations made by Mr Jones who argued that I should consider the matters fell within the bracket of “moderate” for the purposes of determining the appropriate outcome.

The positive features that I identify are:

• There do now appear to be appropriate systems and procedures in place to prevent operator licence failings.

• Some changes have been made with tangible evidence in support, to ensure compliance.

• The Operator co-operated with enforcement investigation.

• This is the Operator’s first public inquiry.

These positives must be balanced with the following negative features:

• The persistently high MoT failure rate raises concern of a risk to road safety, which is especially troubling for a school transport operator.

• Until recent months, there was ineffective management control and insufficient systems and procedures in place to prevent operator licence compliance failings.

• The persistently low average first time pass rate at MOT.

I have also taken account of the fact that these shortcomings were first raised with the Operator at the time of the DVSA visit in August 2022 and whilst, some changes have been in the year that has passed since that visit, these have not yet been demonstrated to be swift or effective enough.

Having balanced those factors listed above, I consider this matter falls into the category of “moderate to serious” for the purposes of regulatory action in accordance with the starting points in Statutory Document 10.

I have gone on to consider the Priority Freight question, namely, “how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime?” I have some confidence that the Operator and its Transport Manager are capable of operating compliantly in future, but I remain concerned at the slow pace of change to date.

To ensure that the Operator clearly understands the expectation of compliance going forward and the urgency with which the outstanding issues must be addressed, I consider that regulatory action in the form of a time limited suspension of the licence is necessary.

I have taken note of the submissions made as regards the inconvenience any decision I make may have on the local authority. I make it clear that I consider such submissions to be of limited relevance to my ultimate decision. The paramount concern that I must address is about road safety and the safety of the passengers and that outweighs any inconvenience to the local authority.

That said, I consider that I can reach a balance between the action I need to take in the interests of future compliance in this case and the interests of the local authorities and those using the Operator’s services.

Accordingly, I determine that the proportionate course of action is to suspend the licence for a period of 14 days that will run concurrently with the school Christmas holiday period.

In reaching my decision I have also taken account of the undertakings offered the Operator.

Mr Mann has properly conceded that his good repute as Transport Manager has been tarnished by these matters. I make the same criticism of him in relation to the slow pace of change as I do in relation to Operator. However, I have balanced this with the fact, that Mr Mann has played his part in effecting some changes. Having read his witness statement and heard from him today, I consider that he could become an effective Transport Manager especially if he takes the opportunity to refresh his professional competence training. I also note the support to be provided to him in the next few months by an experienced Transport Consultant.

For that reason, I do not find that Mr Mann’s good repute is lost but I record it is tarnished. I also record a formal warning.

As the Operator conceded during the hearing that they did not wish to pursue the variation application, I will not make a determination on that matter and will record the application as withdrawn.

I will note that it is unlikely I would have granted the application had it been pursued today. Whilst I acknowledge the changes made by the Operator and the progress towards full compliance, it is also evident that much remains to be done especially in terms of delivering a tangible improvement to the initial pass rate at annual test to a figure that is much closer to the national average. Until that has been shown, I consider it would have been premature to make a finding that the Operator could be trusted to operate a larger number of vehicles in a compliant manner.

If the Operator can demonstrate it has achieved and sustained a marked improvement in its annual test pass rates over a prolonged period as well as avoiding other indicators of non-compliance such as prohibitions, it will be open to it to make a renewed application for variation. Whilst I do not seek to prevent any earlier application, I would observe that it will be 12 months in July 2024 from the date the maintenance provider was changed with the intention of improving MoT performance. An application to vary made after July 2024 supported by an improvement in pass rates and a satisfactory audit is likely to inspire more confidence from the Traffic Commissioner than another potentially premature application.

Gerallt Evans
Traffic Commissioner for the North West of England

9 November 2023