Decision for Denwell Mini Coaches Ltd (PH0007020) & Darren Brown – Transport Manager

Question 1

1. Written Decision of the Traffic Commissioner

Accepted Answer

1.1 Denwell Mini Coaches Ltd (PH0007020) & Darren Brown – Transport Manager

2. Annex A is not for release without permission of a traffic commissioner

3. BACKGROUND

Denwell Mini Coaches Ltd is the holder of a standard national public service vehicle operator’s licence authorising the use of twenty-five vehicles from an operating centre at Blackford Yard, Royal Wootton Bassett. The licence started in June 2000. The business changed ownership in August 2021. The sole director and transport manager since that time is Darren Brown. Despite the name, vehicles are full-size coaches and some double-deckers.

The operator was the subject of a DVSA maintenance investigation in August 2022 which found systems to be unsatisfactory. The operator gave assurances and those were accepted by the Vehicle Examiner. A follow-up investigation took place over the period July to September 2023. The outcome was worse than that a year earlier and it appeared that the assurances given had not been adhered to.

Vehicle Examiner Gary Beck notes that the MOT failure rate had worsened from 31.5% in 2022 to 45.95% in 2023. Twelve encounters resulted in nine prohibitions, a 75% prohibition rate. Even when the outcome was clear, there have been multiple advisory defects such as cracked windscreens and oil leaks. The last entirely clear inspection was July 2019, two years before Mr Brown acquired the business.

These reported shortcomings and the apparent downward trajectory caused me to call the operator to public inquiry in the following terms:

Under Section 17(1)(a) that the holder of the licence may no longer satisfy the requirements of Section 14ZA(2), namely that the licence holder no longer meets the requirement of:

Section 14ZA(2)(a) to have an effective and stable establishment in Great Britain (as determined in accordance with Article 5 of the 2009 Regulation),
Section 14ZA(2)(b) to be of good repute (as determined in accordance with paragraphs 1 to 5 of Schedule 3 of the Act),
Section 14ZA(2)(c) to be of the appropriate financial standing (as determined in accordance with Article 7 of the 2009 Regulation),
Section 14ZA(2)(d) to be professionally competent (as determined in accordance with paragraphs 3 to 7 of Schedule 3 of the Act).

Under Section 17(1)(b) of the Act and Section 14ZA(3) of the Act, that the nominated transport manager may not be exercising continuous and effective management of the transport operations;

Under Section 17(3)(a) of the 1981 Act, of the 1981 Act, that any statement of intent recorded in the licence has not been fulfilled, specifically:

that vehicles would be inspected at 10-week intervals;

Under Section 17(3)(aa) of the 1981 Act, of the 1981 Act, that any undertaking recorded in the licence has not been fulfilled, specifically:

that vehicles would be kept fit and serviceable
that drivers would report defects
that maintenance records would be kept for fifteen months

Under Section 17(1)(c) of the Act, that prohibitions had been issued;

Mr Brown was called separately to consider his good repute and professional competence as transport manager.

4. THE PUBLIC INQUIRY

Mr Darren Brown and Mr Philip Blanchard attended the inquiry represented by Anna Chestnutt of counsel instructed by Markel Law. Compliance documents were provided in advance along with written submissions. All were provided late. Proceedings were recorded and I do not recount the full evidence here. Wiltshire Council was in attendance as was Gloucestershire and other members of the public.

Finances were considered in private. See Annex A.

I set out my concern at the assurances that were given in 2022 appeared not to be honoured.

Ms Chestnutt offered an undertaking to reduce inspection periods from ten weeks to six. Mr Blanchard had joined the company from Calne Travel following the death of that operator. He had brought with him a colleague, Colin Carey. Initially they had joined to focus on pre-MOT inspections but that remit had widened to all maintenance, apart from three double-deckers that would not fit in the workshop. They would remain inspected by Swanbrook. Mr Blanchard would oversee the mechanics. Colin Carey would take over gate checks.

4.1 The evidence of Darren Brown

Mr Brown passed his CPC in 1999. Denwell Mini Coaches had been a competitor for ten years and had been offered to him as a retirement sale. He wanted to consolidate with Minibus Direct Ltd. That o-licence was coming to a natural end in September 2023. Fifteen vehicles are in operation. The peak vehicle requirement was also fifteen.

Denwell had a poor breakdown record and he had wanted to delete that. He hadn’t realised how bad it was at the time. The operation was home to school from Wiltshire Council and some commercial home to school services. There were no other operators who could cover that work. The drivers were employed by the company. He was on site five days a week, six to six.

Swanbrook had been dealing with all of the maintenance until 2021 when Denwell was purchased. Maintenance was then brought in-house. He believed that was satisfactory at the time but had since identified issues with the paperwork and the qualification of the fitters.

After the first DVSA visit, it was highlighted that there were issues with the paperwork. He brought back the former workshop manager, Tony Berry, who was tasked with sorting out the paperwork, inspection schedules and so on. It became apparent that things had gone backwards and had actually got worse. He hadn’t been aware that Tony Berry had been to public inquiry in 2019. Once that became apparent, he was removed from the workshop. Tony Berry was working to a negative effect to the company’s interests. He has been a driver since October. There had been issues there as well and he has now resigned.

There were not enough staff. They had more mechanics in the earlier part of the year but one had to be terminated due to poor workmanship. It was hard work getting mechanics, even harder getting them with a PCV licence. Steve Hall, workshop manager, had made mistakes but was under a lot of pressure. All those issues had now been addressed.

At the fleet check, prohibitions had been issued. All defects were corrected that day and the prohibitions lifted. In respect of BX09LME, the driver had reported nil defects. The vehicle picked up prohibitions for a horn and a tyre. In respect of the horn, there was a secondary switch and the driver had pressed the wrong button. When the driver returned, he had been spoken to and he offered his resignation and finished that day. Mr Brown accepted that there were shortcomings in the driver defect reporting system stating that it had been “signed-off”[1] by my office when he applied to take over the licence. There was now a new nil defect system in place.

[1] It is necessary to set the record straight and I do so without negative finding for Mr Brown. Any confusion is understandable given the time that has passed. In 2021, in parallel with the application to increase, Mr Brown was applying to be a transport manager on multiple licences. As is normal, he was asked to describe how he would maintain continuous and effective control. In his response, he outlined a defect-reporting process. The process was not assessed in relation to the increase and was not “signed off”.

He had been in touch with a training company and they would be looking at providing training in the future. As transport manager, it had been a very steep learning curve. The refresher courses had provided clarification. He was looking to take more courses and get an irtec qualification. He wasn’t a mechanic. I noted that the irtec course is intended for time-served technicians without a formal qualification. Mr Brown told me the course he was signing up to was about understanding PMIs. Whenever something had come up, a process had been put in place to address it. He felt let down mainly by staff who had previously been with Denwell.

Ms Chestnutt told me that Mr Brown would be willing to appoint another transport manager.

The garage side had got worse following the involvement of Tony Berry. After the first visit, Mr Brown had become aware of paperwork issues. I pointed out that we were not talking about paperwork but about dangerous vehicles. Mr Brown told me he had been let down by his managers. He had delegated his responsibilities. He had taken his eye off the ball because he thought that the people he had put there would do their job.

When he took over the company it was quite overwhelming. There was serious fraud and corruption and the effort needed to keep the company going was huge. I asked why six out of twenty-three inspections had no brake performance testing at all. I asked why the company relied on a decelerometer even when testing the brake performance on full-size coaches. Mr Brown told me that he hadn’t been aware that he needed to do roller brake tests.

I took Mr Brown to the Vehicle Examiner’s “SIPCAT” findings at page 74 of my bundle. Seventeen percent of inspections were late. Seventeen percent had dangerous defects. Forty-eight percent were not fully compliant. Twenty-six percent had no brake performance assessment of any sort. I took Mr Brown to a photograph at page 64 where a tyre had recut too deep, exposing the cords. Mr Brown told me that it had just passed an MOT in that condition. The tyre was otherwise in “reasonable” shape. He would “imagine” that the tyre was recut in house. He had not investigated who had done it. Re-cut tyres were no longer used.

I asked about the MOT fail rate. I was told that, from October, of eight vehicles tested, eight had passed. There had been a change in maintenance staff. That was a massive relief. I took Mr Brown to a safety inspection record for CN54HFJ dated 9 November 2023. I noted the defects found which included “emergency door handle and catch rod broken”, “emergency hammers to remount and seal”, “boot catches not catching”, “first aid kit incomplete”, “washer not hitting the screen”. Mr Brown told me it was a really old coach as, he accepted, most of his were. He had bought six coaches in the last eighteen months. He had asked Mr Blanchard to be “aggressive” in the inspections and to list everything. It was a pre-MOT inspection. I noted there was no brake assessment. Mr Brown told me again that he simply had to rely on mechanics to do their job. That vehicle was up together now. It had a three point check, lights smoke and brakes prior to MOT. Since that process, it had been 100% pass.

I took Mr Brown to the records for SHZ5734 which recorded eight defects including a seat belt broken. I asked why the inspection period was still at ten weeks? “No staff sir”. “That was recognised also in Mr Beck’s visit, he would recommend a shorter period but it would put more pressure on the already stretched workshop”. He now had more staff. I noted that SF07 inspected on 4 December, two months in to the new regime, was found with side-marker lamp inoperative, passenger door recycle inoperative. I was told all those jobs were done. The drivers were not recording defects. He had spoken to all drivers. I asked about the ABS defect that was recorded six times from October to December. Those tickets were all filed by Anthony Berry after he was removed from the workshop. Mr Brown did accept that there was a wiring defect. It had been affected by flood water. A number of brake tests had been done and performance was fine.

I took Mr Brown to that vehicle’s MOT in July 2023. It had been presented with an insecure brake calliper and with a bolt missing from the prop-shaft flange. Mr Brown accepted that the vehicle should not have been presented for test in that condition. There was no excuse for that coach. The mechanics should have not sent it like that. Mr Brown did not seem to understand that the vehicle must previously have been in service with those dangerous defects. All the staff involved had been removed from any maintenance process.

I reviewed another report, JFZ7023 on 13 October 2023. Again there were multiple serious defects. Tyres had insufficient load carrying capacity, seat belts and seats had to be resecured (the technician had not recorded how many), wheel arch loose, emergency door steps loose, fire extinguisher out of date, wiper blades, washers, gearbox mounting u/s, exhaust tailpipe u/s, anti-roll bar bushes u/s. I was told this was when Colin, the new mechanic arrived. It was his first day. He had done a thorough job.

4.2 Evidence of Martin Watson, Wiltshire Council

Mr Watson oversaw school transport in North Wiltshire covering around 2000 children. He told me that there was a supply and demand issue across north Wiltshire. Drivers were already double-running with children arriving late. The issue had been exacerbated by the loss of Calne Travel. They had to go out to tender twice to get the contracts taken up. If another operator was lost, there was no contingency. It was entering exam season in February. Operators would have to be brought in from way outside the county. Retendering could be done initially short-term over a week, and retendering proper takes a minimum of four weeks. Large vehicles were needed. One school had 139 children. This operator had five contracts covering 300 children.

4.3 Closing submissions

Any suspension of the licence would be untenable. There were county-wide shortages. Mr Brown understood the dim view that was being taken of his licence continuing.

There were green shoots. It was only six months since the DVSA investigation. When things are badly wrong, it takes time to identify the problems and put in solutions. Mr Brown has rooted out individuals who were not conducting themselves or their repairs safely. That demonstrated that he took responsibility. New staff had been brought in. That new regime was in its infancy. Mr Blanchard was very competent and worked for a highly renowned operator.

The licence could continue with stringent controls such as an audit after six months. Mr Brown would know that any more dangerous vehicles would see the licence revoked.

I reserved my decision and closed the hearing.

5. CONSIDERATION AND FINDINGS OF FACT

The Vehicle Examiner reports that the MOT failure rate had deteriorated from 31.5% to 45.95% and tells me that the national failure rate for PSV operators is 7.35%. Mr Brown told me several times that, since October, there had been eight tests with eight passes. That is not true. The report in my brief records six tests since October so I assume that there have been further tests since that report was printed on 13 December. Of the six, JFZ7023 failed on 9 October for headlamp aim. From the public record, I can see that it failed for only one headlamp which means that not even the most basic check – that both headlamps are pointing the same way, could have been carried out effectively. I note that it had to be re-presented two days later so it would seem that the adjustment mechanism was seized or otherwise failed. JFZ7013 passed on 30 October but with advisory defects for an engine malfunction indicator lamp and an oil leak from the differential seal. FJ08KLX failed on 29 October for lamps and had an advisory for a chipped windscreen. On 10 November 2023, FB54MTB passed but with advisories for corrosion in the rear suspension, corrosion in the engine subframe and an oil leak. CN54HFJ passed on 15 November with an advisory for brake disc condition on the rear axle.

These tests were all conducted under the new regime with Mr Blanchard and Mr Carey undertaking “aggressive” inspections and documenting every defect. I questioned Mr Brown about the pre-MOT inspection of CN54HFJ dated the same day as the test, 15 November. Carried out by Mr Carey, it fails to record any concern with the rear discs which must call in to question Mr Carey’s competence and judgement, particularly on an inspection where he had specifically been asked to be particularly thorough.

I do find that there has been an improvement of sorts in the MOT final fail rate but I am alarmed at the number and nature of the advisories. It supports my finding in relation to financial standing – there just does not seem to be the money to get the vehicles to the correct standard consistently and all year round. In any case, the previous history cannot be ignored and I have no hesitation in finding that vehicles are not kept fit and serviceable. Section 17(3)(aa) is made out in that regard and I attach significant weight.

I reviewed a number of inspection records with Mr Brown. He himself told me that drivers were not recording defects. That was true of the door sensitive edge, of damaged emergency exits, missing break-glass hammers, out-of-date fire extinguishers. Those are all potentially safety critical defects. There is now some training planned but it is too little, too late.

I find it hard to believe that so many professional drivers would choose not to report such dangerous matters as have gone unrecorded here. It may be that they do not do so because the chance of anything being done about them is quite low. I challenged Mr Brown in relation to the ABS defect reported at least half a dozen times on vehicle SF07YTX. He initially suggested that it was a disgruntled employee recording imaginary defects but ultimately concluded that wiring had been compromised by entry of floodwater. The defect was recorded from 18 October to 8 December (not every day). Whatever the reason, be it training, competence or, as I suspect, an embedded culture, I clearly conclude that drivers are not recording defects in writing. Section 17(3)(aa) is made out. Given the nature of the defects that have not been recorded, I attach significant weight to this finding.

I turn now to consider the good repute of the transport manager. I like to remind transport managers that repute means more than convictions or honesty. It includes the ability to manage a transport operation continuously and effectively and, as a former colleague once put it, a “fortitude for compliance”.

Darren Brown has grown the size of his operation rapidly. In doing so, he has, time and again, as he put it, “delegated his responsibilities”. Time and again he has been disappointed by the performance of those staff to whom he has delegated those responsibilities. But still the delegation with a clear lack of supervision continues. In support of that finding, I look at the actual MOT performance of his vehicles under the workshop management of Mr Blanchard, the latest person to seek to turn-around the operation. Mr Brown genuinely seemed to believe that Mr Blanchard had a 100% first time pass rate at annual test when it is, at best, 75%, a failure rate still more than three times the national average. I would not necessarily criticise Mr Blanchard for that given the condition of the vehicles he inherited and the failure defects, but Mr Brown should know the true position. It is, after all, set out in the public inquiry brief.

In his report, Vehicle Examiner Beck makes the following comment in relation to the ten-week inspection period: “Also, due to the vehicles being older and the amount of defects that are being identified at every inspection, I advise the interval is reduced slightly between safety inspections. My only concern with doing this is the safety inspections are already being missed, if the time was reduced between safety inspection dates, the workshop staff may not be able to cope with the extra workload?” Mr Brown relied upon this concern with respect to his staff to justify not having reduced the inspection period at all “No staff, sir”. The safety inspection period should arise from a risk assessment carried out by, or at least with, the transport manager.

DVSA’s Guide to Maintaining Roadworthiness covers inspection frequency at Section 4.2. The very first sentence reads “Operational needs must not override safety considerations”. The guide advises that vehicles over twelve weeks old would normally be inspected every six weeks. Case Study 4 is an example of a bus company with some vehicles over 12 years old and which are unreliable. The period stated there is 4 weeks. Mr Brown has stuck steadfastly to ten weeks – and even that was exceeded on 17% of occasions. I sense no fortitude for compliance, more an apathy towards it, perhaps feeling safe in the knowledge that the Council cannot afford easily to take a contract away.

There are many more deficiencies apparent. Vehicle Examiner Beck pointed out in July 2022 that maintenance records were out of date. That persisted in 2023. He found that reports had not been signed-off as roadworthy but that vehicles had nonetheless re-entered service. How did a transport manager permit that? Some defects which were marked as advisory were actually prohibitable. Forward planning advised on in 2022 had not been corrected by 2023. Maintenance staff were inhibited by having also to drive school runs.

In his response to Vehicle Examiner Beck in July 2022, Mr Brown stated “I trust the measures I am taking now will see an improvement in this over the next 12 months”. They did not, yet I am being asked to accept further and similar assurances once more.

I must look for positives. Since the DVSA intervention, Mr Brown has attended further refresher training. He talked about irtec training albeit he would not qualify to attend. There may be another course that he would find suitable. There are some new maintenance staff. He has identified a training provider for his drivers. He has invested in representation for the public inquiry.

Having conducted the balancing exercise, two matters tip the scales against Mr Brown. The first is his insistence on blaming others for his own misfortunes, whether that be drivers, fitters or managers. All come in from criticism from Mr Brown who fails to acknowledge that, as director and transport manager, it is his job and his responsibility to ensure that the operation is compliant. He may delegate tasks, he cannot delegate accountability. The second is the fact that the operation actually became significantly worse following the first DVSA investigation with assurances given not delivered. I find that Darren Brown has lost his good repute as transport manager. I also find that he has not been exercising continuous and effective control and Section 27(1)(b) is made out.

Ms Chestnutt told me that Mr Brown would be willing to appoint another transport manager. Had he done so prior to the hearing, that may have been of some assistance. I am not aware of any transport manager waiting in the wings. So what Ms Chestnutt is actually asking for is a period of grace to operate without professional competence. Granting such a period of grace requires more than mere hope and aspiration that the matter will be positively resolved. It is also necessary to be assured that compliance will continue meanwhile. It is entirely inappropriate to allow a highly non-compliant operation to continue without professional competence. The risk to road safety is just too high. The request for a period of grace is refused. Section 27(1)(a) is made out in relation to professional competence.

6. DECISIONS

Darren Brown has lost his good repute as transport manager and is disqualified from acting as such for a period of one year from 31 March 2024 and until he sits and passes again his transport manager certificate of professional competence.

Pursuant to an adverse finding under Section 17(3)(aa), that vehicles would be fit and serviceable and that drivers would record defects, licence PH0007020 is revoked.

Pursuant to Section 17(1)(a), lack of financial standing, the licence is revoked.

Pursuant to Section 17(1)(a), lack of professional competence, the licence is revoked.

Pursuant to Section 17(1)(b) of the Act, the licence is without continuous and effective management and is revoked.

Noting the lead times for Wiltshire Council and relying on the spotlight created by the public inquiry process to generate sufficient compliance to keep vehicles safe for a short period, the orders for revocation will take effect from 23:29 hours on 31 March 2024.

Kevin Rooney
Traffic Commissioner

23 January 2024

Question 2