Decision

Decision for Homers Travel Ltd (PD2012499)

Published 2 March 2023

0.1 In the West Midlands Traffic Area

1. Written Decision of the Deputy Traffic Commissioner

1.1 Homers Travel Ltd (PD2012499)

2. Background

Homers Travel Ltd holds a standard national PSV operator licence for three vehicles. The licence was granted in May 2018. The sole director of the company is Robert Gibson. Mr Gibson is also the nominated transport manager on the licence.

2.1 2019 DVSA Investigation

In 2019 DVSA carried out a maintenance investigation into Homers Travel Ltd and the result was unsatisfactory. Shortcomings reported were:

i) safety inspection intervals not being respected;

ii) numerous driver detectable defects on safety inspection sheets (defects with lights, windscreen washers etc)’

iii) inspections being conducted on site (with inadequate inspection facilities);

iv) 66% MOT failure rate;

v) prohibition for defective tyre.

Mr Gibson gave DVSA various assurances, including:

i) he would do a walk round check with every driver to ensure they were doing defect checks correctly and would carry out spot checks of drivers in the future;

ii) he was in discussion with a couple of operators to see if he could put an agreement in place to use their facilities for the regular safety inspections;

I considered the case at the time and, after Mr Gibson had agreed to an undertaking to have vehicles roller brake tested at least every eight weeks (and had said that he had already added it to his maintenance schedule), contented myself with a warning. The warning letter, issued on 31 October 2019, stressed that should further reports of non-compliance be received, I would take into account the fact that the operator had already received a warning when deciding what action to take against the licence.

2.2 2022 DVSA investigation

In April 2022 I received a report from DVSA vehicle examiner Austin Jones. Mr Jones had carried out a further investigation into the company in February 2022 and had again marked it unsatisfactory for the following principal reasons:

i) very few roller brake tests were being carried out, despite the undertaking that they would be done every eight weeks. Only one roller brake test record was available for each vehicle;

ii) MOT failure rate still high at 33%;

iii) safety inspection intervals were sometimes extended beyond the stated four weeks; safety inspection records were not properly completed: the condition of tyres was not being recorded, mileages not recorded, inspection dates were frequently amended, the declaration of roadworthiness was not signed.

iv) a vehicle had been involved in a collision on 3 January 2022 after its brakes had seized. The operator had failed to notify DVSA of this, as required by Section 20 of the 1981 Act;

v) until recently, maintenance had continued to be carried out by a mobile mechanic, with inadequate inspection facilities;

vi) driver defect reporting continued to be ineffective.

3. Public inquiry

Concerned by this report, I decided to call the operator and transport manager to a public inquiry. The call-up letter was sent on 18 May 2022, citing Section 17(1) and (3) of the 1981 Act.

The inquiry was held in Birmingham on 16 June 2022. Present were Robert Gibson (director and transport manager), Gareth Hale (director of EMH Truck & Bus Ltd, the new maintenance contractor) and DVSA vehicle examiner Austin Jones.

The operator had kindly submitted vehicle and drivers’ hours records in advance of the hearing. I looked at these and noted that:

i) vehicles had had only one further roller brake test, on 8 June 2022, since VE Jones’s visit on 11 February 2022;

ii) almost all safety inspection records contained numerous driver detectable defects: ie defects which should have been picked up by drivers on their daily walk-round check and rectified straight away, rather than remain undetected until the next safety inspection. For example, the most recent inspection sheet for vehicle BX56 AOV, dated 25 May 2022, reported an inoperable horn, an inoperable rear fog light and inoperable tail light. The previous inspection, dated 18 April 2022, had reported clutch and brake pedal rubbers worn, an oil level warning on the dash, wipers not clearing the windscreen, the rear fog light inoperable (this defect was not rectified and allowed to continue until the next inspection), the emergency door buzzer inoperable and a sensor fault on the tachograph unit. In each case, the immediately preceding driver defect reports had failed to identify any of these issues;

iii) the vast majority of tachograph charts provided showed that drivers were going straight to “drive” mode at the start of a shift: either they were carrying out walk-round checks while on “break” or (the more likely explanation given the evidence above) were not carrying out checks at all;

iv) the requested missing mileage and driver infringement reports (for the one digital tachograph vehicle) had not been provided.

VE Jones had also submitted, in advance of the inquiry, evidence of a further prohibition (S-marked, to denote a significant failure of maintenance) on 28 May 2022, for tyre tread worn away and cords exposed and for steering linkage dust cover severely deteriorated. The vehicles had had a safety inspection only three days before: these items should have been picked up and addressed at that inspection.

3.1 Evidence of Robert Gibson

Mr Gibson said that he had been having “a lot of hassle” with his previous maintenance provider who had proved to be unfit for the task: he accepted that he (Mr Gibson) had taken his eye off the ball as far as the roller brake test undertaking was concerned. Since February 2022 he had engaged EMH Truck & Bus Ltd who were much more satisfactory (apart from the blip of the S-marked prohibition, where an oil spill from the wheel hub might have covered up the worn tyre).

I asked Mr Gibson why he had not arranged roller brake tests immediately after VE Jones’s visit on 11 February 2022, rather than waiting until 8 June 2022. Mr Gibson accepted that he had no real answer to this. He had however been monitoring driver walk-round checks since February. I took him to his 2019 response when he had given the same assurance. Mr Gibson said he had carried out spot checks but had not documented them.

I asked why no missing mileage or driver infringement reports were available. It became apparent that Mr Gibson did not really know how to generate them. I accepted that the analogue charts showed that drivers were not driving huge mileages and were unlikely to be committing serious drivers’ hours breaches.

Mr Gibson stated that he had been unaware of the Section 20 duty to report collisions to DVSA.

Mr Gibson said that if his licence survived he would go on a TM CPC refresher course, would have roller brake tests carried out at the promised intervals and would arrange for an independent audit to be carried out after a suitable interval. He was determined to get everything right from now on. He hoped to be able to apply for an increased number of discs in the near future.

3.2 Financial standing

In a private session on financial standing I noted that the company had been unable to demonstrate the necessary financial standing for three vehicles (Redacted)

4. Findings

After having considered the evidence, I make the following findings:

i) the operator lacks the required financial standing to support three vehicles and has done so for many months (Section 17(1)(a) of the 1981 Act refers). (Redacted)

ii) the operator’s vehicle has received prohibitions (Section 17(1)(c) refers). A vehicle was given an immediate S-marked prohibition on 28 May 2022 for a badly worn tyre and a badly deteriorated steerage linkage dust cover. Given that the vehicle had been given a safety inspection only three days before, this does not fill me with confidence that the new maintenance contractor is much better than the old;

iii) the operator has failed to honour its promise that vehicles would be given safety inspections every four weeks (Section 17(3)(a) refers). VE Jones noted that there were several longer intervals between inspections and I myself noted that the interval between the inspections of BX56 AOV on 18 April and 25 May exceeded five weeks;

iv) the operator has failed to fulfil its undertaking to ensure that drivers report defects in writing (Section 17(3)(aa) refers) . Drivers appear to be simply ticking boxes and driving off, missing obvious defects with their vehicles. Despite Mr Gibson’s assurances in 2019 that he was on top of the problem, there has been no discernible improvement at all, despite the fact that evidence that drivers were skimping on checks has long been staring him in the face. Safety inspection reports continue to be littered with defects which are obviously driver detectable;

v) the operator has failed to fulfil its undertaking, given specifically as a result of the unsatisfactory maintenance investigation in 2019, to have roller brake tests carried out at least every eight weeks. VE Jones was shown only one such test result for each vehicle, and there has been only one further roller brake test (on 8 June) since his February visit. Generally, brakes were going wholly untested for long periods of time: it is of concern therefore to find that faulty brakes were the cause of the collision on 28 May 2022.

vi) the operator has failed to fulfil its undertaking to keep vehicles fit and serviceable. A 33% MOT failure rate, together with the long lists of defects at many of the periodic safety inspections, shows that vehicles are frequently being operated in an unroadworthy condition;

vii) the operator has failed to comply with the duty, set out in Section 20 of the 1981 Act, to report to DVSA any happening which could affect the safety of passengers or other road users. A collision with a car because of locking brakes fall squarely into this category.

5. Balancing act

I carried out a balancing act. On the negative side were the issues in the DVSA reports, summarised in the findings above, and the wholly inadequate action taken by the operator since the DVSA visit to tackle issues such as ineffective (or non-existent) driver walk round checks and the lack of roller brake testing. On the positive side was the move to a new maintenance provider which has more satisfactory premises than the mobile mechanic used previously and the assurances for better performance in the future. But these assurances are necessarily devalued by the fact that DVSA received identical assurances in 2019 which turned out to be worthless.

5.1 Priority Freight and Bryan Haulage questions

I considered the Priority Freight question of how likely it is that the operator will comply in future. Given that Mr Gibson assured DVSA in 2019 that he would be spot checking drivers to ensure that they carried out walk-round checks effectively, that he would be looking for more suitable maintenance premises (not done until 2022), and his undertaking to me that he would ensure that roller brake tests were carried out every eight weeks – and that these assurances and undertaking were not in the event fulfilled, I conclude that the answer is very unlikely. The likelihood is not improved by the current parlous state of the operator’s finances.

A negative answer to the Priority Freight question tends to suggest an affirmative answer to the Bryan Haulage question of whether the operator deserves to go out of business. I conclude that it does. Mr Gibson has been given every chance to improve compliance but the picture even today is one of chaotic and ineffective management, with unroadworthy vehicles being driven by drivers too lazy to carry out proper checks of their vehicles. This is not an operator which should continue in business.

5.2 Transport manager

I have also considered the matter of the good repute of Mr Gibson as transport manager (Section 17(1)(a) and (b) and Schedule 3 refer). I conclude that the degree of neglect which has been set out exhaustively above means that the loss of his good repute is inevitable. He has failed to carry out the duties and responsibilities of a transport manager to anything like the required standard.

6. Decisions

6.1 Revocation of the licence

I hereby revoke the licence under Section 17(1)(a) and (b) and 17(3)(a), (aa) and (c) of the 1981 Act, with effect from 0001 hours on 23 July 2022.

6.2 Disqualification of the company and its director

For the reasons outlined above, and having performed the same balancing act, I conclude that Homers Travel Ltd and its director Robert Gibson should be disqualified under Section 28 of the Transport Act 1985 from holding or obtaining an operator’s licence in the future. In deciding upon the length of the disqualification, I have taken account of paragraph 103 of the Senior Traffic Commissioner’s Statutory Guidance Document 10. This posits a starting point of between one and three years for a first public inquiry (which this is). I consider that a 12 month disqualification will suffice to bring home to Mr Gibson the message that undertakings and assurances given to the DVSA and the traffic commissioner cannot be treated with the insouciance and neglect which has been the case here. It will also give him time to undertake much needed refresher training and to assemble capital adequate to the task of supporting any future licence he or the company may apply for.

6.3 Disqualification as transport manager

Having removed Mr Gibson’s good repute as transport manager I am obliged to disqualify him, under Schedule 3 of the 1981 Act, from acting as a transport manager on any operator licence. I am doing so for the same period of 12 months as set out for the operator and director above, for the same reasons.

Nicholas Denton

Deputy Traffic Commissioner

16 June 2022