Decision

Written decision for William James Burnett t/a Bearwood Coaches (PD0000696)

Published 22 October 2020

In the West Midlands Traffic Area.

Redacted decision of the Traffic Commissioner for the West Midlands.

1. Decision

The licence held by William James Burnett t/a Bearwood Coaches is revoked with effect from 0001 hours on 25 November 2019. The revocation is pursuant to Sections 17(1)(a) and (b) and 17(3)(aa) of the Public Passenger Vehicles Act 1981 (“the 1981 Act”).

The good repute of transport manager William James Burnett is lost. He is accordingly disqualified, pursuant to Schedule 3 of the 1981 Act, from acting as a transport manager under any operator’s licence. The disqualification is for an indefinite period of time, although Mr Burnett may re-establish his repute by taking and passing the transport manager CPC examination.

2. Background

William James Burnett t/a Bearwood Coaches holds a standard national PSV operator’s licence PD0000696 authorising 60 vehicles. Mr Burnett is also the nominated transport manager on the licence.

2.1 Public Inquiry

Mr Burnett was called to a public inquiry on 19 July 2018 following an unsatisfactory maintenance investigation by DVSA and to consider an application to increase from 40 to 60 vehicles.

At the end of that inquiry I held my decision on the increase in abeyance pending receipt from Mr Burnett of an action plan setting out how he intended to eliminate the shortcomings identified in the inquiry: namely, lack of formal driver defect reporting, vehicles going beyond their eight week inspection frequency, a driver driving without entitlement.

Mr Burnett’s resulting letter, dated 23 July 2018, stated that:

1. his assistant Mr Khan would check driver entitlement every three months and make print-outs to evidence such checks;

2. he (Mr Burnett) would ensure that the eight-weekly inspection interval was adhered to more rigorously and that the inspections incorporated a brake test print-out three times a year. All safety inspection records would be more precise and thorough;

3. he had decided not to proceed with the electronic driver defect reporting that we had discussed at the inquiry as “not all drivers are proficient in the use of smart technology”. Instead, drivers would perform daily walkround checks with the help of workshop staff and report any defects to the office who would record the defects in a book. Repairs would be undertaken by the workshop and recorded in a second book.

Although I doubted that Mr Burnett’s drivers were really incapable of using a smart phone app to record vehicle defects, and feared that the use of two books might prove rather bureaucratic and cumbersome, I accepted the plan and granted the increase to 60 vehicles. I said that I would request DVSA to check later in the year whether the plan was being put into effect.

2.2 DVSA desk-based assessment

DVSA duly carried out a desk-based assessment of the operator in early 2019. This noted a number of elements of concern, including the fact that Mr Burnett was using HGV safety inspection sheets for his PSVs; that there was no evidence of any form of metered brake tests; that the safety inspection sheets did not contain information about tyre tread depths or pressure; that five MOT failures over the period November 2017 to November 2018 indicated poor MOT preparation and maintenance standards; that there was no evidence of checking of driving entitlement every three months.

2.3 Further maintenance investigation

In the light of this assessment, DVSA vehicle examiner Austin Jones carried out a second maintenance investigation on dates in April and May 2019. He reported that:

1. the defects reported by drivers and recorded in the “office book” did not tally with the defects recorded as rectified in the “workshop book”;

2. vehicle maintenance records were still unsatisfactory in that the 8 week inspection frequency was not always being adhered to, numerous records were not signed off by a responsible person, tyre tread depths were still not being recorded, there was no record of any brake checks, numerous records had dates crossed out or amended by tippex, and numerous records had only been made available on his second visit;

3. there was a high MOT failure rate of 38%. The operator had not heeded VE Jones’s previous advice (given during the 2018 investigation) to investigate reasons for MOT failures;

4. in summary, shortcomings from the previous 2018 investigation had not been remedied and the operator had failed to heed the advice and guidance given by VE Jones at that time.

3. Public inquiry

Concerned by these reports, I decided to call Mr Burnett to a public inquiry. The call-up letter was sent on 5 August 2019 citing Sections 14ZA and 17(1) and (3) of the Public Passenger Vehicles Act 1981. Mr Burnett was also called in his capacity as transport manager, to consider his good repute.

The inquiry took place in Birmingham on 18 September 2019. Present were William Burnett, represented by Paul Carless Sr, and Imran Khan, Mr Burnett’s general manager. DVSA vehicle examiner Austin Jones also attended.

On the morning of the inquiry the operator provided me with the requested maintenance documentation relating to six specific vehicles. I noted that recent inspection sheets now related to PSVs rather than HGVs but none of them recorded tyre tread depths or brake tests. The most recent inspection of KY58 WNT had taken place 12 weeks previously, on 24 June 2019. There were other gaps of more than eight weeks.

For the operator, Mr Carless accepted that Mr Burnett had not done everything he said he would do: for instance safety inspections had sometimes gone beyond the eight week frequency and the promised roller brake tests had not been carried out. But Mr Burnett firmly believed he operated to very high standards: he was highly regarded by Birmingham City Council, his main client. Imran Khan, his assistant, also possessed the transport manager CPC qualification.

DVSA vehicle examiner Austin Jones agreed that the operator’s prohibition rate was below the national average. Vehicles were certainly being maintained. He had examined six vehicles as part of his investigation and had issued some advisory notices but no prohibitions. However, record keeping was very poor. He had given Mr Burnett a lot of advice about systems during his 2018 investigation but Mr Burnett had done nothing to implement it.

William Burnett said that he had been operating for 30 years without any convictions. He had a very low turnover of drivers. He operated school runs for Birmingham City Council and was the best operator in the sector. Birmingham City Council would confirm that. He had a low prohibition rate although accepted that the MOT pass rate was poor. Most vehicle maintenance was done between the 8-week inspections rather than at them. He accepted that he had not carried out some of the elements of the action plan he had sent me in July 2018 – notably concerning inspection frequency, the recording of tyre tread depths (Mr Burnett said that if a tyre was getting low on tread it was simply changed), and roller brake tests. Driver licences had been checked by Mr Khan online every three months, (I noted however that no record of these checks appeared to have been kept, despite Mr Burnett’s promise in July 2018 that printouts of the checks would be made).

Mr Burnett said that he did not consider that he would benefit from any transport manager CPC refresher training as most of it would focus on coaches and buses which he did not operate rather than minibuses which he did. He could not envisage handing over transport manager responsibilities to anyone else: he would rather close the business.

At this point I adjourned the inquiry in order to receive up to date evidence of financial standing which had not been provided to the inquiry, and to take a written decision. I noted that in coming to that decision I would have to ask myself the question: “can I trust this operator to comply?” This was not a question I could today answer with a simple yes: Mr Burnett’s comprehensive failure to abide by the assurances he had given me in July 2018 was one reason for that. Another was Mr Burnett’s attitude at the inquiry: he was clearly convinced that he ran the best operation in the business despite two unsatisfactory maintenance investigations and two public inquiries. His mind appeared entirely closed to the requirement to keep proper records and manage a business to modern compliance standards. He continued to reject well-meant advice from a variety of sources. I said it might help the operator’s case if it could provide something from Birmingham City Council confirming that they held Mr Burnett’s operation in the highest regard.

Before the inquiry closed, Mr Carless asked if I would receive written representations. I said I would do so: in the event these came directly from Mr Burnett rather than Mr Carless whom Mr Burnett had meanwhile dismissed.

3.1 Further representations

I received two letters from Mr Burnett. In the first, dated 19 September 2019, he apologised for coming over as obstinate during the inquiry; took responsibility for the failure to carry out the assurances given following the 2018 inquiry; expressed a willingness to attend a transport manager CPC refresher course; and said that Birmingham City Council had agreed to provide references within the next 24 hours.

In the second letter, undated but received in my office on 27 September, Mr Burnett said that Birmingham City Council had not provided the references he had promised, owing to other priorities. With regard to the incomplete finances, Mr Burnett stated that full up-to-date evidence had been given to Mr Carless four weeks in advance of the inquiry. (We had already established at the inquiry that this had not reached my office. However, no further evidence was enclosed with Mr Burnett’s letter.)

Mr Burnett further stated that an itemised defect sheet would henceforth be used by drivers during their walkround check. A mechanic had been appointed to undertake maintenance and inspection recording. Driver licences were being checked every three months in line with previous assurances.

4. Consideration

Even today, I still do not have a full picture of the operator’s financial standing. The operator has provided bank statements for an xxxxx account showing average available funds of approximately £xxxxxx over the three month period 1 May to 30 July 2019. A further statement from a xxxxx account shows that £xxxxx was available over the 20 day period between 8 and 28 August 2019. The operator needs to show financial standing of £270,550 for the 60 vehicles it is authorised for. Because the two bank accounts show average balances over different periods, not overlapping at all, and neither balance sufficient to demonstrate financial standing, it has failed to do this. I note that this is entirely in keeping with the operator’s disorganised approach to any form of paperwork. I am therefore unable to conclude that the operator has the required financial standing (Section 17(1)(a) of the 1981 Act refers).

4.1 Balancing exercise

On the positive side of the balance is the operator’s relatively low prohibition rate of 11% over the last two years (compared to a national average for PSVs of about 16%). There is also the fact that Mr Burnett clearly does maintain his vehicles, although the 38% failure rate at MOT is a concern. On the negative side however is the fact that record keeping is chaotic to non-existent; that vehicles are missing their eight-weekly checks which are inadequately documented when they do take place; and that these shortcoming were pointed out to Mr Burnett in early 2018 but that he has ignored all advice on how to address them. Further, he has failed to carry out most of the specific assurances he gave me in the action plan of July 2018: these assurances and my belief that I could rely on him to carry them out were the only reason I agreed to the increase in the licence authority from 40 vehicles to 60. The fact that his assurances proved worthless necessarily devalues the assurances he is offering this time round. On balance, I conclude that Mr Burnett is not an operator whom I can any longer trust to comply with the requirements relating to frequency of record inspection and proper keeping of maintenance records and records of driver entitlement checks.

5. Decisions

5.1 Transport manager repute

No one who witnessed his performance at the public inquiry could conclude other than that Mr Burnett is entirely dismissive of the views of others and utterly incapable of delegating to anyone else (Mr Khan for instance). Indeed, he frankly accepted as much. He firmly believes his own way of doing things is best and I do not believe he is capable of change or of acting according to the standards required of a modern-day transport manager. I recognise that Mr Burnett’s letters since the inquiry have struck a different tone, but I have concluded that his true attitude was on display at the inquiry. He wrote a similarly contrite letter after the 2018 public inquiry, but it proved to be empty words.

Owing to his past history of broken promises and failure to heed expert advice constructively given, I no longer have any confidence in the new assurances that he has made. I have reluctantly therefore come to the conclusion that Mr Burnett is not of good repute. I must therefore disqualify him under Schedule 3 of the 1981 Act from acting as a transport manager. Mr Burnett’s shortcomings are not such as the mere passage of time will suffice to rectify: I am thus disqualifying him for an indefinite period, although he may regain his repute by retaking and passing the transport manager CPC examination.

5.2 Operator licence

Because I have concluded that Mr Burnett lacks financial standing and is not of good repute, revocation of the licence is mandatory under Section 17(1)(a) and (b). I did consider whether to allow a period of grace in which to appoint a new transport manager (and finally present the right financial evidence) but I concluded that in practice there was no point as Mr Burnett is clearly never going to submit to the authority of another transport manager.

I am revoking the licence with effect from 25 November 2019, to give the operator time to wind down his business.

Nicholas Denton

Traffic Commissioner

16 October 2019