Decision

Decision for Nigel Wynn Brown T/A Roy Brown’s Coaches

Published 15 September 2021

1. DECISION OF THE TRAFFIC COMMISSIONER FOR WALES

1.1 PUBLIC INQUIRY HELD AT PONTYPRIDD ON 8 JUNE 2021

Nigel Wynn Brown T/A Roy Brown’s Coaches PG0007419

&

Transport Manager Nigel Wynn Brown

2. Background

Nigel Wynn Brown, trading as Roy Brown’s Coaches (“the operator”) holds a sole trader Public Service Vehicle Standard National Operator’s Licence. The licence was granted in 2000 and originally authorised operation of 28 vehicles. Nigel Wynn Brown is also the designated transport manager on the licence.

At a Public Inquiry on 14 September 2007 the traffic commissioner reduced the authorisation on the licence to 21 vehicles having found breaches of the undertakings to keep vehicles fit and serviceable, false statements in not carrying out six weekly inspections and failures in driver defect reporting. The traffic commissioner imposed a number of additional undertakings at that Inquiry.

The operator was again called to Public Inquiry on 17 May 2017 when the traffic commissioner further curtailed the authorisation down to 15 vehicles, having found breaches of the undertakings to keep vehicles fit and serviceable, observe the rules on tachographs and drivers’ hours, operate an effective driver defect reporting system and keep proper records. He also found that the operator had made false statements in not having six weekly inspections, that prohibitions had been issued, and that the operator had failed to comply with the undertakings imposed at the earlier Public Inquiry. The traffic commissioner again imposed undertakings on the licence, found that Mr Brown’s reputation as an operator was seriously tarnished and gave him a formal and final warning as to his future conduct. Mr Brown’s reputation as a transport manager was also seriously tarnished and he was given a formal and final warning as to his future conduct in that capacity.

The DVSA received a report that on 8 October 2020 one of the operator’s vehicles was transporting school children with a flat tyre and broken exhaust. In response, the DVSA conducted an investigation, the results of which were unsatisfactory and highlighted the following issues:

i. Inadequate and unsatisfactory operating centre with vehicles parked at the entrance on the main road and another parked in a layby;

ii. Unsatisfactory maintenance and inspection records;

iii. Unsatisfactory driver defect reporting;

iv. Unsatisfactory inspection facilities and maintenance arrangements;

v. Unsatisfactory prohibition assessment with the operator’s prohibition rate at 28.57% - above the national average.

There was also evidence that the undertakings imposed by the traffic commissioner and accepted by the operator at the Public Inquiry in 2017, were not being adhered to. These undertakings were as follows:

i. Safety inspections to be at 5 weekly intervals (6 for minibuses), PMI reports to be fully and properly completed on up-to-date inspection sheets and retained for 2 years;

ii. There will be a nil defect driver defect reporting system. Defect reports will show rectification and will be retained for at least 2 years;

iii. The operator will undertake a random audit of at least 3 drivers per week to ensure the drivers are undertaking their walk round checks correctly. The findings will be recorded and made available to staff from DVSA or the OTC on request;

iv. All vehicles will have rolling road brake tests on at least quarterly intervals. Results to be recorded and retained;

v. A transport consultant will be engaged to oversee the systems for maintaining vehicles, records and drivers’ hours and Working Time Directive compliance for at least 2 full days per month;

vi. An audit report on the maintenance, drivers’ hours, etc regime will be conducted after 6 months from this date and a copy of the report and schedule of actions to implement recommendations will be submitted to DVSA and the Office of the Traffic Commissioner by 31st December 2017. Reports then to be submitted annually until ordered by the Traffic Commissioner.

Mr Brown, in his capacity both as sole trader operator and as transport manager was called to Public Inquiry by call up letters issued on 4 May 2021 to explore these alleged failings.

3. The Public Inquiry

Mr Brown, as sole trader operator and transport manager, attended the Public Inquiry in Pontypridd on 8 June 2021. He was represented by Mrs Donna Howells, Transport Consultant. Mr Forsey, from the Fleet Management Department of Powys County Council attended to observe proceedings. In advance of the hearing, the operator provided evidence in the form of inspection records and driver daily defect reports for the last 6 months, forward planning maintenance record and other miscellaneous documents including email correspondence between Mrs Howells and Paul Wilby-Davies (transport consultant) regarding missing audit reports. I also received written representations in advance of the hearing and, at the conclusion of the hearing, I heard further representations from Mrs Howells.

4. Evidence

Evidence was heard from VE Rees and Mr Brown.

VE Rees’ evidence was included in the Public Inquiry Brief. It comprised two separate reports – one relating to his maintenance investigation and the other to his investigation into the circumstances of the complaint. He adopted those reports for the purpose of the Inquiry. Mrs Howells confirmed that VE Rees’ evidence was not contested, save for in one very minor respect where VE Rees had referred to the frequency of transport manager visits required by the undertaking as 2 days per week, rather than per month. VE Rees accepted that had been an error.

Mr Nigel Wynn Brown accepted the shortcomings that had been identified by VE Rees in his maintenance investigation report and admitted that he could identify a lot of things he had slipped up on.

In response to questioning about why he had failed to comply with the undertakings that he had personally agreed to at the Public Inquiry in 2017, for example, the undertaking to undertake a random audit of 3 drivers per week to ensure the drivers are undertaking their walkaround checks correctly, he maintained that he had done so as best he could but there had been staffing problems which meant it wasn’t fully complied with. This same undertaking was breached prior to the 2017 Inquiry and Mr Brown agreed that he knew the implications of failing to adhere and that it was not for him to decide whether to comply with undertakings. He accepted that he should have requested a variation of the undertaking if it was no longer possible to comply with an undertaking for any reason. He had not done so.

Of the six undertakings imposed at the 2017 Inquiry, there was evidence to suggest that the only one which had been fully complied with was that relating to rolling brake tests, which I accepted.

In relation to the audit undertaking, Mr Brown’s evidence was that he had relied on a Mr Owens to submit these to my office when they were due and he accepted that this had not been done. Upon further questioning, he accepted that as operator and transport manager it was down to him to ensure that the audits were done and he was responsible for the failure to comply.

Similarly, when asked why he had failed to comply with the undertaking to engage a transport consultant for at least 2 full days per month, Mr Brown accepted that it had not been complied with as the consultant only came one day per month but initially suggested that this was because the transport consultant had told him one day would be sufficient. On further questioning, he acknowledged that it was his responsibility as operator and transport manager to ensure that the undertakings were fully complied with.

Mr Brown stated in evidence that the transport consultant did all the wall planners, went through the PMIs, carried out spot checks and pointed out what needed to be done. When I asked what Mr Brown did personally to comply with his duties as transport manager his response was that he consulted with Mr Wilby-Davies and they tried to work together to make sure everything was safe. He repeatedly spoke about needing someone “to take responsibility” and his evidence was that consultants he had used had not been up to standard, which he maintained was why the compliance problems had occurred. Upon questioning about his own role as transport manager and whether he had failed in his duty continuously and effectively to manage all the transport activities, he accepted that he had fallen down in that regard. His evidence was that this was because he had been “at the coal face”, repairing his vehicles, trying to juggle different responsibilities and wearing several hats.

There was evidence that some changes had been made since VE Rees’ visit. Vehicles were now undergoing pre MOT testing and the operator introduced evidence of its MOT initial and final fail rates since the DVSA visit, which had improved. At the time of VE Rees’ visit in December 2020 the final fail rate was 36%, which was four times higher than the national average. Between December 2020 and the date of the Inquiry it had improved but was still double the national average. Mr Brown put that down to the fact that it was an older fleet.

Mr Brown explained that he employs 10 to 15 people and provides school contract services for Powys County Council along with some local private hire work. He is contracted to provide 10 or 12 school services, carrying several hundred children each day.

I asked Mrs Howells to address me on the implications for the operator and Mr Brown as transport manager of the various regulatory sanctions that may be imposed which were set out in both call in letters, including the impact of revocation and disqualification given the serious nature of the case. I was told that Mr Brown had no other source of income and that revocation would have a major impact as the business would need to close.

I invited Mr Forsey of Powys County Council to address me and to indicate what effect revocation of Mr Brown’s licence might have for the authority. He explained that he had also attended the Public Inquiry in 2017 and was very disappointed to be back at another Inquiry now. As a buyer of services from the operator, he was concerned. He had made contingency plans to cover the routes operated by Mr Brown, should my decision be to revoke the licence.

5. Findings of fact

It is clear, and accepted by the parties, that vehicles were not being properly inspected at five or six weekly intervals. VE Rees’ report identified an instance of a 19 week interval between inspections, with no evidence of the vehicle being VOR and the vehicle having travelled a distance of over 3000km between May and September 2019. Inspection records were not properly completed with percentages entered in the brake performance section but nothing to identify how these were achieved, incorrect mileages entered, odometer readings missing, dates missing and tyre depth measurements not completed. Accordingly, I find that section 17(3)(a) of the Act is made out.

The evidence is clear and accepted by Mr Brown that he failed to comply with five of the six undertakings imposed by the traffic commissioner at the Public Inquiry in 2017 (undertakings i) ii), iii), v) and vi) at paragraph 5 above). He also failed to comply with the undertakings on the licence to operate an effective driver defect reporting system and to keep proper records and I find that section 17(3)(aa) of the Act is made out.

It is undisputed that, since the Public Inquiry in 2017, the operator has been issued with two mechanical prohibitions, one immediate prohibition for a fuel leak and a delayed prohibition for brake air reservoir insecure. At the time of the DVSA inspection, the operator’s mechanical prohibition rate was significantly higher than the national average, at 28.57% (cf 16.88%). Accordingly, I find that section 17(3)(c) of the Act is made out.

The operator licensing regime is based on trust. In NT/2013/82 Arnold Transport & Sons Ltd v DOENI the Upper Tribunal said:

“The Tribunal has stated on many occasions that operator’s licensing is based on trust. Since it is impossible to police every operator and every vehicle at all times the Department in Northern Ireland (and Traffic Commissioners in GB), must feel able to trust operators to comply with all relevant parts of the operator’s licensing regime. In addition other operators must be able to trust their competitors to comply, otherwise they will no longer compete on a level playing field…cutting corners all too easily leads to compromising safe operation. It is important that operators understand that if their actions cast doubt on whether they can be trusted to comply with the regulatory regime they are likely to be called to a Public Inquiry at which their fitness to hold an operator’s licence will be called into question. It will become clear, in due course, that fitness to hold an operator’s licence is an essential element of good repute.”

In view of my findings regarding Mr Brown’s failure to comply with undertakings imposed by a traffic commissioner at the Public Inquiry in 2017 I am entitled to question his fitness to hold a licence, which is an essential element of good repute. The Upper Tribunal has held that a persistent failure to comply with undertakings, especially following a warning, may provide compelling reasons to conclude that there has been a loss of repute (2011/036 LWB Ltd). Mr Brown was called to Public Inquiry in 2017 following his failure to comply with undertakings, including those imposed by a traffic commissioner at an earlier Inquiry. Those same undertakings, and additional ones, were imposed again at Inquiry in 2017 when Mr Brown’s repute as operator and transport manager was found to be seriously tarnished and he was given a formal and final warning as to his future conduct. He has failed to heed that warning and, once again, failed to comply with undertakings imposed by a traffic commissioner. He has, yet again, breached the trust placed in him as an operator which is fundamental to the operator licensing system and I find that he has lost his repute as an operator and no longer satisfies the requirements of s14ZA(2) of the Act.

Mr Brown, in his capacity as transport manager, accepted that he had fallen down in his duty effectively and continuously to manage all the transport activities of the business, as required by the legislation. Specifically, I find that he failed to exercise effective quality controls over the PMI sheets, the DDR system was poor and the undertakings on the licence were not complied with. As transport manager, he was given a clear warning in 2017 when his reputation was found to be seriously tarnished, which he has failed to heed and I find that he has lost his repute as transport manager and no longer satisfies the requirements of section 14ZA(3) of the Act.

6. Considerations and Decisions

I have weighed up these findings against the positive features identified by Mrs Howells in her submissions. Of the prohibitions that have been issued, none of these were “S” marked and, since December 2020, there has been an improvement in the MOT fail rate. I note that this is no longer four times the national average, but now two times the national average. I accept this is an improvement but it still gives me great cause for concern as these results can be a barometer of the way in which an operator’s vehicles are being maintained. I noted that the operator was co-operative with the DVSA investigation.

In conducting this balancing exercise, I have also taken into account the effect of any regulatory action on Powys County Council and have had regard to Mr Forsey’s representations about that.

In considering the Priority Freight (2009/225) question, “how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime?” I had regard to the failures I had found proved, particularly Mr Brown’s failure to heed earlier warnings given at two previous Public Inquiries in relation to similar failings. I considered it highly unlikely that Mr Brown would comply in the future. I also found that his failures had put road safety at risk, which is particularly concerning given that he is carrying school children, and given him an unfair commercial advantage over other operators.

In considering the Bryan Haulage (no.2) (2002/217) question, “is the conduct such that the operator ought to be put out of business? in reaching my decision, I also had regard to the Senior Traffic Commissioner’s Statutory Document 10, Annex 4. The operator had obtained a commercial advantage over other operators and compromised road safety by failing to fulfil basic undertakings made on applying for the licence and, significantly, licence undertakings given to a traffic commissioner at Public Inquiry, making false statements in not having 6 weekly inspections and operating vehicles which were issued with prohibitions. This was, therefore, a bad case in which there was a previous public inquiry history for virtually identical operator licence failures. The starting point for regulatory action was severe. I also take the view that other operators who carry out their businesses in a compliant manner would be shocked if another operator were permitted to operate vehicles against this background. In the circumstances of this case, it is appropriate and proportionate to answer the Bryan Haulage question in the affirmative. Having found in terms of section 17(1)(a) of the Act that Mr Brown has lost his repute, I am required to revoke Mr Brown’s operator’s licence. I do so with effect from 23:45 hours on 16 July 2021 to allow for an orderly running down and to allow sufficient time for Powys County Council to make alternative arrangements for the school transport services currently operated by the operator.

Having concluded that Mr Brown has lost his repute as transport manager, as he no longer satisfies the requirements of section 14ZA(3) of the Act, revocation of the licence is also mandatory under section 27(1)(b) of the Act.

For the reasons outlined in paragraphs 26 to 29 above, and having performed the same balancing act described there, I conclude that Mr Brown deserves to be disqualified under Section 28 from holding a licence in the future. In deciding upon the length of the disqualification, I have taken account of paragraph 100 of the Senior Traffic Commissioner’s Statutory Document 10. This suggests a starting point of between one and three years for a first public inquiry. This is Mr Brown’s third public inquiry. Similar concerns were raised at all three and Mr Brown failed to heed the warning of the traffic commissioner in 2017 who was prepared to allow Mr Brown one final opportunity to demonstrate that he could run a fully compliant operator’s licence. I found this to be a serious case, involving a breach of trust which goes to the heart of the licencing regime.

Taking account of all the circumstances, I consider disqualification to be necessary to meet the objectives of the operator licensing regime and have decided to disqualify Mr Brown from holding an operator’s licence for a period of five years. A period of five years is proportionate, appropriate, and in line with the Senior Traffic Commissioner’s guidelines.

Having concluded that Mr Brown’s good repute as transport manager is lost I must also disqualify him under paragraph 7B of Schedule 3 to the 1995 Act from being a transport manager on any licence. For the same reasons which have led me to conclude that a five year disqualification from holding a licence is appropriate, I am disqualifying him from acting as a transport manager for the period of five years.

As a rehabilitation measure, I also set the requirement for Mr Brown to re-sit the Transport Manager CPC course. Should Mr Brown wish to be appointed as a transport manager in the future, he will require to appear before a traffic commissioner to determine whether his repute should be restored.

Victoria Davies

Traffic Commissioner for Wales

1st July 2021