Decision

Decision for Arleen Coach Hire & Services Ltd and TM Justin Spiller

Published 17 September 2024

0.1 WESTERN TRAFFIC AREA

1. Decision of the Traffic Commissioner

2. Public Inquiry in Bristol, 6 August 2024

3. ARLEEN COACH HIRE & SERVICES LTD

4. JUSTIN SPILLER – TRANSPORT MANAGER

5. BACKGROUND

Arleen Coach Hire & Services Ltd is the holder of a standard international public service vehicle operator’s licence authorising the use of twenty-four vehicles from an operating centre in Peasedown St. John, near Bath, and a smaller satellite site in Glastonbury. This licence started in April 1992. The directors are MK Spiller, Alan Spiller, Carol Spiller, Justin Spiller and Kristian Spiller. The transport manager is Justin Spiller.

One of the company’s vehicles overturned when transporting school staff and students on 28 November 2022. That collision was the subject of a police criminal investigation that ended in three directors and a staff member each being acquitted of a charge of using a vehicle in a dangerous condition. It is not the subject of this public inquiry, but it did bring the operator to the attention of DVSA.

The operator was subject to a DVSA traffic compliance investigation in January 2023. Traffic Examiner Richard Francis found the following shortcomings:

• No induction document for new starters
• No full records of CRB checks, last licence and CPC check carried out in April 2022
• Some driver cards downloaded at periods in excess of 28 days
• No evidence of disciplinary procedures
• No evidence of infringement reporting but TruTac used for analysis
• Some drivers not providing manual entries for rest periods and one driver not taking enough weekly rest

The examiner did not receive a response from the operator.

DVSA Vehicle Examiner Mike Lailey carried out a maintenance investigation on 10 July 2023. Mr Lailey identified these concerns:

• A prohibition was issued during the fleet inspection
• An operating centre in Glastonbury was being used without authority
• No evidence of control from the transport manager
• Poor recording of defects on inspection sheets
• Driver reportable defects on inspection sheets
• The inspection facility provides no room to work on a vehicle’s nearside due to proximity of a wall
• Poor test history

The operator responded to this investigation in a letter with photographic and other supporting evidence.

These reported shortcomings 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 Act, that any statement of intent recorded in the licence has not been fulfilled, specifically:

• that vehicles would be inspected at 4-week intervals;

• that vehicles would normally be kept at the operating centre in Peasedown St. John.

Under Section 17(3)(aa) of the 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(3)(c) of the Act, that vehicles have been issued with prohibitions.

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

6. THE PUBLIC INQUIRY

Justin Spiller attended the inquiry represented by Andrew Banks, Stone King solicitors. Also in attendance was proposed new transport manager Colin Inman and transport consultant John Burch. Compliance documents were provided in advance and DVSA provided an up-to-date pre-public inquiry analysis. Justin Spiller had provided a witness statement. Proceedings were recorded and I do not recount the full evidence here.

Mr Banks told me that Vehicle Examiner Lailey’s concerns with the pre-public inquiry maintenance documents were down to a misunderstanding of the documents requested in the standard directions. Only PMIs and defect reports had been supplied to the Examiner when there were two other relevant sets of records. The operator had a maintenance book for each vehicle and an electronic system. Those hadn’t been requested and held the answers to many of the questions.

6.1 The evidence of DVSA Vehicle Examiner Michael Lailey

When Mr Lailey had visited the operator in 2023, he had seen the vehicle books. He was told about the electronic system later. He had read the call-up as the operator had so had not chased the other documentation.

There had been two MOT failures since the visit in July 2023 for headlamp aim. Mr Banks asked about a prohibition that had been issued in May 2022 for an insecure brake valve. That vehicle services Frome College where there was a speed bump. Mr Banks asked whether the speed bump could be the cause, Mr Lailey was unable to comment.

I asked about the reference in the maintenance report to a lack of qualifications. At the visit, Kristian Spiller had referred to having a two-day irtec course remotely and then a follow-up physical check. Mr Lailey told me that was unacceptable in his eyes and a BTEC or equivalent was necessary. He had since been provided with Mr Spiller’s “learning plan” from 2002 which seemed to refer to NVQ level 2 Vehicle Maintenance and Repair which would be adequate.

I commented that I was surprised that Kristian Spiller was not in attendance when he had responsibility for maintenance and this was a maintenance-related inquiry. Mr Banks told me that they felt Justin Spiller would be the correct representation as managing director and director as the focus was management systems.

6.2 The evidence of Justin Spiller, director and transport manager

Mr Spiller adopted his written evidence. He described the record kept for maintenance. There were the PMIs. If work was needed, it was recorded on the Distinctive Systems VMS and in the relevant book. He hadn’t supplied them for the pre-inquiry update as they had not been asked for. Review of the later apparent shortcomings saw a number of those addressed with data on the electronic system. In relation to P7ARL, a defect had been reported verbally and driver signed the DDR as Nil defect assuming it would be rectified. The vehicle had actually been repaired and the work recorded on VMS. On RIL7643, the VOR form did not record mileage at the time but they would now.

Mr Lailey had identified an issue with brake performance on W652FUM whereby the parking brake achieved 2200 – 2300 kgs force effort in January but subsequent readings were just 1600 – 1700 kgs. Mr Spiller told me that the difference in performance might be down to ambient temperature and fuel weight. I did not accept that explanation. Mr Spiller then told me that he was not an engineer so could not comment further. I asked why the fleet engineer Kristian Spiller was not present. I received no answer. Mr Lailey confirmed as an expert witness that the amount of fuel in the tank would have no material effect on the brake performance.

The same vehicle had received a recent prohibition for a defective brake hose. I was told that Kristian Spiller had not followed an appropriate inspection regime and had been disciplined.

Mr Spiller recognised the need for more qualified maintenance staff. They had interviewed a couple of people but that had gone nowhere. The next step was to advertise on Indeed.

Mr Lailey had noted a tyre date code recorded on PMI as 0526 [which means it was manufactured in week 5, 2026]. Mr Spiller explained that the last four digits were taken from a manufacturer’s code and the correct code was 5122. I asked why such a fundamental error had not been noticed on a quality check, the PMI having been stamped as such. It just hadn’t been noticed. The QC role had been delegated to Colin Inman, the legal compliance officer.

It was hoped to put Colin on as transport manager. Mr Spiller had done an operator refresher course with Lloyd Morgan and he and Mr Inman had attended an OLAT with Mr Burch. TE Francis had offered attendance on a new operator seminar but that hadn’t happened.

Mr Spiller told me that he struggled with his workload and wanted to step back in favour of Mr Inman. Mr Inman would have hire and fire authority. I asked how that might work if the transport manager wanted to fire the fleet engineer, Kristian Spiller, a family member and statutory director. Mr Spiller told me that the other directors would hold each individual director accountable.

I referred to the proposal to nominate Mr Inman as transport manager when he did not hold the requisite qualification, instead seeking to rely upon his acquired rights certificate from 2012. I referred Mr Banks to recital 11 of EU Regulation 1071/2009 which referred to the need for “a high level of professional qualification” and concluded “It should be possible for Member States to exempt from the examinations persons who can provide proof of continuous experience in managing transport activities”. Mr Inman had never been a nominated transport manager so there was no continuity and I made it clear I was unlikely to accept Mr Inman based on the acquired rights alone.

I referred Mr Spiller to a warning letter he had signed putting his brother and co-director Kristian on notice that he may be dismissed if his performance did not improve. I questioned how that would work in reality, with both being directors of the company. Justin told me that Kristian would have to take a back seat for the wider good.

In relation to recruiting a fleet engineer, they had just recruited a nominated tester for the MOT garage, which was part of the wider business along with a fuel station. Justin Spiller was responsible for all parts of the business. Workload had prevented him advertising the fleet engineer role sooner. It was a very busy time of year for the business. They expected to offer a salary of around £50,000 which I noted was realistic.

I asked about the plan for bringing together the four strands of the management systems, the paper PMIs, vehicle maintenance books, VMS and driver defect reporting. The plan was to merge the lot by the end of August. They had to buy iPads for the workshop staff. Driver defect reporting had already transitioned.

Kristian and Rob completed the PMIs together, Kristian completed the sheet and Colin quality checked it. I asked why the apparent brake defect had not been noticed and why there had not been a comparison between inspections. Having not received a response, I asked about the practicality of outsourcing maintenance. It had not been considered as they had their own facilities. I suggested an external contractor could use their facilities as I was aware that there were contractors offering such a service. Mr Spiller said he would look in to it.

I noted that the update from the DVSA Traffic Examiner was largely positive and my main concern was the apparent lack of progress despite the company having been under scrutiny for so long. Mr Spiller told me that a server failure in 2023 had meant that the introduction of the digital system was pushed back. I rose for a few minutes to enable Mr Banks to take instructions in relation to the transport manager and the potential for outsourcing.

Mr Banks offered an undertaking that a proportion of inspections, maybe 25%, could be carried out by an independent technician with a proviso that the operator could be released from that undertaking if they recruited a suitably qualified person in to their own workshop.

In relation to Mr Inman, he was willing to sit the examination. He had worked as an operations manager so had the relevant experience.

6.3 The evidence of Colin Inman

Colin Inman told me that he had worked as operations manager at Centurion from 2009 – 2014. He had been the test lane manager there and compliance manager overseeing drivers and the workshop. In 2014, he became the operations manager at Arleen. From 2019 to December 2023, he had worked alongside the transport manager at Chandlers. He had undertaken refresher training. He had sat an irtec course five years ago and would sit the CPC if necessary. He had been involved in commercial vehicles all his life.

6.4 Closing submissions

There were undertakings that could be given. There were options for the transport manager arrangements. It was accepted that the STC guidance required more than just a technical qualification. Mr Inman had been back in the business since only December and had not had the opportunity to correct the management systems.

7. CONSIDERATION AND FINDINGS OF FACT

Two vehicles were parked in Glastonbury at an unauthorised site. Section 17(3)(a) is made out. This is not a case that they were left on the side of a road, though. Their parking location appears appropriate and an application to add the site was made immediately. I make little of this in relation to the company but it is a clear indication of a lack of transport manager control.

Around 5% of inspections are conducted late. Section 17(3)(a) is again made out but the overall picture is of generally effective planning and scheduling of preventative inspections. In all but three cases, the slip is just in to the following week. I attach no weight to this finding.

I have grave concerns in respect of the proper completion of the maintenance documentation and the standard of maintenance generally. Mr Lailey says in his report that he issued four defect notices for defects that should have been recorded on the previous inspection. Whilst some of the issues could be down to the various management and filing systems in place, I note this particular extract from the maintenance report:

     “Vehicle YC16XAH on 24/2/2023 was noted as offside rear hub seal weeping, parts ordered. The next 3 PMIs this defect had not been monitored. On the safety inspection 16/6/23 it’s noted the offside rear brakes are contaminated in oil”

So I am left unable to know whether the seal was left unrepaired for four months, or whether it was repaired more promptly but no-one noticed that the brakes had been contaminated with oil. Neither is a good outcome.

I also note the following:

     “On many safety inspections the brakes are adjusted. These vehicles are fitted with automatic slack adjusters they do not require adjusting”

Adjusting automatic slack adjusters is usually a clear indication of a technician who does not know what he or she is doing. The DVSA guidance on the gov.uk website is very clear on this point and I reproduce it here:

Automatic slack adjusters should never need to be manually adjusted in service.

Repeated manual adjustment can cause premature wear of the internal components and lead to early failure. However, you might need to manually adjust your slack adjuster when you:

• install it
• repair your brakes
• perform overhaul procedures, such as relines

Automatic slack adjusters should not be manually adjusted to correct excessive pushrod stroke.

Excessive pushrod stroke indicates that there is a problem with either the automatic adjuster, with the installation of the adjuster, or with other related brake components, which manual adjustment will not fix.

Adjusting the slack adjuster masks a potential fundamental problem with the foundation brake. A brake performance test immediately after adjustment will probably pass but the underlying fault is very likely to re-appear. That is why the guidance says that it should not be done and why competent technicians do not do it.

There is also a clear trend from the first report and from the pre-inquiry follow-up that the brake test report is not being properly scrutinised. We discussed at the inquiry a parking brake where effort had reduced by some 25% between inspections but no one seemed to notice. When Mr Lailey’s report drew attention to it, I was offered some nonsense about how it depends how much fuel is in the tank and the weather. The vehicle is a full-size coach which will weigh something in the order of 12 tonnes when empty. The effect of a couple of hundred litres of diesel will affect the weight and therefore potentially the braking effort by no more than 2%. That any technician or transport manager might genuinely believe otherwise is alarming. However, my real criticism here is that no-one noticed a 25% reduction in effort and no-one asked any questions about it. That is all I expect from a transport manager, care and an inquiring mind, not in-depth technical knowledge.

There has been a recent improvement in MOT test outcomes, albeit from a fairly low level. That is not enough to allow me to conclude that vehicles have been kept fit and serviceable. Section 17(3)(aa) is made out and I attach significant weight.

Mr Lailey, at part 5 of his report, is scathing about the driver defect reporting system with defects such as a passenger door that keeps opening only reported at the end of the shift. Many driver reportable defects are found during PMIs. There is a move to electronic defect reporting but it is unclear whether that will have any material improvement. Section 17(3)(aa) is further made out and significant weight attached.

Prohibitions have been issued for serious defects. Section 17(3)(c) is made out.

It is very strange that an operator with five statutory directors to put forward just the one for public inquiry. Having told me that Julian Spiller was able to handle all the issues, Julian Spiller then failed to offer any opinion on his assertion that brake performance testing would have variability of 25% based on how much diesel is in the tank and the ambient conditions. I can only conclude, having put it to Julian Spiller in the inquiry, that Kristian was kept away for a reason.

There are positives here. The recent traffic examiner update report raised only minor concerns and I consider it a clean bill of health in that regard. Potentially that is down to the input of Mr Inman, whose nomination as transport manager I will return to shortly.

My main concern here is transport management and the transport manager. This is an operator authorised for 24 vehicles, and elderly vehicles at that. The transport manager is also managing director. As well as the PSV operation, he is responsible for running an MOT garage and a fuel station. It is not surprising that he finds he is running out of capacity. It is not clear what, if anything, the other statutory directors do nor why they left him to deal with the public inquiry alone. His situation is not something that has just happened and he should have taken steps at a much earlier stage to find an alternative transport manager. I find that he is not exercising continuous and effective control and that arises, as managing director, out of his own choosing. Having not acted more swiftly it falls to me to ensure that there is action now. Julian Spiller has not managed this operation as he should and his good repute is lost. He is disqualified from acting as transport manager for a period of twelve months, until he can demonstrate that he has undertaken three months of learning alongside a competent transport manager and he demonstrates he has the capacity to fulfil the role.

If follows that both Sections 17(1)(a) and (b) are made out. I will allow a period of grace of 3 months for the appointment of a suitable, qualified transport manager. If professional competence has not been restored by that point, revocation becomes mandatory.

The operator proposed Colin Inman as transport manager. Mr Inman relies on a certificate of acquired rights issued in February 2012. He has never been named as a transport manager on any licence. I took Mr Banks to the legislation in the hearing and I repeat my analysis of it now. The relevant document is EU Regulation 1071/2009 as adopted in to UK law. The recitals are not part of the Regulation but give guidance on the purpose of the legislation and so how it should be applied. Recital 11 is relevant here and says the following:

A high level of professional qualification should increase the socioeconomic efficiency of the road transport sector. It is therefore appropriate that applicants for the post of transport manager should possess high-quality professional knowledge. In order to ensure greater uniformity of examinations and to promote a high quality of training, it is appropriate to provide that Member States may authorise examination and training centres according to criteria to be defined by them. Transport managers should possess the requisite knowledge for managing both national and international transport operations. The list of subjects of which knowledge is required in order to obtain a certificate of professional competence and the procedures for the organisation of examinations are likely to evolve with technical progress, and provision should be made for updating them. It should be possible for Member States to exempt from the examinations persons who can provide proof of continuous experience in managing transport activities.

Article 9 then says the following:

Member States may decide to exempt from the examinations referred to in Article  8(1) persons who provide proof that they have continuously managed a road haulage undertaking or a road passenger transport undertaking in one or more Member States for the period of 10 years before 4 December 2009.

The person responsible for the continuous and effective management of a transport operation is the nominated transport manager. I am at something of a loss as to how Mr Inman gained his acquired rights having never been specified as a transport manager but the Upper Tribunal has considered this point in T/2017/04 Patricia Bakewell. They have concluded that Traffic Commissioners can only interfere with the certification when there has been deception. However, in T/2014/050 Andrew Harris, the Tribunal also makes it clear that a transport manager must do more than just hold the qualification and must have a number of other characteristics. I find it highly unlikely that an unqualified individual who has never acted as a transport manager and who relies upon a twelve-year old acquired rights certificate will have the knowledge necessary to continuously and effectively manage a transport operation without sitting and passing the examination. That  examination is kept up-to-date and relevant by the exam providers. I give Mr Inman credit for having attended recent training but I will not accept that he can undertake the statutory duty unless he qualifies by examination.

I move on to consider regulatory action. My serious findings in relation to maintenance and the slowness to act mean that a degree of regulatory action is necessary but the recent progress made and the undertaking offered means that I need not interfere with the operation. A major concern is the technical capability of the person managing the workshop. I am offered and record the following undertaking (my drafting from the conversation, open to correction if need be):

25% of preventative maintenance inspections will be conducted by a qualified independent technician. The operator can seek to be released from this undertaking by employee directly a qualified individual.

The following is an extract from an industry document on a proposed maintenance provision rating scheme that seeks to define the relevant qualification. This was not discussed during the hearing so should be considered as a starting point – there may be alternatives which are equivalent:

• City & Guilds Motor Vehicle Engineering at Level 3
• Motor Vehicle Maintenance & Repair at Level 3
• IMI ATA registration at diagnostic technician level
• IRTEC registration at advanced technician level
• Engtech registration.

Having recorded that undertaking and having caused the operator to change transport manager, and noting the peak vehicle requirement of 17, I will curtail the licence to 19 vehicles immediately and indefinitely. Having done that, financial standing is satisfied.

8. DECISIONS

Pursuant to an adverse finding under Section 17(3)(aa), that vehicles would be fit and serviceable, the licence is curtailed to 19 vehicles immediately and indefinitely.

Justin Spiller has lost his good repute as transport manager and is disqualified from acting as such for a period of one year and until he can demonstrate that he has undertaken three months of learning alongside a competent transport manager and he demonstrates he has the capacity to fulfil the role

Pursuant to Section 17(1)(a) and (b) of the Act, the licence is without professional competence. I grant a period of grace of three months for that to be rectified. If professional competence is not restored by that point, revocation is mandatory.

Kevin Rooney

Traffic Commissioner

12 August 2024