Decision

Decision for Clayton Jones t/a Street Buses (PG2046227 and PG2056039) and Transport Manager, Clayton Jones

Published 2 March 2023

0.1 In the Welsh Traffic Area

1. Written Decision of the Deputy Traffic Commissioner

1.1 Clayton Jones t/a Street Buses (PG2046227 and PG2056039) and Transport Manager, Clayton Jones

2. Background

Clayton Jones, trading as, Street Buses (“the operator”), is the holder of a Standard National Passenger Service Vehicle Operator’s Licence authorising 8 vehicles. The licence was granted following a public inquiry held on 7th December 2021.

On 8th December 2021, the operator agreed to “standard undertakings” on a PSV licence relating to small vehicles and limousines. He also agreed to an undertaking to provide an independent audit on compliance systems by 13th September 2022.

Somewhat surprisingly, the operator appealed against the grant decision and on 18th July 2022 the Upper Tribunal dismissed the appeal stating, “There is no merit in this appeal whatsoever. It is now for Mr Jones to comply with the undertaking he has given if he has not already done so”.

On 18th January 2022 the operator was granted 13 registered bus routes to commence operation with effect from 7th February 2022.

On 14th February the operator wrote to the Central Licensing Unit, Leeds, stating he wished to “suspend” 8 of the registered services, because of the failings of others. There is no power in law to suspend services in the way the operator applied and the operator conceded that he was aware of that fact.

On 14th February Bus Compliance Officer, Sian Thomas, commenced routine observations of the newly registered routes in order to check punctuality compliance. The 12 routes checked were failing to operate and a punctuality monitoring exercise was carried out between 14th February and 6th May 2022.

The findings of the 499 observations were a 26.85% punctuality rate, with 68.14% of services failing to operate. This fell far short of the Senior Traffic Commissioner’s target punctuality rate of 95% (Statutory Document No. 14) and the call to public inquiry was initiated in December 2022.

The call-up letter refers to the breach of Section 26 of the 1985 Act in respect of failing to operate registered services and not complying with registered timetables.

The call-up also raises a breach of section 17(3)(aa) of the 1981 Act, in not honouring the undertaking to provide the audit report referred to above.

The operator was called in respect of his repute, financial standing and professional competence as the designated Transport Manager.

The operator is also the holder of a Special Restricted Operator’s Licence permitting 2 private hire vehicles to provide a local service granted on 8th September 2022.

Vehicles have not been operated on this licence and the call-up to public inquiry arises from the issues on the Standard National Licence.

3. The Public Inquiry

At the Public Inquiry on the 27th January 2023, the operator attended. Later in the morning his maintenance contractor attended. He was released as maintenance was not an issue in these proceedings, although it was referred to as part of the standard call-up requirements.

Bus Compliance Officer, Sian Thomas, also attended.

At the beginning of the hearing I outlined the key issues and the evidence I had considered in advance of the hearing. I referred to the public inquiry brief and the Bus Compliance Officer’s report. I was concerned to hear Mr Jones say that he had neither received the brief nor the report.

My clerk confirmed that the brief had been sent by recorded delivery to the operator’s address and Mr Jones then stated that he had not signed for any recorded delivery envelopes.

My clerk then stated that an electronic brief had been sent to Mr Jones’ email address on 1st January 2023 which, he then denied having received. I was then referred to a reply from Mr Jones dated 2nd January 2023. He then stated that he had not received the attachments (the brief) with the email notification. I reminded Mr Jones that his reply made specific reference to the email attachments which he reluctantly accepted that he had received.

The brief also makes it clear that Mr Jones had discussed the contents of the Bus Users punctuality exercise with Mrs Thomas and Bus Users Cymru Director, Barclay Davies, on 10th June 2022.

Mr Jones also complained regarding the call-up being issued shortly before the Xmas break with response dates in mid-January. However, I note that he had specifically requested a hearing before the end of January when responding to the Office of the Traffic Commissioner on 24th November 2022 (page 256 of the brief).

I was satisfied that Mr Jones had had more than adequate notice of the issues and the evidence, and, he confirmed that he was content to proceed with the hearing.

4. Evidence

Bus Compliance Officer, Sian Thomas, attested to the accuracy of her report dated 17th June 2022, at pages 215-243 of the brief.

Mrs Thomas also referred to the additional punctuality monitoring carried out after the June report. Between 23rd June and 12th October 2022, 84.64% of services failed to operate and the overall punctuality rate was 8.99%.

Mr Jones produced a large file of documents (attachments 1-68) at the hearing despite being told that all documents should be submitted in advance. In the event, I considered these documents during an extended luncheon adjournment in order to ensure that all Mr Jones’ evidence was fully taken into account.

I have also taken into consideration further documents emailed to the OTC on 31st January 2023, after the public inquiry.

5. Findings on the Evidence

The operator did not dispute the results of the bus monitoring exercise. I therefore find that there is prima facie evidence that services have not been run in accordance with the registrations.

The operator seeks to rely on “reasonable excuse” identifying 5 specific areas:

i. Non-Delivery of 3 new buses by EVM Ltd.

ii. Non-receipt of ticketing machines by Caerphilly C.B.C. Ltd

iii. “Complicity” created by Rhondda Cynon Taff Council

iv. Non-receipt of funding from Monmouthshire County Council and Welsh Government

v. Office of the Traffic Commissioner – “fundamental faults”

Prior to the hearing the operator requested the attendance of 11 witnesses including: EVM Limited (re, alleged breach of contract); Welsh Government Transport Minister; RCT officials (re Road Transport Orders, private hire bus requirements, driver licensing delays); RCT elected members; Monmouthshire County Council (re, National funding issues); Welsh Government official (re, funding); and, Caerphilly County Borough Council official (re, ticket machines).

This would potentially result in a series of ‘trials’ on tangential issues not within the proper jurisdiction of the tribunal. Whilst it may satisfy Mr Jones’ desire to hold others to account publicly, for what he perceives to be their “dysfunctionality”, it is not legally appropriate, practicable or desirable. In the event, none of the individuals requested attended.

I therefore deal with the 5 issues only as far as they are deemed relevant to the issue of “reasonable excuse” under the Act. The operator has not sought to paginate, summarise or provide an index to the 68 document bundles in his folder of evidence but I have considered the contents as evidence in making my findings.

i. EVM Ltd.-– the issue of non-delivery of 3 of the 6 vehicles purchased in August 2021 is a contractual matter that Mr Jones has stated will be subject to civil proceedings. Clearly there are complex issues relating to Covid, Brexit and supply-chain responsibilities. From the bus registrations perspective, the duty of the operator is either to source alternative vehicles before the timetable start date or, to apply for short-notice cancellation using the prescribed documentation. By 7th February 2022, Mr Jones had done neither.

ii. Ticketing Machines – over 30 of the document bundles deal with the operator’s dealings with Caerphilly C.B.C. regarding the ticket machines for his buses. Again, this is a dispute that I cannot be expected to make definitive findings on, but I note that in December 2021, the Transport Officer for Caerphilly C.B.C. was writing to the operator stating that he had not supplied all the information required to allocate the ticketing machines. Again, I do not find the failure of the operator to have the vehicles ready for the registered service to be a “reasonable excuse” under the Act.

iii. Rhondda Cynon Taff C.B.C. – the operator’s complaints regarding RCT CBC firstly relate to a Road Closure Order on the White Bridge, Pontypridd, issued on 12th May 2022. The closure runs from 16th May 2022 until 30th January 2023 and it is hard to see how this closure has any relevance to the initial bus monitoring exercise which was conducted from 14th February until 6th May 2022.
The operator’s second issue regarding RCT CBC, relates to the administration involved in the issue of Private Hire Licences and the required qualifications for drivers. This issue was raised by the operator in his Upper Tribunal hearing. It was deemed to be of no relevance to that appeal and it seems of no relevance to the failure to operate the registered PSV services in vehicles with 9 or more passenger seats in this inquiry.
Finally, Mr Jones is aggrieved at the rules relating to the use of the Pontypridd Bus Station and the moving of bus stop facilities. Again, his opinion as to the Local Authority’s “dysfunctionality” does not form a “reasonable excuse”.

iv. Monmouthshire County Council – this issue relates to the Council’s delegated responsibility to allocate bus funding in South East Wales on behalf of the Welsh Government. Mr Jones sought to have County Council officials and Welsh Government Transport Minister for Wales attend the public inquiry. However, it is clear from the letter sent to the operator (at section 45 of the operator’s bundle) that the Bus Funding Management Group considered that the operator failed to meet the published criteria and that he should have carried out due diligence as to eligibility to public funding before registering the services.
Again, the decision on funding was apparently not publicised until July 2022 so has no bearing on the February-May 2022 monitoring exercise and the operator’s action to cancel all services after the July announcement was a commercial decision and not a “reasonable excuse”.

v. Office of the Traffic Commissioner – the operator takes 4½ pages of his submissions document to comment on every aspect of the call-up papers. The sole purpose seems to be to allege “dysfunctionality” in another public body. It is unfortunate that in using standard public inquiry templates some of the statutory references (e.g. to the Goods Vehicle Act) are incorrect and Mr Jones makes great play of the mistake in Bus Compliance Officer, Sian Thomas, being named Sian Williams. Where errors have been identified prior to the hearing, corrections have been made (e.g a new TM call-up letter issued) but essentially, the operator has not been misled and, none of the errors are material to “reasonable excuse” or any other issues in the inquiry. Whilst Mr Jones complains of the staff living in a “parallel world” in sending out documents immediately prior to Xmas and requesting responses by 13th January, some of the pressures were created by meeting his request to have the hearing listed before the end of January rather than in February, as originally planned.

Taken individually, and collectively, I determine that the reasons put forward for the operator failing to operate according to the registered timetable, do not amount to a “reasonable excuse” under the Act.

I also have to have regard to the purpose of the legislation regarding bus punctuality. It is to deal with unforeseen events which prevent operators providing registered service on a particular route at a particular time, not to deal with contractual, financial or other disputes which make an operator decide to “suspend” services across the board.

The Act provides for bus timetables to be cancelled or changed at short notice in certain prescribed circumstances. The application dated 14th February 2022, at pages 202-205 of the brief, fails to meet the criteria or to meet the procedural requirements.

I was initially concerned that the Public Inquiry brief seemed to indicate a gap in communications between the operator and the OTC between 14th February (page 197) and 16th August 2022 (page 206) and there was no evidence of a response to the operator’s request. However, the operator confirmed that he had been in regular contact with the OTC between February and August and I am satisfied that the “gap” is merely in the audit trail of calls, messages and correspondence. He also confirmed that, with over 40 years’ experience in the industry, he was well aware that there was no power to “suspend” services as he purported to do in February 2022.

The Audit Undertaking – as stated in the call-up letter, the operator agreed to this undertaking on the 8th December 2021, Although Mr Jones describes this consent as based on, “a form of blackmail”, the Upper Tribunal confirmed the requirement in the decision dated 18th July 2022.

No audit report has been produced before 13th September 2022 or since. The operator refers to the unfortunate passing of his “H & S Operator Councillor Anthony Burnell”. It is hard to see how this amounts to an explanation or a reasonable excuse for not fulfilling the undertaking. Mr Burnell would not have been eligible, or qualified, to carry out an “independent audit”. He passed away in July and the report was not due until September. The reference to “his main record book known as the black book has never been recovered” is bizarre. An operator and transport manager must have ongoing access to maintenance and traffic compliance records and it is those records, rather than Mr Burnell’s black book, that should have been submitted to an independent auditor.

In paragraph ii. of the operator’s submission dated 19th January, relating to the OTC and the evidence, he clarifies that his failure to produce the audit was based on his decision to cease services following the announcement regarding National funding for bus operators . I do not find this to be a reasonable excuse for not supplying the audit report.

6. Considerations and Decision

Good Repute as Operator and Transport Manager – the call-up letter raises the issues as to whether Mr Jones has lost his good repute, as an operator and Transport Manager, as a result of the alleged failure to run registered services and comply with the undertaking.

I have found that the operator’s reasons for not providing the registered service do not amount to a “reasonable excuse” but I accept that there was a genuine intent to run the services and that the reasons, such as the non-delivery of the newly-purchased buses and the problems associated with the ticketing machines, amount to mitigating circumstances. With regard to the gap in the paperwork between February 2022 and August 2022, whilst I have accepted that there was communication from the CLU to the operator, the absence of documentary proof amounts to some mitigation for him failing to make the correct application on the correct prescribed forms until August 2022.

Unfortunately, the actions and communications from Mr Jones pay insufficient regards to the bus users in the local community. The fact that Mr Jones placed signs on bus-stops stating “Street Buses have temporarily suspended all services with immediate effect “ provides little assistance or solace to members of the public seeking to rely on the registered bus services.

Having regard to the statements considered and the findings above I determine that:

• the operator has failed to run registered bus services in accordance with the published timetable (section 26(1)(a) & (b) of the Transport Act 1985).
• the operator has failed to honour the undertaking attached to the licence to provide an audit report by 17th September 2022 (sec. 17(3)(aa) of the Act);

In considering the appropriate regulatory action, whilst I have determined that loss of good repute would be disproportionate on this occasion, the operator still needs to demonstrate that he can work effectively within a regulated industry. It is the operator’s responsibility to see that formal applications are made on the prescribed forms within correct timescales. Similarly, communications need to be timely, relevant and manageable and this has not been evidenced, for example, in the large file of documents brought along on the morning of the public inquiry. I therefore formally warn Mr Jones with regard to his future conduct as an operator and transport manager.

Having regard to my findings at paragraph 41 in particular, and generally in the paragraphs above, I consider it appropriate and proportionate to reduce the authorisation on the operator’s Standard Licence to one vehicle.

In dealing with the failure to run regular and punctual services I determine that a financial penalty under Section 155 of the Act is appropriate in order to reflect the failure to the local community and to focus the operator’s mind on future compliance.

The Senior Traffic Commissioner’s Statutory Document No. 14 – Local Bus Services in England and Wales, provides starting points for penalties under section 155 of the 1985 Act. For services below 80% compliance, a penalty of £400-£500 per authorised vehicle is set down. I exercise my discretion to apply the lower end of £400 for each of the 8 authorised vehicles.

On a finding that the operator has failed without reasonable excuse to operate services in accordance with the registered timetable, the operator is required to pay a penalty of £400 per authorised vehicle (8), giving a total penalty of £3200. The penalty is payable to Welsh Government within 28 days of this decision.

I take no action with regard to the Special Restricted Licence PG2056039.

Anthony Seculer

Deputy Traffic Commissioner

Welsh Traffic Area

15th February 2023