Decision

Decision for David McAulay t/a Teithio Seren (PG2065613) & GM Buses Limited (PG2071745) & Transport Manager: Kevin Graham Bryant

Published 31 July 2024

0.1 In the Welsh Traffic Area

1. Written Decision of the Traffic Commissioner

2. Public Inquiry held on 18 June 2024 at Caernarfon

2.1 Operator: David McAulay t/a Teithio Seren (PG2065613) & GM Buses Limited (PG2071745) & Transport Manager: Kevin Graham Bryant

3. Background

David McAulay, trading as Teithio Seren, holds a sole trader Standard National PSV Operator’s Licence authorising 2 vehicles, granted on 16 June 2023. The transport manager nominated on the licence at the time of grant was Kevin Bryant, until he resigned on 22 January 2024. Kevin Bryant is currently external transport manager for three other PSV operators. He notified the Office of the Traffic Commissioner (“OTC”) of his resignation on 21 January and forwarded his letter of resignation which gave his reasons.  That letter alleged that David McAulay had failed to allow him access to documents, failed to inform him of relevant events until 20 days later (reference to a DVSA fixed penalty) and rejected his advice as to policies and procedures to be used. Following his resignation, a period of grace was requested by the operator and was in place until Simon Alexander was accepted as transport manager on the licence on 16 April 2024. The operator submitted a variation application on 24 January to use a new operating centre and to increase the maximum number of authorised vehicles from two to three.  The operator also wrote to OTC making counter allegations about Kevin Bryant, alleging that he had not been contactable and was rude and abusive to David McAulay who had made formal requests to him for the return of documents.

Due to the apparent dispute between the operator and his former transport manager, and in view of the variation application to increase the number of vehicles authorised on the licence, I asked OTC staff to refer the concerns raised by the parties to the Driver and Vehicle Standards Agency (“DVSA”).  The DVSA decided to conduct a traffic and maintenance desk-based assessment of the operator’s systems for complying with his public service vehicle licence obligations.  Vehicle Examiner (“VE”) Thornhill and Traffic Examiner (“TE”) Smith carried out their assessment during February and March 2024.  Their report dated 14 March 2024 was marked as “unsatisfactory” and highlighted numerous concerns including the following:

• Inspection/maintenance records – not properly completed with one record including the details of the wrong operator and brake tests carried out as class 7 (LGV); no maintenance contract provided, and no detail provided of the required maintenance equipment and facilities;

• No evidence of driver defect reporting system;

• Ineffective forward planning system with no declaration on whether calibration dates are recorded or the period projected;

• No records of driving licence copies, driver CPC or driver training records provided;

• No supporting evidence of wheel security or tyre management arrangements or vehicle emissions monitoring;

• No effective system of recording planned journeys or duties and no effective system to ensure analogue charts, logbooks or printer rolls are issued to drivers and returned within the required time period with no records produced to show driver cards and vehicle units are being downloaded (operator claimed that he did not have access to these as these were held on his former transport manager’s computer);

• No system in place for managing working time records.  The operator claimed that drivers only worked 3 hours a day Monday to Friday but that did not reflect the DVSA analysis of data; and

• Roadside encounter on 1 December 2023 identified offences of tachograph not fitted in accordance with legislation and driver failing to use his driver’s card as required, resulting in a fixed penalty notice being issued, which was accepted by the operator.

An application by GM Buses Limited for a standard international public service vehicle operator’s licence authorising three vehicles was submitted on 16 February 2024.  David McAulay is now the sole director of that company (the other director, Kyle Clowes, having recently resigned).  David McAulay indicated at the time of application that he wished to surrender his sole trader licence if the new application were granted.   

David McAulay was called to a public inquiry at Caernarfon to consider the shortcomings identified in the DVSA report, with specific reference to sections 17(3)(a), (aa), (b), (c) and (e) of the Act and whether he continued to meet the requirements of good repute and financial standing. Kevin Bryant, transport manager, was also called to the inquiry to consider whether he continued to meet the requirements to be of good repute and to be professionally competent. In view of the alleged compliance issues in respect of the licence held by David McAulay (who is a director of GM Buses Limited) and concerns about whether the proposed transport manager on that licence would be able to demonstrate continuous and effective control, the applicant was also called to the public inquiry to consider whether it met the statutory requirements of sections 14ZA and 14ZC of the Act.

4. Hearing

The Public Inquiry was listed for 18 June 2024 at 10.00am at the Office of the Traffic Commissioner for Wales in Caernarfon.  It went ahead and was concluded on that date.  David McAulay attended as sole trader operator and as director of the applicant company and was represented by Laura Hadzik of JMW Solicitors.  Kevin Bryant, former transport manager for the operator, attended unrepresented.  VE Thornhill and TE Smith attended from the DVSA, remotely via Microsoft Teams. Colin Criddle, proposed transport manager for the applicant company also attended.

5. Evidence

In addition to the papers in the PI Briefs for the operator and transport manager I had been provided, in advance of the hearing, with additional evidence.  On behalf of the operator and applicant company this consisted of the finance documents requested in the call-in letters (which demonstrated that the financial standing requirement was met by David McAulay, sole trader operator), an “operator summary report” dated 4 June 2024 prepared by RHN Transport consultancy; a contract proposal of operator support between RHN consultancy ltd and the applicant company; and a sales invoice to the applicant company from the RHA in respect of coach membership for a fleet size of 2 vehicles. The operator had been directed to send specific maintenance and drivers’ hours data and records to the DVSA witnesses and they had prepared supplementary reports for the Public Inquiry hearing having reviewed those documents (VE Thornhill’s report of 5 June 2024 and TE Smith’s report of 11 June 2024).  Those supplementary reports were served on the operator in advance of the inquiry hearing.  Kevin Bryant submitted written representations (a six-page letter dated 29 May 2024 at pages 253 to 258 of the PI digital bundle) with exhibits attached to his representations (pages 259 to 402 of the digital bundle).  Kevin Bryant’s evidence was also served on David McAulay in advance of the hearing.

The evidence of the DVSA witnesses (VE Thornhill and TE Smith) included in the public inquiry briefs and their supplementary reports was adopted by them and Ms Hadzik indicated that the evidence was not contested by her client. Similarly, Kevin Bryant did not contest the DVSA witness’ evidence.  VE Thornhill did not give evidence, but TE Smith was questioned by me, Ms Hadzik and Mr Bryant, in particular regarding what the DVSA expects of operators in terms of record keeping and driver card use where operators are carrying out operations that are not within scope of the EU/AETR rules.

David McAulay and Kevin Bryant gave oral evidence, responding to questions from Ms Hadzik and from me.  Kevin Bryant was also given the opportunity to question David McAulay, which he did.  Colin Criddle, proposed transport manager on the licence application gave evidence and responded to questions from Ms Hadzik and from me.  Ms Hadzik made representations on behalf of the operator and applicant, with evidence about finances heard in closed session. I then reserved my decision.  

6. Findings of fact

It is clear from the written evidence, which was not challenged by the operator, that safety inspections, maintenance and repair work were not all carried out by MDK Commercials Ltd. Accordingly, I find that statements made by the operator when applying for the licence have not been fulfilled, namely that safety inspections and/or maintenance and repair work would be carried out at MDK Commercials Ltd as the operator promised they would be and find that section 17(3)(a) of the Act is made out.

The evidence is clear that the operator failed to comply with the undertaking on the licence that he would observe the rules on drivers’ hours and tachographs and keep proper records and the undertaking that he would keep records for 15 months of driver defect reports, safety inspections and routine maintenance and make them available on request. Although the licence was granted in June 2023, the operator did not start operating until the end of August 2023.  The majority of work conducted was rail replacement work and he had also taken on some school contracts at the time of the DVSA assessment in March of this year.  Although Kevin Bryant had sought to introduce systems for recording all work done and had advocated that drivers should use their driver cards for all driving whether that driving was done in reliance of the exemption from EU/AETR drivers’ hour legislation or not, David McAulay did not accept that advice. During inquiry there was much discussion about how to record drivers’ hours and working time and the difficulties in doing so where there is an element of “mixed” driving – in other words, driving partly under GB Domestic Hours rules and partly under EU/AETR rules.  Whilst this operator was primarily engaged in the former, on the evidence before me it was clear that at least some of the driving done did fall within EU/AETR requirements triggering the requirement to keep full and proper records in compliance with the relevant legislation. Indeed, the journey which resulted in the operator’s vehicle being stopped on 1 December 2023 and a fixed penalty issued for the driver driving without his card (as he evidently should have been for that journey) was one such example, but it was clear from the operator’s own evidence that that there were other journeys which were not covered by the exemption (such as airport runs and private contract work on 31/3/24).  The DVSA stop in December also found that the tachograph was not fitted in accordance with the regulations. Tachograph download periods were far exceeded for at least one driver (Valentine) who was driving under the EU rules. Such records as were produced to demonstrate routes driven and by which drivers, were not accurate or reliable – as admitted by David McAulay during his evidence who accepted that mistakes in those were down to him.  On the evidence before me I find that the operator has failed to implement an effective or compliant system for recording the use of all authorised vehicles and all work done, whether under EU or domestic drivers’ hours rules. David McAulay, as operator, undertook to keep records and make these available on request.  He failed to do so at the time of the DVSA assessment, alleging that he was unable to do so because these records were all held by his former transport manager.  Kevin Bryant’s evidence, supported by email correspondence between the two individuals was and remained at the time of the public inquiry that, as operator, David McAulay also had access to the Aquarius IT system and that any data or files held by him had in any case been sent directly to him by David McAulay so were already in his possession. That was disputed by David McAulay. However, as operator, it was his responsibility to ensure that he complied with the licence undertaking to keep and produce such records and it was therefore incumbent on him to ensure that he did have access to those.  Kevin Bryant’s evidence was that manual driver defect reports were held by David McAulay and could have been presented to the DVSA at the time of their assessment.  That was not challenged by the operator. The operator was also asked to provide documents to VE Thornhill for him to assess in advance of the public inquiry.  However, he again failed to produce all the maintenance records that were requested, with no driver defect reports submitted for assessment by the DVSA once again.  This time he could not blame Kevin Bryant for that failure and, when asked by me why he had not done so, even though there had been some vehicle operation during the relevant period, he was unable to provide any reasonable explanation.  Accordingly, I find that section 17(3)(aa) of the Act is made out.

I find that there was ineffective management control and insufficient procedures in place to prevent operator licence compliance failings, and that remained the case at the time of the public inquiry with the one inspection report submitted since the DVSA original assessment exceeding the promised inspection frequency by two weeks, and no driver defect reports provided for analysis.   There were ineffective analysis and record keeping procedures in place to detect drivers’ hours and working time infringements and insufficient procedures in place to ensure appropriate use of tachograph or manual records by drivers, as evidenced at the time of the DVSA roadside encounter in December. The loose arrangements involving other operators vehicles and control of drivers, with drivers allowed to use vehicles for personal use and lack of any formal arrangement gave the DVSA cause for concern and contributed to the ineffective management control which resulted in these compliance failings. 

Kevin Bryant was the nominated transport manager on this licence for a relatively short time in the licence’s short operating history.  He acted in that capacity from its inception in June 2023 until his resignation in January this year, although the period of PSV operation during that time was just over 3 months. 

Kevin Bryant’s written representations are supported by detailed documentary evidence which show that he did repeatedly ask the operator to provide him with relevant information and repeatedly reminded him of what he needed to do in order to comply with obligations (such as tachograph downloading obligations) from as far back as October 2023. The recommendations that he made to the operator and reminders that he sent are what I would expect of a competent transport manager. In his written representations, Kevin Bryant gives the reason for his resignation and stated that, “with retrospect it is something I should have done earlier.” When questioned about why he had not done so earlier he explained that he genuinely believed that David McAulay wanted to comply and that he would take on board his advice and provide all the information that he had requested. He had experience of acting as transport manager for new operators and found that they needed more management to get them to a point of full compliance and that is why he persisted for as long he did.  I accepted his evidence in that regard. I do not find on the evidence that Kevin Bryant failed effectively and continuously to manage the operator’s transport activities, as required by the legislation and nor do I find that the compliance failings I have found made out and already discussed above are in any way down to him.  

7. Considerations and Decisions in respect of the operator

I have weighed up the adverse findings set out above with the positive features in this case in considering regulatory action.  On the positive side, there have been no “S” marked prohibitions and no road safety critical defects found. There have been no previous unsatisfactory DVSA reports, although the licence has only been in force for a year, and not in fact operating for a significant proportion of that time. The operator has now stopped operating and, as sole director of GM Buses Limited, he has made an application for a new licence in the limited company entity.  He seeks to surrender this existing licence although Ms Hadzik did request that, if revocation is considered appropriate, that I do not take any action which would result in that application being unable to proceed.  

Balancing these negative and positive features and having regard to the Senior Traffic Commissioner’s Statutory Document 10, Annex 4, I consider this case to be in the “serious to moderate” category. Revocation with consideration of disqualification is within the range of starting points for regulatory action which I must consider. In determining whether David McAulay as operator continues to satisfy the mandatory and continuing requirement to be of good repute in section 14ZA(2) of the Act I have had regard to all of the evidence before me, the representations made, and the Senior Traffic Commissioner’s Statutory Document No. 2 on good repute and fitness.     

The operator has already ceased operations and requests surrender of this licence.  However, in view of the adverse findings made, and with reference to section 15(4) of the Act, that surrender request is refused.  On the evidence before me I consider that it is appropriate and proportionate to revoke this licence and do so with immediate effect given that operations have ceased. I do not make a finding that David McAulay has lost his good repute as an operator, although I find it is tarnished, which is of course relevant to my consideration of the application before me.  Nor do I make an order as to disqualification, having considered all matters (including disqualification) holistically to avoid a disproportionate outcome. I direct that the licence is revoked with immediate effect pursuant to adverse findings in terms of sections 17(3)(a) and 17(3)(aa) of the Act. 

8. Considerations and Decisions in respect of transport manager Kevin Bryant

It follows from my findings set out above that Kevin Bryant retains his repute as transport manager.  

9. Considerations and Decisions in respect of application by GM Buses Limited

In respect of the application by GM Buses Ltd, the financial standing requirement for 3 vehicles was not met at the date of the Public Inquiry. However, the applicant confirmed that 2 vehicles were sufficient for the purposes of the business. David McAulay’s licence authorised 2 vehicles, although he only operated one vehicle.  In view of his compliance history, even had the finance requirement been met, I would not have granted the application for 3 vehicles.

The applicant gave a statement of intent as to future operations and, specifically, as to arrangements for driving (which will always be done using a driver card) and as to record keeping.  David McAulay is booked to attend an operator licence awareness training course. The operator offered to agree to undertakings which formalise those stated intentions and offered to agree to an audit undertaking as a condition of grant to give me assurance that commitments given at the inquiry will be followed through. 

I am satisfied on the evidence from Colin Criddle, proposed transport manager, that he will be able to continuously and effectively carry out the responsibilities of transport manager on the licence.

Accordingly, pursuant to sections 14 and 16 of the Act, I grant the application for a standard international public service vehicle operator licence with the condition that a maximum of 2 vehicles may at any one time be used under the licence, and with the agreed undertakings set out at paragraph 2 of my Decision above attached.  

Victoria Davies
Traffic Commissioner for Wales

 2 July 2024