Decision

Decision for Green Mountain Travel Limited (PB1087751 ) and Mr Jeffrey Heslop, the former Transport Manager

Published 5 October 2022

0.1 In the North Eastern Traffic Area

1. Written Decision of the Deputy Traffic Commissioner

1.1 Green Mountain Travel Limited PB1087751 and Mr Jeffrey Heslop, the former Transport Manager

2. Decisions

2.1 The Operator

The Operator’s licence is varied such that the condition attached to the licence under section 16(1) of the Act is amended from 11 vehicles to 10 vehicles with effect from 00.00 hours on 1 October 2022. I have found that I have discretion to make such an order under section 17 (2) of the Act, as the following grounds entitling me to exercise my discretion under section 17 (3) of the Act have been made out from my findings on the evidence before me, and that it is appropriate and proportionate to so order:

Section 17 (3) (aa)- breach of undertakings attached to its licence-

• to have proper arrangements in place to keep vehicles fit and serviceable;
• To replace tyres at not less than 3mm tyre tread depth;
• to ensure driver’s report in writing defects or symptoms of defects that may prevent the safe operation of vehicles;

Section 17 (3) (e)- The following material changes in the circumstances of the Operator that were relied upon when this licence was issued:

• The foregoing;
• The failure of the Former Transport Manager to exercise the effective and continuous management of the transport activities of the Operator by carrying on his duties to avert the foregoing;
• The failure of the Operator to exercise effective oversight of the Former Transport Manager during his period of office.

I have relied on the following further additional undertakings, which are attached to this licence with immediate effect, in making this decision:

• The Operator shall continue to engage the services of Mr. Peter Russell, transport consultant to provide advice and support to the Operator on operator’s licence compliance systems and records and their management and monitoring, to include a visit to the Operating Centre to meet face to face with the director and transport manager of the Operator and to review compliance records at least once every 6 weeks. A written record shall be made by Mr. Russell and copied to the Operator of every compliance meeting held by telephone, online, or in person and the Operator shall keep a copy of such records for at least 2 years and make these available promptly to the Traffic Commissioner at any time on request.

• The Operator shall ensure an independent audit of all its systems and records to comply with the requirements of this licence, and the effectiveness of these, is completed (for the period from 9 August 2022 to the date of audit) by no later than 30 June 2023 by a trade association (RHA/UK Logistics), or a similar body or transport consultant/solicitor experienced in undertaking and reporting on such audits to be supplied to the Traffic Commissioner (and approved in advance by the Traffic Commissioner in writing). The audit shall include consideration of the matters set out in the attached Annex. The Operator shall send an unedited copy of the audit report, together with its written proposals and timetable to implement any recommendations made by the auditor, so that this is received by the OTC North East, Leeds, without reminder, by the earlier of 14 days from its receipt of the audit report from the auditor and 31 July 2023.

The undertaking offered by the Operator and attached to this Licence at the Preliminary Hearing in 2017 is now amended to read:

The Operator shall ensure that the tyres and wheel nuts of all vehicles are checked weekly, in addition to the driver walk round checks of tyres and wheel nuts, for any damage and wear with a signed and dated written record kept of such checks, with the tyre tread depths and wheel nut retorque recorded for each wheel and tyre inspected. These records shall be retained by the Operator for at least 2 years and made available to the Traffic Commissioner at any time upon request. Any tyres which have remaining tread depths of no more than 2.5 mm, reported by a driver, at the weekly wheel and tyre check, at safety inspection, or otherwise, shall be replaced promptly by the Operator and no vehicle shall ever be operated with a tyre tread depth of less than 2mm at any time.

2.2 The Former Transport Manager

I have considered if the Former Transport Manager remains of the appropriate good repute and professional competence to act as a transport manager. On this occasion, I find that his good repute has been seriously tarnished by his failure to carry out his duties as a transport manager to the extent required to exercise the effective and continuous management of this operator’s transport activities required of him, particularly in the key areas of monitoring and managing the maintenance paperwork, the quality of annual test preparations and the driver defect reporting records and quality of walk round checks, and the keeping of records to evidence this. In addition, he failed to act in the timely, objective and considered manner expected of a professional transport manager once he considered his role could no longer be carried out, including his resignation without written notice from his employment with the company.

3. Background

The Operator currently holds a Standard International PSV Operators Licence, authorising the operation of up to 11 vehicles with 10 operator licence discs in issue under the licence at date of Inquiry, issued by the Traffic Commissioner for the North East of England with effect from 11 June 2009. The primary business of the Operator is the transport of school children and adults under Council contracts.

The Operator has a chequered operator licence compliance history, as summarised in the Background to the Case Summary at pages 4, 5 and 6 of the Brief for the Public Inquiry (‘the Brief’) prepared by the Office of the Traffic Commissioner (‘OTC’) with the following 5 instances of previous regulatory intervention by the Traffic Commissioner between 2011 and 2019:

• 2011- Formal Warning letter (Exceeding passenger numbers on a PSV)

• 2012- Formal Warning letter (Unsatisfactory Maintenance Investigation)

• 2017- Preliminary Hearing (Unsatisfactory Maintenance Investigation and ‘S ‘Marked Prohibition notice vehicle YN07 EAG for defective tyres worn beyond the legal limit whilst transporting school children)- Formal warning relying on various additional undertakings

• 2019- Public Inquiry (Unsatisfactory Maintenance Investigations in 2018 and 2019 with 2 further ‘S’ marked prohibition notices, vehicles NJ63 XSB and NK14 WBJ)- Formal Warning to Operator relying on various additional undertakings

• 2020- Formal Warning (followed by various further decisions) relating to the demonstration of financial standing, with financial standing subsequently found as met.

An unannounced, intelligence led, maintenance Investigation was carried out on 8 February 2022 by DVSA Vehicle Examiner (‘VE’) Patrick Duplessis. The outcome of the investigation was marked by the VE as ‘Report to OTC.’ Having considered, against the background of this Operator’s prior compliance history, the report of the VE, which included the Operator’s response, the Traffic Commissioner determined that the Operator and the Former Transport Manager should be called to a further Public Inquiry. The Operator and the Former Transport Manager were duly called to Public Inquiry by separate letters from the OTC dated 29 June 2022 (each referred to as a ‘Call Up Letter’)

4. The Public Inquiry

The Operator attended the Public Inquiry acting by its sole statutory director, Ms. Tracy Thorpe, represented by Mr. J Bell of Dyne Solicitors. In advance of the Inquiry, the Operator ‘s Solicitors had provided comprehensive written submissions (for which I am grateful) with a tabbed bundle of supporting documents, as well as files of the maintenance and other records required by the Operator’s Call Up Letter. Evidence relating to financial standing was also provided over various emails with the OTC up to the hearing, as well as at the hearing during the closed ‘in camera’ session. The Operator was accompanied by Ms. Julie Ann Farrell, its current transport manager and Mr. John Faulder, manager.

The Former Transport Manager attended the Public Inquiry and was unrepresented. The Former Transport Manager had provided with a signed 2 page typed ‘response the Inquiry ‘with attachments, and at close of hearing also produced a report of an audit completed by Tyne & Wear LGV Driving Centre Limited in respect of the maintenance systems of ‘T M Travel’ carried out on 23 June 2022. The Former Transport Manager has been the nominated transport manager for Terence Nicholson t/a TM Travel PB0004071 since April 2021 committing not less than 10 hours each week to this role.

DVSA VE Patrick Duplessis did not attend the Public Inquiry as no request for his attendance was made by either the Operator or the Former Transport Manager (as referred to in their Call Up Letters).

5. Considerations and Findings

I accept and adopt the written report of DVSA VE Patrick Duplessis and its attachments contained at pages 40 to 76 of the Operator’s Brief (and pages 24 to 60 of the Former Transport Manager’s Brief) as if set out in full in this decision. The evidence of the VE was not disputed by the Operator or the Former Transport Manager.

I have noted the following shortcomings found by the VE material to my considerations.

A ‘report to OTC’ assessment was given by the VE as the Operator was found to have breached the following undertaking on the licence. The Operator had (and still has) an undertaking on the licence to assess and record tyre tread depths every 7 days and to replace any tyre once the tread depth reached less than 3 mm.

Between 05 February 2021 and 05 March 2021 the N/S/F, N/S/R inner and O/S/R tyres of vehicle ST61 LSY were recorded as below 3 mm, and in spite of this, the vehicle had then travelled 2000 miles in breach of the foregoing undertaking given to the Traffic Commissioner.

Further, VE Duplessis conducted an inspection of ST61 LSY at the time of his visit, and the nearside front tyre was found to have uneven wear, giving a depth recording of 2.47 mm on one part of the tyre and 2.58 mm on another. The mechanic on site said that he knew the tyre had wear, and so had ordered new tyres that morning. (Proof of this order (and the delivery of the tyres) was provided in the Operator’s response).

Inspection records were not always being properly completed. Mileage had not been recorded on the inspection sheet for the inspection conducted on 23 April 2021. On many occasions the boxes for brake performance had not been filled in, on some occasions the fire extinguisher and first aid kit had not been signed off, and the decelerometer brake test of 12 October 2021 was wrongly dated 31 December 2020.

A suitable system was in place for drivers to report defects however, effective checks were not always being conducted in the first place. Defect books produced did not go back 15 months, and some records were missing altogether, additionally, safety inspection records showed numerous defects that should have been identified by an effective walkaround check. (The missing records were subsequently produced with the Operator’s response.)

The annual test history was indicative of poor management / maintenance standards. VE Duplessis noted the Operator’s 23.53% final failure rate, opposed to the national average of 7.75%, and the fact that safety critical defects had been found at annual test including steering, brakes, suspension, and tyre defects.

It is apparent to me from the foregoing that undertakings attached to this licence had been breached as found in my paragraph 1 above. The arrangements in place to keep the vehicles fit and serviceable and the Operator and Transport Manager’s management and monitoring of the systems and records of such arrangements were deficient in various respects and not appropriately effective. This is a particular concern in light of the compliance history including the further training required of the Transport Manager at the last Public Inquiry in 2019 (and also completed by him in 2021 in connection with his appointment with T M Travel) and the assurances and undertakings that were made by the Operator in 2017 and 2019 and relied on at those times.

The Former Transport Manager’s most recent post as Transport Manager for this Operator was for the period October 2018 until 28 January 2022. He was employed to work 20 hours per week as a driver for the Operator and 20 hours per week as its Transport Manager. Since April 2021, the Former Transport Manager had also acted as the external transport manager to satisfy the professional competence requirements for Mr. Terence Nicholson trading as T M Travel PB0004071. He did not inform the Operator of this arrangement. I would have expected him to do so, not as a matter of courtesy, but for legal compliance purposes, which should have been known to him as a transport manager. The operator is under a duty to manage its drivers’ working time and also has a duty under health and safety at work legislation, to manage the risks of driver’s fatigue considering their individual circumstances, such as health and age. Appropriate systems to manage and monitor drivers’ working time and driving safety should include records of any other employment.

Having heard from each of the Operator and the Transport Manager I am drawn to conclude as follows. Over the previous 18 months or so ‘post- Covid’ the Former Transport Manager had continued to perform his driving duties for the Operator as required but had committed less time to his duties as a Transport Manager at the Operating Centre. [REDACTED] Her response to DVSA on this issue (at page 76 of the Operator’s Brief) concludes:

‘In conclusion I would confirm that Mr Heslop’s sudden departure was a shock to us however it has made me realise that we placed too much trust in him to ensure all steps were being taken, however having you highlight the shortcomings has allowed us to focus more on ensuring new systems and processes are in place to ensure I am made aware of issues and that I should be more proactively involved in managing the transport manager in due course.’

There is a distinct conflict in the evidence of the Operator and Former Transport Manager as to the reasons for his eventual departure in January 2022.

[REDACTED]

In contrast, the Transport Manager submits that he had told the Operator that he would be resigning on 28 January because he did not have total control of the transport activities and compliance with the operator’s licence- and had been advised that he should resign as a transport manager in these circumstances. The Operator was seeking to reduce his hours, but he would still be completing the morning and afternoon school runs as a driver. He viewed this as an unacceptable reduction in his hours as a transport manager and states ‘bullying in the workplace’ prevented him from doing his job.

Of the two accounts, I am drawn to prefer that of the Operator to the effect that the Transport Manager was enabled to perform his role as he had full access to the maintenance records and drivers required to perform his duties with access to the director to discuss concerns. Notably, there is no record produced by the Former Transport Manager raising any concerns with the director in writing before or upon his resignation, including his concerns regarding any inability to conduct his role and any reduction in hours paid or required to act as the transport manager. Such concern has only been raised in writing in his representations to this Inquiry.

It certainly appears that the working relationship between the Operator, the workshop and the Transport Manager had irretrievably broken down over the previous 18 months before his impromptu departure from office on 28 January 2022. The Transport Manager has not acted in the manner I would have expected of him, with an absence of the written evidence expected of a professional transport manager, setting out his concerns to the Operator and actions required and then of his resignation when those concerns remained to be addressed satisfactorily. Likewise, by her own admission the Operator’s director failed to appropriately address any concerns as to his performance as a transport manager and to address the issue of the hours spent in the office in a timely and appropriate manner. I would have expected there to be a clear recorded disciplinary process with records addressing performance concerns and actions following. For example, the director explained that she had repeatedly asked the Transport Manager to complete a pro forma PMI report sheet review form provided by the transport consultancy (a comprehensive record that would, if used correctly, have identified the deficiencies in maintenance record keeping and in the quality of driver walk round checks found by the DVSA VE). The Former Transport failed to do this, without reasonable explanation, but this was not resolved by the Operator, which has ultimate responsibility for compliance and oversight of the Transport Manager. The position is unsatisfactory from both sides.

This is not a case however absent a number of positive features. The concern remains however that, despite obvious improvements from previous investigations, shortcomings and improvements required have still been found on the latest DVSA investigation despite the extensive previous compliance history and history of formal warnings, repeated DVSA visits with education and guidance, training required of the Operator and Transport Manager and the reliance on promises made in response to DVSA investigations and the regulatory oversight from the Traffic Commissioner.

The Operator has a sole director, Ms. Tracy Thorpe, for whom this is her sole directorship. Ms. Thorpe has some 26 years of experience of operating PSV. She was previously listed on licence PB0003691 (Tracy Thorpe) until the licence was surrendered on 27 August 2009. That licence had a mixed history of compliance, being issued a warning letter in 2004, and being called to PI in 2009. This operator licence, that followed, has a poor history of compliance, having had five regulatory interventions by the Traffic Commissioner since grant of the licence. In 2011 a strong warning letter was issued as a bus operated on the licence was found to be carrying passengers beyond its capacity, leading to one passenger being forced to sit on the floor. In 2012 another warning letter was issued, this time because of an unsatisfactory maintenance investigation. In 2017 the Operator was called to a preliminary hearing following an ‘S’ marked prohibition, leading to a third warning letter with undertakings attached to the licence, then in 2018 the Operator was called to Public Inquiry, the result of that being a fourth warning letter, and two additional undertakings added to the licence. Finally, in 2020, the Operator was sent the fifth (and up to today final) warning letter, this time because of its failure to adhere to a finance undertaking.

By her own admission, the director of the Operator failed to oversee and manage the Transport Manager appropriately. The Operator can be taken to be aware of the various guidance documents issued on behalf of the Senior Traffic Commissioner (STC) (see 2012/030 M G M Haulage & Recycling Ltd). This will Include STC Statutory Document number 3 on Transport Managers. The guidance in that document reminds operators that is incumbent upon the operator to ensure that any appointed transport manager has the continuing ability and determination to give full and practical application to the statutory duties (see 2000/018 Euroline Transport Ltd and 2008/315 L C Mistry). An operator must supervise and monitor the actions of a transport manager (see 1999/L56 Alison Jones trading as Jones Motors). The ultimate responsibility for supervising maintenance compliance rests on the operator.

In considering what regulatory action, if any, may be appropriate on this occasion, I have taken account of the evidence given at Inquiry as to the effect of regulatory action beyond a formal warning. I conclude that action beyond a warning must be considered as the previous five formal warnings have still not operated to concentrate the mind and attitude of this operator to achieve and maintain satisfactory compliance on an ongoing basis across all areas of its operation, with timely proactive actions taken to address apparent problems that may affect compliance and to have appropriate oversight of the transport management function.

I find the case falls into the ‘severe to serious’ category for the purposes of the guidance provided in Annex D of STC Statutory Document Number 10 on the Principles of Decision Making and the Concept of Proportionality – as the relevant conduct falls into the category of ‘Persistent operator licence failures with inadequate response or previous public inquiry history’.

I note the following positive features which have been considered in the balance before determining the appropriate action:

• Safety inspections were being carried out by Heathline Commercials the stated maintainer, with KJS (North East Coach Travel) carrying out brake tests on all the vehicles. Records used were found to be suitable.
• There was evidence of a wheel security system and a tyre management system and a VOR system (albeit all were deemed in need of some improvement)
• Safety Inspection intervals have not been exceeded and weekly tyre tread measurement records have been kept
• A forward planning system was in use
• The PSV incident report was being used
• 3 vehicles were inspected at the unannounced fleet investigation and were all found to be free of prohibitable defects (although 3 inspection notices were issued)
• Vehicle emission maintenance and monitoring was satisfactory
• No prohibitions had been issued during the sample period
• Whilst the undertaking to change tyres at no less than 3mm had been breached there is no evidence of tyres being used beyond the minimum legal limit
• The annual test pass rate had improved since the failure of vehicle NK14 WBJ on 16 February 2021, particularly since the change in workshop staff in November 2021, with a 100% first time pass rate for vehicles presented in 2022.
• The Operator responded in detail to DVSA concerning the shortcomings found and cooperated with the DVSA investigation and the Inquiry process
• Changes have apparently been made between the last DVSA visit and Inquiry, designed to ensure compliance, including the re-introduction of regular consultancy support and review and the appointment of a new transport manager collaborating with the consultant to achieve the improvements required. The changes include, recorded: driver training on walk round checks, safety inspection record interrogation and management of maintenance records received and stored, to prevent missing records, driver and vehicle gate checks, regular laden roller brake testing (RBT) with decelerometer testing on occasions when a RBT is not carried out, reinforcement of the tyre replacement policy, increased monitoring of annual test pass rates, regular re-torquing of wheel nuts
• The Operator demonstrated that it met the requirements of financial standing at the Inquiry.

On balance, I determine the order as in paragraph 1 above to be appropriate and proportionate in this case for the Operator, relying on all undertakings given by the Operator including the additional undertakings set out in paragraph 2. I have included by my paragraph 3 an amendment to the 2017 wheel and tyre management and records undertaking to reflect the latest evidence before me and reducing the minimum applicable tread depth as provided. (This undertaking can be further reviewed, on application, if the annual test history continues to be maintained at the improved levels on a sustained ongoing basis and the independent audit is positive on the systems and records for wheel and tyre management and the effectiveness of these).

As pointed out above, this is not a case absent positive features, also considered in relation to the Former Transport Manager as far as these relate to the period to 28 January 2022. Improvements have been made during his period of tenure, however the shortcomings found by DVSA have been attributed to a lack of oversight by the Former Transport Manager. He submits that he has been made a ‘scapegoat’ for the issues found. The fact remains however that he had access to all the records and the failings are fairly attributable to a lack of oversight on his part of the records (or failure to resign in writing with reasons if he felt unable to exercise that oversight for any reason and the Operator overrode any concerns expressed by him). If a transport manager finds them-self overridden by the operator or their agent to the point at which the transport manager no longer has the requisite continuous and effective responsibility, the transport manager must first notify the operator in writing and then, if the matter is not resolved, is expected to take appropriate action (see 2003/258 J D Cowan & A Fenny). In certain cases, this may even include resignation, rather than remain nominated and attempt to carry on their duties when being expressly prevented from doing so by their employer.

The Transport Manager has also produced a limited audit of the maintenance and drivers’ hours/WTD arrangements in place with the Operator trading as TM Travel carried out on 23 June 2022. The audit opinion was mostly satisfactory, although 3 recommendations were made which I would have expected to have already been implemented by the Former Transport Manager. I trust him to have ensured those matters were addressed promptly.

On balance I consider the order as made in paragraph 4 to be appropriate in relation to the Former Transport Manager.

Fiona Harrington, LL. B (Hons), Solicitor

Deputy Traffic Commissioner

North East of England

5 September 2022