Decision

Decision for Jackies Coaches Ltd (PH2060787) & Peter Allen: Transport Manager

Published 14 May 2024

0.1 In the Western Traffic Area

1. Written Decision of the Traffic Commissioner

2. Public Inquiry held on 20 March 2024 at Bristol

3. Operator: Jackies Coaches Ltd (PH2060787) & Peter Allen: Transport Manager

4. BACKGROUND

Jackies Coaches Ltd is the holder of a standard national public service vehicle operator’s licence authorising the use of four vehicles from an operating centre at The Old Airfield, Moreton Valance, Gloucester. The licence started on 28 December 2022. The directors are Duncan Pratt and Jacqueline Pratt. The transport manager until 1 January 2024 was Peter Allen. James Pratt was a director until 3 January 2024 and was a director for all the period of concern.

Duncan and Jacqueline previously held licence PH0005494 as a partnership until it was revoked on 3 January 2023. That licence was authorised for 12 vehicles until I curtailed it to 5 at a public inquiry in August 2022. I revoked it because of serious maintenance concerns. Duncan Pratt lost his good repute as transport manager. I indicated that an application for a smaller authority might succeed, hence this 4-vehicle licence was granted. From the papers, it appears that the intention at the time was for James to become the transport manager and to play a bigger role in the business.

DVSA Vehicle Examiner Daniel Field carried out a maintenance investigation on 15 November 2023. He found serious shortcomings with:

i. Inspection records;

ii. Transport manager control;

iii. Driver defect reporting;

iv. Inspection facilities and maintenance arrangements; and

v. Prohibitions having been issued.

The DVSA investigation appeared to trigger the resignations of James Pratt as director and Peter Allen as transport manager. In relation to the latter, the operator requested a period of grace in relation to professional competence which I granted on 18 January 2024 until 21 March 2024. An application was received to add Samual Steel as transport manager on 25 January 2024.

Gloucestershire County Council notified me on 1 February 2024 that the operator had not resumed operations following the Christmas break. The notification included a copy of a notice from the operator to parents saying that the decision had been made to close the company completely.

These reported shortcomings caused me to call the operator and transport manager to public inquiry.

Mr Allen was called separately to consider his good repute and professional competence as transport manager. Also called was driver Michael Ellis due to his involvement with a tyre prohibition.

5. THE PUBLIC INQUIRY

Jacqueline Pratt, Duncan Pratt and James Pratt attended for the operator represented by Laura Newton, solicitor, Smith Bowyer Clarke.  Compliance documents were provided in advance along with written submissions. Peter Allen and Michael Ellis attended unrepresented. Proceedings were recorded and I do not recount the full evidence here.

Mr Ellis’ driver conduct hearing was dealt with as a preliminary matter and Mr Ellis was issued a warning for failing to have conducted a walk-round check.

5.1 Opening submissions

Ms Newton referred me to the submissions on behalf of the company. She acknowledged that the position was not good following having been at public inquiry only just over a year ago. The issue was a poor maintenance provider and this was not an operator who had the technical competence to deal with that. The year had started fine and it wasn’t until September or October with MOT failures that DVSA started to take an interest. That should have started alarm bells, but the company had not been able to navigate the issues effectively. It was unfortunate for the operator that the transport manager took the position that he did. A slippage in PMIs was not the issue here. Both operator and transport manager had to be accountable. There had been no immediate alternative to the maintenance provider. The operator accepted that the licence needed to come to an end.

5.2 The evidence of Peter Allen, former Transport Manager

Mr Allen told me that he started in the industry in the mid-80s and had carried out most roles since. I asked about the MOT failure on B9AND which failed because a tyre had tread depth less than 1mm, a kinked brake pipe and a binding brake along with more minor defects. Mr Allen told me it was presented for PMI and the MOT was about a month later. He had left Duncan to deal with Cullimore’s as he relied on them. They had been looking for other maintenance providers but hadn’t found any suitable. Mr Allen didn’t want to sour the relationship with the service provider. He spent a lot of time looking for local service providers even if they could just do an inspection and not the repair. Local providers either didn’t have scope or were reluctant to be involved with Jackies. He had found Troopers Lodge which wasn’t ideal as it was an hour’s drive away.

Mr Allen felt that the vehicles were too old and too complex for the work they were doing. Referring to the MOT history, I asked why action had not been taken sooner. He had advised that the operator move to service buses which would be easier to maintain. The Levante in particular was getting damaged due to the roads it was operating on. He had advised against 4-weekly inspections as the company couldn’t keep up with that frequency as well as having work undertaken on repairs.

I asked about a prohibition issued on the fleet check for a door sensitive edge and why the driver had not identified it. Mr Allen didn’t know as he had turned up later in the day. I was surprised that a transport manager had not undertaken a full investigation, noting that the same defect was identified on a PMI two weeks earlier. It was accepted that his attendance had tailed-off in the autumn but he still spent four hours at a time on site.

Mr Allen had been aware of the previous public inquiry. He knew Jackies from having worked in the area. He knew that they had consultants in to try to sort out the office. They had worked well together in the early days. He did not want to put his other operators in jeopardy. Ultimately it had come down to the operator not having enough money.

Ms Newton asked whether Mr Allen had seen the written decision from the previous public inquiry which identified concerns. Mr Allen was aware, and had done some research. He knew about the revocation and the consultancy. He felt they could work together. With hindsight, maybe he should have looked the other way. He was aware that the 4-weekly inspection period had come from the previous inquiry but felt that 6 weeks would take the pressure off the finances.

He knew that Jackie’s Coaches could not afford to lose Cullimore’s. Other providers were unwilling to engage with them. Ms Newton asked whether he had ever offered to sit down with Cullimore’s? No. Mr Allen had spoken to Duncan who felt confident to deal with Cullimore’s by himself. He didn’t want to push any harder as if Cullimore’s cancelled the service contract, that would be the end of the business. But ultimately they were a lorry business and Jackie’s needed a coach one.

5.3 Evidence of Duncan Pratt

Mr Duncan Pratt adopted his statement. JC65BUS was presented for a PMI at Cullimore’s on 23 October 2023. In my bundle, I had seen a statement from a DVSA Vehicle Standards Assessor who had been on site conducting MOTs when he was asked by a Cullimore technician whether he could put a prohibition on the vehicle due to brake pads being worn down to the metal.

Mr Pratt had no indication pre-PMI of any defect with the brakes, no warning lights, no noise. On the previous PMI, all pads were at 7mm, all equal. Mr Pratt couldn’t understand why the mechanic had not gone to his boss but had gone to the DVSA man. When he collected the vehicle, he was told it needed some new pads and some other work. Cullimore’s couldn’t do it for a week and Jackies’ needed the vehicle back in service. He and his wife attended to collect the vehicle and were not made aware of the severity of the defects. I was referred to an email from Cullimore’s with the PMI which was sent at 15:24 on 23 October. That was the first time that day he had seen that record and that was after the vehicle had been collected. He would not have driven the vehicle if he had known that the pads were down to the metal.

I inquired as to the future plans for the company. I was told that there was no intention to continue and that the company would be wound up solvent.

Finally, I asked about the apparent failure to run scheduled services after Christmas 2023. Mr Pratt told me that he didn’t have a transport manager and no-one would let him know whether he had a period of grace so they felt that they could not operate. There was no other reason not to operate. They still had a week to get the vehicles inspected. They had written to Bristol and to Leeds and no-one answered. The only letter they had was one that said that they could run but without the Traffic Commissioner’s permission, they could not. Their transport manager wasn’t there to give advice.

The TM resignation was 31 December which triggered an automatic letter. There was an email sent to Leeds on 2 January. The period of grace was approved on 18 January.

I referred to the “last TM” letter which was sent on 2 January and noted that it said the operator had two weeks to respond. Mr Pratt referred to the third paragraph which said “the traffic commissioner considers that you no longer satisfy the requirement to be professionally competent”. He had taken that to mean that they could not operate.

In November 2023, when they had a prohibition on a vehicle, the school rang to say they could get the job covered for a week. Within six weeks, that operator wrote to parents to say that they were taking the work on permanently. That operator then took on the rest of the work. Jackies had been “stitched up”.

5.4 Evidence of James Pratt

James Pratt had been one of three directors with Jackies Coaches until his resignation on 3 January 2024. His role as director involved driving Monday to Friday, downloading tacho cards and vehicle units, uploading to Tachomaster, invoicing, dealing with parents. He was aware of his operator licence responsibility, he checked OCRS, he had a forward planner. He was currently studying for his CPC qualification and had an exam in April.

Up until the serious MOT failure in September, he was happy that the business was running compliantly. Vehicles were going in for PMIs on time. The TM wasn’t flagging any issues.

If he were to start a new business, he might look at smaller vehicles as it was easier to find maintenance providers for them. In relation to stopping the registered services, his understanding was that they had to stop operating until they got a period of grace. Everyone they spoke to said they had to apply for a period of grace. By the time the period of grace was granted, it was too late. All the services had ceased trading.

He had decided to resign in January as too much had gone on in the business. It was affecting the family relationship. He wanted to set up on his own and hold the reigns, have control. Harleys Executive Travel Ltd had been incorporated to have a minibus pretty much just for himself. He would wait until he passed the CPC before applying.

He had learned invaluable lessons from what had happened. A good relationship between operator and maintenance provider was key. He would have a second maintenance provider who could check on the first one. He wasn’t looking to run big coaches; smaller ones were financially more stable.

I referred Mr Pratt to correspondence between himself and Shaun Byard at Cullimore’s. It seemed to me that they had got behind with payments. That was accepted. I pointed to the fact that Jackies appeared to have chosen only to part-pay some of the bill. The email trail indicated to me a failure of the relationship. It was accepted that the relationship had worsened.

I took Mr Pratt to the correspondence trail between the operator and the OTC in relation to the loss of the transport manager. I pointed out that the last TM letter had been issued by Leeds on 2 January, as soon as the loss was notified. A period of grace was not requested until 15 January and the request was incomplete. The next correspondence was from a caseworker in Leeds dated 16 January which said “further to our telephone call today”. From that it seemed that my team had responded within hours but the operator had then taken thirteen days to respond. Mr Pratt had no response.

I closed the hearing and invited written representations on the issues of disqualification and any financial penalty.

5.5 Closing submissions

Written submissions on behalf of the operator were received on 27 March 2024. I summarise them here:

i. Lack of professional competence and financial standing are conceded.

ii. The operator had accepted the situation it was in and had ceased operating voluntarily. The outcome for the licence was inevitable but the operator and former director James Pratt attended nonetheless and were frank and open. Disqualification is an unnecessary step.

iii. In relation to the potential financial penalty, the transport manager had left without notice over the Christmas holiday period. The directors had found the “last transport manager” letter ambiguous.

iv. There is nothing within the last TM letter that says an operation can continue. The reply date appears to be one to avoid revocation of the licence. The directors’ understanding is plausible.

v. Despite efforts made by the operator and transport manager, there was no viable maintenance provider for the vehicles so they could not be operated in any case.

vi. The local authority appears to have provided alternative transport and there is little evidence of inconvenience.

vii. Since ceasing to operate, there is no income and no resources to pay a financial penalty. Due to lack of a maintenance provider and transport manager, there was a reasonable excuse for failing to operate the services.

6. CONSIDERATION AND FINDINGS OF FACT

The matters conceded by the operator are helpful. I confirm that I find as a fact that neither financial standing nor professional competence are satisfied and Section 17(1) is made out. Revocation is mandatory.

The annual test performance, with not one test resulting in a clear pass and the dire condition of B9AND in September 2023, cause me to find that vehicles have not been kept fit and serviceable. Section 17(3)(aa) is made out and I attach significant weight.

When individuals have been involved in two licences that are revoked on serious safety grounds in relative quick succession, consideration of disqualification is appropriate. In this case, I accept the persuasive arguments of Ms Newton. In simple terms, the operator knew the time had come and ceased operating of their own accord. Yet they showed their respect for the licensing system by investing in legal representation and attending the inquiry. This is not an operator for whom the regulatory regime means nothing and so I do not find any reason to take any further action to prevent re-entry. I make no orders of disqualification. Of course, that does not mean than new applications will not be subject to detailed scrutiny.

Should James Pratt seek to apply for his own licence, I suggest that such an application would be more likely to succeed if for a modest operation and for smaller vehicles than were in use here. The vehicles should also be appropriate for the work; an intercity express coach is not best suited to school runs in Gloucestershire, a point made by Mr Allen and with which I concur. I would also suggest that James Pratt join the Confederation of Passenger Transport and seek some experience in a management role in another operator, even if on a voluntary basis. But those are just suggestions. Any new application will be determined on its merits by whichever commissioner or deputy commissioner it comes before.

The operator ceased its operations with no notice to parents. Whilst Ms Newton may be right that inconvenience to parents and children was minimal, and I am far from convinced about that, that would have been as a result of the Council’s actions, not those of the operator.

The operator claims to have misunderstood the standard last transport manager letter. I reproduce the relevant extracts of the letter here:

In view of the evidence currently available, the traffic commissioner considers that you no longer satisfy the requirement to be professionally competent. In accordance with Regulation 9 of the Public Service Vehicle (Operator Licensing) Regulations 1995 I am serving notice that the traffic commissioner is considering the revocation of your operator’s licence on the grounds detailed above.

…

The traffic commissioner may consider granting a period of grace to enable you to find a replacement or whilst your nomination of a new transport manager is being considered and you should consider making such an application. Please note the traffic commissioner is not obliged to grant any such period and is unlikely to do so unless robust evidence of how the requirements will continue to be met is provided. An application for a period of grace must be made in writing and set out what you are doing to resolve the matter. Your application should also explain who will carry out the relevant responsibilities and provide details of their knowledge, skills and connection to the business. Guidance to request a period of grace for professional competence is attached at Annex B.

Professional competence is a continuing and mandatory requirement of holding a licence and is only met when a suitably qualified transport manager has been approved on a licence by the traffic commissioner.

…

PLEASE NOTE. A failure to respond to this letter within the stated deadline will result in the traffic commissioner revoking the licence. The revocation of the licence would render unlawful the operation of vehicles for which an operator’s licence is required.

Ms Newton submits that it is plausible that these passages be construed by an operator as requiring an immediate cessation of operations. I have checked with the licensing team and somewhere between 250 and 300 of these letters are sent out every month. It is an automated process triggered once the last, or only, transport manager is removed from a licence. The process has been in place for several years. Never before have I come across a case where an operator has taken the letter as directing an immediate cessation of operations. For PSV operators with registered services there would be a direct conflict in the requirement to give 70 days’ notice of service termination. That said, two directors were adamant that was their understanding.

Ms Newton also submits that the vehicles could not be used in any case because they had not been inspected. Duncan Pratt told me in evidence that he still had a week to have them inspected and that was not a reason not to operate. Whichever is true, an unroadworthy vehicle is not a reasonable excuse under the terms of the legislation. It may be a good reason not to operate, but it is not reasonable that matters get to that state.

Having not found reasonable excuse, and it being conceded that services did not operate, I find it appropriate to impose a penalty under Section 26 of the Transport Act 1985 and Section 155 of the Transport Act 2000. Those provisions were designed to discourage operators from walking away from their responsibilities to service users. The maximum amount is £550 per vehicle authorised, £2,200 in this case. I note in passing that the amount was set in 2000. The Bank of England inflation calculator shows that would equate to £3660 now but I must use the law as made.

In the positive, this was not a persistent case of failing to operate or not operating to time. I am considering a single case of an immediate and permanent cessation of services. The operator gave some, if minimal, notice to parents. I note what is said about the operator feeling obliged to cease services, but I attach little weight to that. For these reasons, I reduce the penalty by 50%. I impose a financial penalty under Section 155 of the Transport Act 2000 of £1100.

Finally, I turn to the role of Peter Allen as transport manager. Mr Allen is clearly a knowledgeable individual. In law, the transport manager is the person who “effectively and continuously manages the transport activities of the undertaking” (Article 4(1), EU Regulation 1071/2009 as adopted in UK law). It is evident from the condition of the vehicles that he failed to do that here. The role of an external transport manager is a difficult one, and a brave one as it entails putting a valuable qualification at risk. There are two strong negative features here. The first is the failure directly to intervene with the service provider. That is a key relationship for any operator and the transport manager should be at the heart of it. The second is the timing of resignation. Quite simply, it should have come far sooner.

Against that, Mr Allen was far from a transport manager in name only. He was engaged and active. He himself sees the engagement with this operator as a steep learning curve. I find his good repute is tarnished but not lost.

7. DECISIONS

Pursuant to Section 17(1)(a), lack of financial standing, the licence is revoked.

Pursuant to Section 17(1)(a), lack of professional competence, the licence is revoked.

Pursuant to Section 17(3)(aa), the vehicles were not kept fit and serviceable, the licence is revoked.

The operation has ceased so revocation has immediate effect.

Pursuant to a failure to operate services without having cancelled registration, pursuant to Section 26 of the Transport Act 1985 and Section 155 of the Transport Act 2000, I impose a financial penalty of £1100.

The good repute of transport manager Peter Allen is tarnished but not lost.

I make no orders for disqualification.

Kevin Rooney
Traffic Commissioner

25 April 2024