Decision

Decision for Kessingland Kabs Ltd (PF1141943) and Stephen Paul Fisher – former Transport Manager

Published 8 October 2020

In the Eastern Traffic Area.

Confirmation of the Traffic Commissioner’s decision.

1. Background

Kessingland Kabs Ltd, trading as Xscape Taxis, holds a Standard International Public Service Vehicle Operator’s Licence authorising 5 vehicles. It has four Directors: Michael Arthur Sutton, Fiona Smart, Hayley Sutton, Carole Anne Sutton. The nominated Transport Manager was Stephen Paul Fisher from his appointment on 18 April 2016 to his resignation on 30 June 2020.

There is one Operating Centre at 5 Pinbush Close, Lowestoft NR33 7NN. The nominated maintenance contractors on the licence record are L G Perfect and Richard Murray Commercial, who I was told were inspecting vehicles at 6-weekly intervals. In fact, the operator changed contractor without notifying me.

The operator is engaged in school contracts and private hire.

2. Hearing

The Public Inquiry was initially listed for 22 April 2020 but was postponed due to the pandemic. It took place today, 15 July 2020 at 2.00 pm, in Tribunal Room 1 of the Office of the Traffic Commissioner, Cambridge.

The operator was present in the form of a Director, Michael Sutton, who was accompanied by Aaron Smart.

Mr Fisher did not attend. On the basis of a letter received on 7 July 2020, I was satisfied that there was good service and, due to a further communication, I should proceed in absence.

3. Issues

The public inquiry was called for me to consider whether there were grounds for me to intervene in respect of this licence and specifically by reference to the following sections of the Public Passenger Vehicles Act 1981:

• Section 17 (3)(a) statement of intent regarding preventative maintenance intervals and the contractor,
• section 17 (3)(aa) undertakings to ensure that vehicles are kept in a fit and serviceable condition, for drivers to report promptly any defects in writing, that maintenance records would be completed, kept for 15 months and made available upon request
• section 17 (3)(c) prohibitions
• section 17 (3)(e) material change in any of the circumstances relevant to the grant:
• section 17 (1)(a) repute, financial standing and professional competence.
• section 28 disqualification.

On application in advance of the hearing, I already determined that Mr Fisher had resigned and granted a Period of Grace to the Hearing. It remained for me to determine whether I should prevent Mr Fisher from relying on his CPC under section 17(1)(b) by reference to Schedule 3 and Article 4 of Regulation (EC) 1071/2009.

4. Summary of Evidence

On 5 July 2019, vehicle S168BLG was issued with an Immediate S marked Prohibition Notice for: Suspension holding down bolts/nuts, insecure. Axle moving relative to suspension unit, offside, axle 2. 2 of 2 U bolts moved by hand.

That resulted in a follow up investigation by DVSA on 12 December 2019, conducted by Vehicle Examiner, Andrew Purdy. Mr. Michael Sutton was present on that occasion. Mr Purdy returned by prior arrangement, in order to see both Mr Sutton and the Transport Manager, Mr Fisher.

In the course of the investigation, Mr Purdy checked the vehicle inspection records, preventative maintenance systems and maintenance arrangements. He was not satisfied with the results and marked the outcome as unsatisfactory. The operator was put on notice of his concerns that:

• the Transport Manager was unable to demonstrate development, so as to meet the statutory duty for continuous and effective management.
• inspection records were not properly completed.
• inspection intervals had been stretched
• Driver defect reports did not show defects as rectified.
• a different maintenance contractor was being used.
• prohibition suggested a significant failure in maintenance.

Mr Purdy considered a quantity of preventative maintenance inspection reports. He found that many had defects listed that were not shown as rectified. He noted that reports had not been signed and dated to declare vehicles to be in a safe and roadworthy condition on many occasions. He was concerned to note that where brakes were inspected this relied on decelerometer brake tests rather than full rolling road tests of brake performance.

Mr Purdy went on to note that, whilst the stated inspection intervals are six weekly, this had been stretched up to eighteen weeks; of the fourteen inspections, he found that the operator had exceeded the stated interval by more than one week on nine separate occasions. At the time the S marked prohibition was issued, the vehicle had exceeded its inspection interval by over one month.

My consideration of the inspection records confirmed Mr Purdy’s findings and indicated that this approach had been allowed to continue even after the visit by DVSA. Mr Sutton was unable to tell me how the new contractor was inspecting vehicles. I noted that he used a photocopy of the sample form from a version of the Guide to Maintaining Roadworthiness. The contractor could not even record the name of the operator correctly. Even where there were three percentage readings for brake performance there was no print-out attached. I noticed that there were a number of driver detectable defects being left to the inspections, even for the vehicle driven by Mr Sutton. When I asked to see the driver defect report, the operator was unable to produce them. The operator had already realised the weaknesses in the system and had abandoned the weekly driver defect sheet introduced by Mr Fisher, in favour of a daily record.

The undated letter from Mr Fisher, which was received on the 7th July 2020, notified me that he would not attend the hearing. The letter contained a number of admissions but, in his own words, he could give no reasonable excuse or explanation for the shortcomings identified by Mr Purdy. He accepted that a transport manager has responsibility for ensuring compliance and yet relied on other staff to ensure that vehicles were presented for inspection and that all necessary work was completed. His checks apparently extended to verbal confirmation. He recognised that this was not sufficient.

He referred to changing the systems to ensure that he also received a copy of the documentation from the maintenance contractor. I would have thought that should have been obvious from the outset. He apparently relied on the fact that other staff understood the severity and importance of the process required under the operator’s licence.

It emerged during the hearing that Mr Fisher attended the Operating Centre in March 2020 and before that for the VE’s visit in December 2019. He had not identified any of the deficiencies to which I referred the operator during the course of the hearing. I did not understand why the operator had not overseen the Transport Manager. It was only through my questioning that I then found out that the arrangement with Mr Fisher was, at best, informal. He was given gifts, the odd £500 to go on holiday, or a laptop to use in conjunction with his Transport Manager duties. There was no real genuine link with him. In those circumstances it is perhaps not surprising that he did not exercise the level of scrutiny required in order to meet the statutory duty. He may not have been only a name on the licence, but compliance was little better from his involvement with the inspection of the records.

5. Determination

I am satisfied to the civil standard that there have been breaches of the Operator Licence requirements such that support adverse findings under section 17(3)(a), (aa), and (c). There is no Transport Manager in place and there has been no attempt to recruit a replacement, pending the outcome of the Public Inquiry. I confirm the adverse finding under section 17(1)(a).

I turn to the application of Regulation (EC) 1071/2009. The recitals explain the intention to ensure common rules. Those rules are judged to be in the interests of fair competition. It is the responsibility of the Member State of establishment to verify that an undertaking satisfies at all times the conditions laid down in this Regulation so that the competent authorities of that Member State are able, if necessary, to decide to suspend or withdraw the authorisations which allow that undertaking to operate on the market. Recital 12 calls for road transport that is fully compliant with the rules for a uniform level of monitoring. Article 13 establishes the process, whilst Article 13.2 allows for discretion, but where the competent authority establishes that the undertaking no longer satisfies one of more of the requirements laid down in Article 3, in this case professional competence, it shall suspend or withdraw the authorisation.

Mr Fisher asks me to accept that he can meet the high standards, which he fell below. In further correspondence he asserted that he is capable of meeting the standards expected of a transport manager. He also referred to being ashamed, embarrassed and frustrated. He should be. He has apparently reflected on the shortcomings set out in the Public Inquiry bundle and concluded that it was only appropriate for him to step down. He also informed me that he no longer intends to take any role within the transport industry following this experience. That being the case it is not necessary to make a formal disqualification. I take him at his word, but if he were to apply to be added to a licence in the future, that application will need to be referred to a Traffic Commissioner to consider at a hearing and in the context of these adverse findings.

Correspondence was received from the operator during lockdown, which included photographs of vehicles which were stood up, the forward planner, an email regarding a prohibition, a copy of the TEVR dated January 2020, maintenance records and financial evidence. I have seen other evidence that there has been little/no operation, with employees on the furlough scheme. It is the operator’s hope to be in a position to service its school contracts from the start of the new school year. In order to do so, it will need to be in a position to meet the obligations on the Operators’ licence.

On the current deficiencies, when I pose the question suggested by the Upper Tribunal in 2009/225 Priority Freight, namely how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime the prospect is not encouraging. The operator has not had the benefit of an effective Transport Manager for some time. I was misled by those arrangements, but I attribute this to ignorance on the part of the operator. However, I now need to intervene to prompt the action necessary to comply in the future. That intervention is intended to reassure other operators that these shortcomings are not acceptable and to act as a deterrent to the operator. The Operator’s Licence is suspended until such time as the operator can satisfy me that it has in place:

• a qualified CPC holder who is under contract (for reasonable pay) to the operator. The operator was directed to paragraph 54 of Statutory Document No. 3 on Transport Manager duties;
• effective maintenance arrangements with access to a roller brake tester, to be utilised at every Preventative Maintenance Inspection, with vehicles having been the subject of a PMI in advance of going back into service;
• at least one Director to have attended Operator Licence Awareness training (which can be completed on-line), with proof of attendance lodged with OTC.

In addition, I have accepted an undertaking that the driver defect reporting system will rely on duplicate daily books and that there will be a further finance review 4 months from the date at which I am put in a position to lift the suspension.

RT/TC/15/7/20