Decision

Decision for Millmans Coaches Ltd t/a Grey Cars (PH1005196) & Paul Mark Hamlyn-White (Transport Manager)

Updated 23 November 2023

0.1 In the Western Traffic Area

1. Written Decision of the Traffic Commissioner

1.1 Millmans Coaches Ltd t/a Grey Cars (PH1005196) & Paul Mark Hamlyn-White (Transport Manager)

2. BACKGROUND

Millmans Coaches Ltd is the holder of a standard international public service vehicle operator’s licence authorising the use of twenty vehicles from an operating centre at Wentworth Road, Heathfield, Devon. This licence started in August 2002. The transport manager is Paul Mark Hamlyn-White. This licence was granted following the revocation of another licence held by the company in 2002.

The operator’s vehicles have incurred multiple prohibitions over recent years. In April 2021, it appeared before me at a preliminary hearing due to an adverse DVSA maintenance report. The decision letter, at page 124 of my bundle, indicates that the business had been deeply disturbed by the pandemic. That is no surprise as it is almost entirely a home-to-school operation. I recorded an undertaking in relation to finance and the following:

“A roller brake test will be undertaken in relation to at least every other preventative maintenance inspection.”

It appears from the papers that DVSA were caused to conduct a further investigation in August 2022 following three prohibitions issued to vehicles which had been presented for their annual MOT:

26 Feb 2021	DA52YGV was prohibited because axle 2 near-side suspension holding down bolt was missing with obvious signs of axle movement. It is not clear whether this defect was known by me when I saw the company in April 2021.
1 Nov 2021	GN05LMV was presented for MOT with a steer axle tyre that was more than 10 years old. Tyres over ten years old were banned from steer axles from 1 February 2021. The change in the law was initiated by a crash in 2013 when 3 people died on the A3 returning from a music festival after an old tyre blew-out and the driver lost control. It was accompanied by much publicity.
23 Feb 2022	DA52YGV had a positive hydraulic leak of brake fluid even without the brake applied

The outcome of the investigation was “unsatisfactory”. As well as the prohibitions issued at annual test, vehicle YN53CSY was issued with an immediate prohibition on 14 September 2021 because the brake fluid reservoir was empty. The MOT pass rate was 50% against a national average of 91%. I was told that Mr Hamlyn-White had been too busy to complete the inspection reports contemporaneously and they hadn’t been completed since March 2022. Roller brake tests had not been conducted in line with the undertaking. A further two vehicles were issued with immediate prohibitions during the fleet check. The examiner noted that the deficiencies were very similar to those which caused me to call the company to the preliminary hearing in 2021.

These reported shortcomings caused me to call the operator to public inquiry in the following:

Under Section 17(1)(a) that the holder of the licence may no longer satisfy the requirements of Section 14ZA(2), namely that the licence holder no longer meets the requirement of:

• Section 14ZA(2)(a) to have an effective and stable establishment in Great Britain (as determined in accordance with Article 5 of the 2009 Regulation),

• Section 14ZA(2)(b) to be of good repute (as determined in accordance with paragraphs 1 to 5 of Schedule 3 of the Act),

• Section 14ZA(2)(c) to be of the appropriate financial standing (as determined in accordance with Article 7 of the 2009 Regulation),

• Section 14ZA(2)(d) to be professionally competent (as determined in accordance with paragraphs 3 to 7 of Schedule 3 of the Act).

Under Section 17(1)(b) of the Act and Section 14ZA(3) of the Act, that the nominated transport manager may not be exercising continuous and effective management of the transport operations;

Under Section 17(3)(a) of the 1981 Act, of the 1981 Act, that any statement of intent recorded in the licence has not been fulfilled, specifically:

• that vehicles would be inspected at 4-week intervals;

Under Section 17(3)(aa) of the 1981 Act, of the 1981 Act, that any undertaking recorded in the licence has not been fulfilled, specifically:

• that vehicles would be kept fit and serviceable

• that drivers would report defects

• that maintenance records would be kept for fifteen months

Mr Hamlyn-White was called separately to consider his good repute and professional competence as transport manager.

3. THE PUBLIC INQUIRY

Mrs Diane Millman and Mr Paul Hamlyn-White attended the inquiry represented by Andrew Banks, Stone King solicitors. Compliance documents were provided in advance along with written submissions. Proceedings were recorded and I do not recount the full evidence here.

Finances were considered as a preliminary matter. Mrs Millman asked to reduce authority to seventeen vehicles and thus it was satisfied. I note that only fourteen vehicles were in possession.

Mrs Millman adopted her statement. She told me that she had been in the business since 1991 but more in an administrative capacity. It was only after her husband’s death that she took on a wider role; he had died in May 2020. She was attending an operator licence training course the following week. She had realised that her experience on the operational side was not as good as it could be.

The easier option might have been to close the business in 2020 but she felt an obligation towards her staff and towards Devon Council. There was a real shortfall in service providers in the region.

The company had issues with attracting and retaining skilled technical staff. One technician, Paul Marshall, had left in April 2022. Mr Hamlyn-White took on the inspections. With hindsight, juggling the engineering and operations roles was too much and she should have brought in another transport manager. They should have considered outsourcing the maintenance. They now had Alex Hamilton, a driver, assisting with inspections and the paperwork. They had invested in new vehicles. Mr Hamlyn-White had completed the Irtec course the previous day.

Technician Martin Janes had a light vehicle background. He had worked for a local grounds maintenance company looking after vans and pick-ups. I asked about the replacement vehicles and Mrs Millman accepted that they were still relatively old, ranging from 1999 to 2009.

Paul Hamlyn-White told me that he had been a driver. He had worked alongside Mr Millman in the workshop. He had attended a three day basic inspection course in 2015 and refreshed it over the previous days. He hadn’t been able to get the bookings for the roller brake testing. They had now moved to Adams Morey. Taking on the maintenance himself was “foolish” and “unwise”. That would not happen again.

I asked about the prohibitions incurred at annual test. The missing U-bolt on DA52YGV in February 2021 had been fine when it was inspected and must have sheared on the way to test. His technician, Mr Shepherd had provided that explanation. Mr Hamlyn-White thought that it may have been loose.

The old tyre on the steer axle of GN05LMV had been the technician’s error using the spare wheel from the back of the vehicle following a puncture without checking whether it was fit for service, symptomatic of Kevin Shepherd’s falling standards. When Mrs Millman challenged him, he resigned on the spot. Mr Hamlyn-White told me that they now recorded tyre age during an inspection. It had always been the way that only new tyres were used on front wheels.

DA52YGV had been prepared for MOT in 2022 by Paul Marshall. Mr Marshall’s background had been working for the RAC. He had been booked on an Irtec course in February 2022 but it had been cancelled as other course members had Covid. It had not been rebooked. The vehicle had failed on brake systems and components, headlamp aim, chassis condition, exhaust emissions and the exhaust system. I was told that Mr Marshall had been insistent that he knew what he was doing. Following the failure, the vehicle had then been scrapped. The prohibition had been for a positive hydraulic fluid leak.

I asked then about the fleet inspection. A tyre on WX03YEK had been prohibited for splits in the tread with cords exposed caused by having been recut too deep. That again was Mr Marshall’s fault. The policy was not to recut minibus tyres. He had recut it without Mr Hamlyn-White’s knowledge.

YJ53CFM had not been used since the end of the school term. They were aware that there were some seatbelt faults. It would have been inspected and put right before the start of the new term. I suggested that the vehicle was likely to have been in service with broken seatbelts. Mr Hamlyn-White said that was not the case. They had been damaged on the vehicle’s very last journey of the term along with other damage to the window surround and the carpet.

YN53CSY had been prohibited on 29 September 2022 because of a piece broken from the ring-eye end of the spring. The vehicle was used on a very rough route across Dartmoor.

The driver of WX03YEK hit a wall on the morning of 13 October 2022 just before DVSA inspected the vehicle at a school and prohibited it for an exterior body panel likely to detach, an exterior body panel damaged and likely to cause injury and for a fuel leak, which Mr Hamlyn-White described as seepage from an injector pipe that was a quarter turn loose.

On 28 October 2022, Kevin Northam prepared VU06KDV for MOT. It was prohibited for a positive hydraulic leak. Mr Hamlyn-White told me this was seepage from a banjo bolt at the back of a calliper which he believed was caused by the rubber brake pipe flexing as the chassis moved causing wear. It was a tiny amount of brake fluid and Mr Hamlyn-White had not himself prepared the vehicle.

I asked about an incident referred to by the Examiner of a serious leakage of diesel causing the council to need to re-surface 100m of road. I was told that one of three fuel tanks had been removed from a Volvo coach. Then something in the road struck one of the remaining fuel tanks causing it to twist to the extent that diesel was pouring out of the filler neck which had been dislodged. The incident had not been notified to DVSA so they had not inspected the vehicle.

I challenged Mr Hamlyn-White on the appropriateness of him undertaking the “head of engineering” role when his qualification was a three-day course. I asked him about some of the investigations he had undertaken on front-axle brake imbalance. He told me that he had been told to investigate anything more than 30%. I pointed out that, on almost all occasions, both front wheels had locked so there was nothing anyone could do to get more effort out of a brake; the limiting factor was the friction between tyre and roller. Mr Hamlyn-White simply did not understand the basic physics.

4. Closing submissions

Mr Banks told me that it was accepted that, in August 2022, the business had been in a state of flux. It had been naïve and a poor decision for the transport manager to undertake the maintenance. There had been other options such as retain another transport manager or sub-contract the work.

There had been training. Mr Janes had been booked to attend the Irtec course but had been unable to (I was told why and fully accept that explanation). The newer vehicles were accepted to still be of a considerable age. They were prepared to install their own roller brake tester and had a quote. The systems were now much better. There would be further training including on how to read a brake test printout. The operator was willing to take advice and act upon it. The operator had good intentions.

Was this an operator I could trust to be compliant in the future? Given everything that had been done since August 2022, the answer had to be in the affirmative. They would provide an undertaking for further investment in training and to recruit a properly qualified person in time. It had proved impossible to get an expert in PSV engineering and it had not been for want of trying.

Was this an operator that deserved to be put out of business? It had been in business in one form or another for 110 years. It had a number of employees. The transport manager accepted that the failings had arisen on his watch.

Revocation of the licence would close the business and have an adverse impact on the local community. A suspension would be survivable if at a weekend or over Easter. There was no intention to grow the business so a curtailment to sixteen would be survivable.

I pointed out that I seemed to be being told that any meaningful regulatory action would end the business and so I could not distinguish impact between a curtailment that affected the operational fleet to some extent and revocation. Mr Banks took some time to take instructions on that but Mrs Millman was adamant that anything fewer than an authority of sixteen would leave the business unviable.

I was offered an undertaking that a suitably qualified external supervisor would attend once a week to oversee maintenance.

5. CONSIDERATION AND FINDINGS OF FACT

The Vehicle Examiner reports that the operator had a 50% prohibition rate at the roadside between 12 January 2021 and 4 August 2022. Since that visit, there have been five further roadside encounters of which two have resulted in immediate prohibitions being issued. Since the preliminary hearing in March 2021, of eight vehicles seen at the roadside, or at a school check, four have been so dangerous that they have received immediate prohibitions. The defects include, in September 2021, a hydraulic brake reservoir that no brake fluid in it at all. Not below the minimum, but empty entirely. Catastrophic brake failure was imminent. One imagines that there was a warning lamp on the dashboard but I can’t remember whether that was a requirement in 2003 when that vehicle was built. In August 2022, a door sensitive edge was not working which could easily lead to a serious injury for a child.

Not one vehicle encountered has been clear of defects. At the fleet-check on 4 August 2022, MX11EVM had an engine malfunction indicator lamp illuminated, on 7 December 2021, DA52YGV had a headlamp out; it wasn’t prohibited only because it was daylight but it must surely be likely that, in December, it was dark at the start of the shift.

The MOT history is worse still. Since the last preliminary hearing, there have been twenty presentations for annual test. Just four have been clear passes. Seven passed with advisory items. To give that some flavour, P504VUS “passed” on 21 May 2021 with advice on the poor but legal condition of the body exterior, electrical wiring, steering, brake systems & components and indicators & hazard warning. I remind myself that the MOT is the minimum standard and that an operator is required to keep vehicles fit and serviceable, a significantly higher standard such that the statutory minimum is never reached.

So I have no trouble in finding that Section 17(3)(aa) is made out in that vehicles most certainly have not been kept fit and serviceable. I attach significant weight. The failure to conduct brake tests as promised is a further aggravating feature.

As to the other Section 17(3)(aa) matters, well Mr Hamlyn-White was just too busy to fill out inspection records from March to August 2022. He did create them after the event when requested by the Vehicle Examiner. If they hadn’t been produced, they obviously hadn’t been kept. On the most part, the prohibited defects were of major mechanical matters that may not have been obvious to a driver but issues such as a dry brake reservoir, non-recycling entrance door and headlamp out were. So I find that all Section 17(3)(aa) matters are made out.

With inspection reports not having been completed temporaneously, it is not that easy to tell whether the inspections were carried out on time. However, Vehicle Examiner Williams has done his best and concluded that 28% were overdue. That may well be overstating it if other inspections occurred but were not recorded but it is what the records show. So Section 17(3)(a) is made out but, given the state of the vehicles, it is rather academic.

I turn now to consider the good repute of the operator and the transport manager. They are linked.

Having reviewed the evidence with care, and having listened to both operator and transport manager, the root cause of the appalling state of this fleet I find to be gross incompetence within the workshop. I was told that the problem was retaining suitably skilled technicians. That may well be true. There can be few competent technicians who would want the challenge of maintaining such an elderly fleet and being associated with the MOT and roadside performance of it.

Mr Hamlyn-White decided to take on the mantle. His qualifications? A driving licence, a three-day basic inspection course and some time helping the former director in the workshop. That he has on numerous occasions dismantled a braking system and replaced seemingly perfectly good parts to try to get more brake efficiency out of a brake that has already locked would be funny if it were not so serious. Brake chambers have been changed on the brake with the higher reading, a compressor pipe is changed to try to improve brake effort, slack adjusters are changed on wheels that have locked. What a waste of time and money. He simply has no underlying mechanical knowledge nor an ability to apply simple GCSE physics. It is the equivalent to attending a three-day first aid course and then seeking to practice as a qualified nurse. It is reckless in the extreme and the outcome is clear to see.

His lack of understanding is further illustrated by his explanation of the immediate prohibition issued to WX03YEK for a defective tyre, having been recut too deep and exposing the cords. He told me that he had previously inspected that tyre in its recut state and the defect wasn’t there; it had only been exposed by further wear. The point is that the tyre had been recut in that the grooves had been made deeper, exposing the cords at the base of the groove. Any wear would be to the crown of the tread, not to the base of the groove. The defect will have been present when Mr Hamlyn-White inspected it. He had clearly failed to identify it. More importantly, as transport manager, he simply did not understand what the defect was and how it had been caused.

One of the operator’s vehicles was involved in a serious incident on 12 July 2022 when a diesel spillage caused a major road to be closed and 100 metres of roadway to be resurfaced. The operator failed to report the incident. Section 20 of the Act states the following

(1) It shall be the duty of the holder of a PSV operator’s licence, on the happening to any public service vehicle owned by him of any failure or damage of a nature calculated to affect the safety of occupants of the public service vehicle or of persons using the road, to report the matter as soon as is practicable to the Secretary of State

The guidance on the gov.uk assists further:

By law, you must report:

• fatalities

• serious injuries (such as broken bones, damage to major organs or overnight hospitalisation)

• allegations of a safety defect

• serious damage as a result of the incident (such as major body or mechanical component damage, which needs specialist recovery and the vehicle being taken out of service to be repaired)

• a safety critical component failure or history of the same component failing

• a vehicle catching fire

I consider that the displacement of a fuel tank leading to 100 metres of road needing to be resurfaced would fall within the fourth bullet point. DVSA updated the guidance with wide publicity in April 2021. As a result of the non-compliance with s.20 of the Act, no inspection of the subject vehicle by DVSA took place. The purpose of the legislation was frustrated. The explanation given now by the operator and transport manager, that an item on the road caused a fuel tank to be dislodged, is fanciful. A full fuel tank will weigh something like 100 – 200kgs. What on earth could be thrown up from the road surface to dislodge it? It seems to me more likely than not that the diesel spillage was caused, or contributed to, by a defective vehicle in that the fuel tank retaining straps were compromised. I am offered no evidence either way but the operator failed to report it, so failed to tender its vehicle for inspection. It follows, I make the best conclusion I can on the available evidence and the notion that a 100 – 200kg fuel tank is dislodged by some road debris is tremendously difficult to accept. It is inevitable that I conclude it was dislodged because it was not properly secured. Poor workmanship again.

The recruitment of car and van mechanics to maintain a fleet of public service vehicles seems to have been done in desperation. It was nonetheless a reckless act on behalf of both operator and transport manager that has led to vehicles operating in a dangerous condition.

I must look for positives. Since the DVSA intervention, inspections appear to be broadly on time and the documentation generally sound. I did find some detail missing in the sample file I referred to in the hearing but it is the exception not the norm. An irtec course has been attended. The current technician would have attended at the same time but had very genuine reasons not to be able to do so. As at today, the systems are sound.

There has been a change in the fleet with five “new” vehicles. I attach limited weight to that as the newest vehicles bought are fourteen years old, the oldest twenty-four. It is not fleet modernisation in any meaningful sense.

In considering these positives, I remind myself of my decision from the preliminary hearing in March 2021

Transport Manager Mr Hamlyn-White has made significant improvements to the processes that were in place of the DVSA investigation. I accept that the dramatic fluctuations in the operator’s business brought about by Covid restrictions will have made management more challenging. A new management structure is now in place and I saw evidence of effective systems. Having recorded undertakings, I am content that the shortcomings identified by the DVSA investigation can be dealt with by issuing a formal warning.

So it seems that a call to a hearing does trigger compliance but, just five months after I saw the operator in 2021, one vehicle was encountered with a dry brake fluid reservoir and another failed the MOT for service brake operation, amongst other items. The improvement brought about by DVSA and TC interventions seems to be short lived.

It is unfortunate that Mrs Millman, even after I rose to allow her to take advice from her solicitor, insisted that any authorisation less than sixteen would make the business unviable. By reference to the Senior Traffic Commissioner’s Statutory Document No 10, due in large part to the reckless decision allowing Mr Hamlyn-White to be “fleet engineer” for an ageing 16 -vehicle fleet, I find this to be a case in the “severe” category. It requires that I take action that impacts on the operation. A suspension over a holiday or weekend is a pointless gesture. I may have been swayed to allow a small, that is, single-figure, authorisation to continue but Mrs Millman’s position is that any incursion in to the sixteen vehicles is fatal to the business.

So can I trust this operator to be compliant in the future? The historical evidence suggests that I cannot. The deficit in competence of those in control, particularly the transport manager, suggests that I cannot. The history since the DVSA intervention, including a vehicle failing the MOT for service brake performance, suggests that I cannot. Good intentions on their own are not enough to run a safe and compliant public service vehicle operation. I conclude that this is not an operator that I can trust to be compliant in the future.

So is it so bad that I need to put the operator out of business. I cannot allow a sixteen-vehicle operation to continue. The risk is simply too great. Every other vehicle inspected by DVSA whilst in service is so dangerous that an immediate prohibition is issued. Whilst the processes and paperwork have been bolstered since the Vehicle Examiner’s intervention, little has changed in on-road performance. How could it, when the person in charge of the fleet has no relevant qualification and demonstrated in the hearing a lack of even the most basic understanding of vehicle systems and the physics that lies behind them. This is an operation that, for the safety of schoolchildren in south Devon and other road users must be brought to an end. The good repute of the operator is lost.

Mr Hamlyn-White has a high opinion of his own competence. That opinion is misplaced. I find he is grossly incompetent within the workshop and grossly incompetent as transport manager in allowing those workshop arrangements to continue. His good repute as such is lost.

6. DECISIONS

Pursuant to an adverse finding under Section 17(3)(aa), that vehicles would be fit and serviceable, licence PH1005196 is revoked.

Pursuant to an adverse finding under Section 17(1)(a), that the licence holder is no longer of good repute, the licence is revoked.

Paul Hamlyn-White has lost his good repute as transport manager and is disqualified from acting as such for a period of one year and until he sits and passes again his transport manager certificate of professional competence.

Pursuant to Section 17(1)(b) of the Act, the licence is without professional competence and is revoked.

The orders for revocation will take effect from 23:29 hours on 31 March 2023.

Kevin Rooney

Traffic Commissioner

2 March 2023