Decision

Decision for North Dorset Community Accessible Transport (Nordcat)

Published 14 April 2023

0.1 In the Western Traffic Area

1. Written Decision of the Traffic Commissioner

1.1 North Dorset Community Accessible Transport (Nordcat)

2. BACKGROUND

North Dorset Community Accessible Transport is a limited company which benefits from the “limited” exemption. It is registered at Companies House with company number 04285092. It is a registered charity with charity number 1088567. It has a wholly owned subsidiary Nordcat Services Limited, company number 05559614. Both companies are shown as active at Companies House.

The operator was called to a preliminary hearing in November 2020 following a DVSA maintenance investigation which found systems lacking. My decision in that case is at annexe 1. I had identified at that hearing that the operator was involved in a substantial home-to-school (“H2S”) contract that seemed to form potentially a significant part of the operation. I urged the operator to take legal advice. I produced my written reasons solely to support Ms Evans in her discussions with the trustees that such advice was necessary. The maintenance concerns were addressed by statements of intent that, were this a PSV operator’s licence, I would normally record formally on the licence record. No such facility exists for permit operations and I took Ms Reed at her word. I was told that a decelerometer had been purchased and would be used at every inspection thereafter, that Ms Reed would attend a passenger operator licence awareness course and that the apprenticed technician would undergo relevant training on inspection procedures. Ms Reed subsequently provided evidence of her attendance at the training course.

DVSA Vehicle Examiner John Foster conducted a maintenance investigation on 9 August 2022 and found the following shortcomings:

• No evidence of a safety defect and recall system

• No evidence of brake tests completed at PMI

• Difficult to establish how effective driver defect reporting system is

• MOT failure rate at 76.6%

• Vehicles presented for test with obvious failure items

• Ineffective system of wheel security and tyre management

• Prohibition received at annual test for several defects on DY07OBL

• Not established who makes the decision to take a vehicle out of service

The operator responded to the Examiner but VE Foster concluded that there was more still to be done. I decided to call the operator to public inquiry to consider whether to exercise my statutory power under Section 20(5) of the Transport Act 1985 which states the following:

(5) Subject to sub-section 6 below

(a) a permit issued by a traffic commissioner may be varied or revoked by a traffic commissioner;

(b) a permit issued by a body designated under section 19(7) may be varied or revoked–

i. by that body, or

ii. by a traffic commissioner after consultation with that body

(6) A permit may not be varied so as to substitute another body for the body to whom it was granted.

In this case, the small bus permits have been issued by the Community Transport Association (“CTA”). The three large bus permits were issued in my name. Unlike with the legislation for PSV operator licencing, the grounds for revoking a permit are not specific but I use the PSV grounds as informative. There also does not appear to be a requirement for a public inquiry before taking action but fairness indicates that such an opportunity for the permit holder to present their case is reasonable.

The call-in letter specifically indicated that a director (or trustee, in this case) of the business should attend. Ms Reed responded that she intended to come along alone. It was indicated to her very clearly that a statutory office holder really should attend.

3. THE PUBLIC INQUIRY

Trustee/Director Gerald Rose and general manager Helen Reed attended unrepresented. They had not considered legal advice.

I asked about maintenance records for P401MDT which were different from all the others and how that vehicle was licensed. Ms Reed told me that it belonged to the maintenance provider Liam Stacey but it was operated by NORDCAT.

Mr Rose told me that NORDCAT was set up by Dorset County Council in 2001 to provide community transport. Nordcat Services Ltd (“Services”) was set up to carry out commercial operations. Mr Rose told me that Services held a contract with Kingston Maurward College (“KMC”). Ms Reed told me that the college contract was with NORDCAT direct. Mr Reed told me that Services’ surplus was paid to NORDCAT.

I passed across the publicly available accounts for Services for the year ending 30 September 2021 which showed a turnover of £440,879. From the description provided to me, I explained that it appeared to me that Services was a commercial organisation operating a commercial service without the benefit of an operator’s licence. I asked whether legal advice had been sought as I had recommended in 2020. Ms Reed told me that they had sought further advice from the CTA. It wasn’t available in writing. It had not been possible to find a lawyer who had knowledge of PSV operator licence law. The problem was that they had never thought of Services as a separate company.

Having in mind the up-to-date advice, I asked the journey length. It was 25 miles so above the 10 miles given in the guidance as having a small impact. The KMC contract involved ten minibuses and one 33-seater. The large bus permits were only used on the school contract. The non-school work included daily transport for the elderly to and from the shops, three or four runs a day. There were runs to stroke club, to hospital appointments and suchlike. These were all done using the minibuses. There was one smaller vehicle but driven by volunteer drivers so not needing any licence.

I asked about the operating centre. At this point it became apparent that neither Ms Reed nor Mr Rose had the public inquiry brief. I adjourned for a copy to be provided and saw confirmation that it had been signed-for by a member of the charity’s staff. Ms Reed told me that it must be in a pile of papers in the office. In any case, she had seen the Vehicle Examiner’s report previously and responded to it. I considered whether it was fair to proceed or whether I should adjourn for a number of weeks and concluded that, since there was nothing new in the brief, it would not be unfair to continue.

I asked about the Examiner’s concern about the capacity of the operating centre. Ms Reed explained that a portion of land outside the gates was still their land. I found nothing further in that point.

I moved on to maintenance and noted that there was still no evidence of any brake performance testing at any inspection. Ms Reed told me that they had now bought a decelerometer but had been told by Mr Stacey that it was not appropriate for their vehicles so it had not been used. They had now found someone who had a roller brake tester.

I asked why a decelerometer had not been used when I had been told in 2020 that a device had just been bought and would be used. That decelerometer had not worked. I noted that VE Foster had been told in August 2022 that brake testing would happen and we were now in January 2023. Ms Reed told me that the problem was finding someone who knew how to use it. I pointed out that the issue of brake testing had been raised by a Vehicle Examiner in summer 2020, by me in November 2020 and by VE Foster in summer 2022 and still it was not happening. Against that background, promises being made today could carry only limited weight. Mr Rose told me that, as trustee, he could ensure that it happened.

I asked about the 76% MOT failure rate identified by VE Foster. Ms Reed hadn’t realised that it was so bad. There had been one particular vehicle that had been a disaster. Other vehicles they had sent expecting that they might fail on brakes. Time and cost had been a major issue. They had lost their main mechanic after the last hearing. There had been recent recruitment and things were looking up. The technician who had undergone training following the 2020 hearing had left. The situation was now that Mr Stacey would undertake inspections and the in-house staff carry out rectification work but that had only started this week. I noted that even Mr Stacey’s own vehicle had not been brake tested with the relevant section having a cross through it. I could only find one brake test for that vehicle, dated June 2021.

Mr Stacey had worked for a medium-size bus company, was qualified and had attended a vehicle inspection course in 2018.

I asked about the MOT of DY07OBL which had taken from 23 July to 4 October to get an MOT. The first failure was three loose wheel nuts. The driver should have picked that up before taking it. All the vehicles now had wheel nut pointers. They had them previously but children had taken them. The second failure, for no brake effort at all on one wheel was unexplainable. The split pipe was fine when it left the yard and must have split on the eighteen miles to the centre. The technician did not accompany it. It had since been removed from service.

I indicated that I would reserve my decision. I provided seven days for legal submissions on the relevance of the permits to the KMC contract.

4. POST INQUIRY MATTERS

My office was contacted the week after the inquiry by Backhouse Jones solicitors asking for further information on my concerns and I provided a note on 2 February. The solicitor’s office asked for an extension until 28 February to make submissions. I asked that submissions be received by 17 February. They were received at 4.20 pm on 28 February. That is why this decision has been delayed.

Once received Mr Backhouse’s submissions run to seven pages and make interesting reading. In summary, he submits that, “Services is a non-operational company which contrary to that stated in the accounts for YE2021, does not hold any contracts for work and does not handle any money at all”. NORDCAT provides transport for 362 students of KMC. It is not a profitable service. Many of the students have Special Educational Needs and the transport is a very bespoke service. Others live in very remote areas where there is no viable commercial service. Services to KMC are charged at cost. The KMC work is around 90% of NORDCAT’s operation. Mr Backhouse goes on to make an assessment against the DfT Guidance and I take account of that in my findings and decision.

5. FINDINGS OF FACT

5.1 Legality of the KMC operation

The submissions of Mr Backhouse muddy the waters considerably. There are two possible ways that the KMC contract is conducted. The first aligns with the documents published at Companies House and with the oral evidence of the trustee Mr Rose, although, on listening carefully to the recording now, Ms Reed actually refers at one point only to the contract with KMC being with NORDCAT. So, the first option is as follows:

i. Services is an active, wholly owned, subsidiary of NORDCAT.

ii. The sole director of Services is Helen Reed. Ms Reed is general manager of the charity. The accounts at CH (not in the original bundle but put into evidence at the PI) show that Services had one employee including the director. Whether Ms Reed is paid by Services or undertakes her director duties as part of her NORDCAT role, it does not seem appropriate to find that she is a volunteer director.

iii. Services has a contract with Kingston Maurward College for home to school transport (and some other associated transport but that is minor). From the published accounts, it appears not insubstantial providing for a turnover in 2021 of £440,000

iv. Against that income, there is a “cost of raw materials and consumables”, which I take to be the running costs of the vehicles, of £156,000. It would seem that some but not all of that is paid to the NORDCAT.

v. There are “other charges”, of £163,271 which seems to align to money in the NORDCAT accounts entitled “provision of community transport – management charges”, item 4, income from charitable activities. That would not seem to be a charitable activity, though, but a commercial H2S service carried out to generate income to support the charitable activities. There may be nothing in that point.

vi. There is then a “profit” of £120,000 which I understand is gift-aided to NORDCAT.

vii. As the total of £440,000 is greater than the corresponding income of NORDCAT at £398,000, it seems that Services pays directly for fuel and/or some other running costs. Services appears not to employ the drivers but that might not be relevant, see the UT case of Abus Ltd, T/2018/66, para 32, “as the drivers were “working” for Abus, Abus was the operator”.

If this scenario is correct, and it is supported by the published company accounts, then I find that Services is an illegal operator of public service vehicles and that this is facilitated by NORDCAT loaning the authority of its s.19 permits.

The second option is that put forward by Mr Backhouse, that Services has no part to play and NORDCAT directly operates the KMC contract. This calls severely in to question the governance of NORDCAT having apparently published false accounts for a number of years.

It may be that the question of the operation’s structure and the organisations’ governance is not one I have to resolve and may fall instead to the Charity Commission. It is only relevant if, in the second scenario, I would find that the operation falls within the law by reference to the DfT guidance. That guidance was updated following the High Court Judgement in the case of the judicial review brought by the Bus & Coach Association and handed down on 6 December 2019. I also have regard to that judgement. My analysis is here:

i. NORDCAT’s charitable status is not sufficient in itself to satisfy non-commercial status. The guidance states that “an operator needs to consider each and every one of the purposes for which it is providing road passenger transport services to ensure that is satisfies the exclusively non-commercial purposes requirement.”

ii. As far as I can see, any surplus is reinvested within the business.

iii. Competitive procurement/tendering. I am told that the KMC contract is one lot in a competitive tender. The H2S operation is ninety percent of the overall business. The guidance is not particularly helpful here. It says “the overall extent of competitively tendered contracts…can be indicative of its purposes and therefore should be taken in to account”, but then “the amount of competitive tendering is not in itself sufficient to prevent an operator being able to fall within the non-commercial exemption. All the factual circumstances need to be taken in to account on a case-by-case basis”.

iv. Operator size. The charity has twenty-three permits in total which in my judgement, classifies the operator as medium size, when compared with typical bus and coach operations (setting aside the big 4 bus operators). It is certainly not small, being ten times that allowed for a restricted PSV operator. Apart from the major bus operator in the area, I would think it is amongst the bigger operators in North Dorset. The guidance states size and scale “is potentially relevant”, but then “not in itself sufficient to prevent an operator falling with the scope of the exemption”.

v. Cross subsidy. The guidance says “The judgment makes clear that where an operator provides road passenger transport services simply for the purpose of generating surpluses to fund other transport or non-transport activities, the operator does not fall within the exclusively non-commercial exemption.” But then “the judgment does not completely preclude cross-subsidies” It does then go on to give an example being a rural bus service operated for the purpose of social inclusion. Some of the KMC work might fall in to that, but only a small proportion from the evidence and submissions.

It is useful here to look at the judgement itself. Paragraph 64 assists:

“Fourth, the fact that a community transport organisation covers its costs or even makes a profit from providing a particular service does not necessarily mean that its purposes in providing the service are partly commercial. However, if a purpose of providing a particular road passenger transport service is simply to generate revenue or profits which can then be used to fund or subsidise other road passenger transport services which are themselves being provided entirely for social or other non-commercial purposes, the organisation will not be able to rely on the exception.”

The entire basis for the operator undertaking the H2S contract is to fund its charitable activities generally in relation to older members of society. The operation appears to fail on this point.

vi. Main occupation. From the numbers, the H2S contract is the main occupation by a country mile – at least that is clear.

Paragraph 65 of the judgement indicates relevant considerations as

(1) the level of the payments received by the organisation for providing its road passenger transport services;

(2) whether or to what extent the organisation is providing services under contracts won in competitive procurement or tender exercises;

(3) the size and scale of its operations in the market for road passenger transport services; and

(4) the extent to which the organisation relies upon the support of unpaid volunteers to deliver its road passenger transport services or, in so far as it relies on paid staff, whether they are paid at levels comparable to the staff paid by commercial operators to perform similar roles.

The H2S income is almost all of NORDCAT’s income. Ninety percent of its operation is under competitive tender. They transport 362 KMC children; the latest OFSTED report shows that KMC has 736 learners, so this operator provides broadly half of the H2S transport which is a considerable portion. Mr Backhouse points to the lower pay of the minibus drivers in particular compared to commercial operators but that must, in good part, be because they benefit from s.18 of the Act and do not need a PCV entitlement on their licence.

Mr Backhouse refers to KMC having a high number of learners with Special Educational Needs and so their transport is within the charitable aims. The latest OFSTED report does not identify any significant number of learners with such needs. There is a high proportion of learners with high needs but that is a totally different matter. I therefore reject that the H2S is anything other than income generation for NORDCAT.

The cross-subsidy in itself leads to a finding that the operator cannot benefit from the “exclusively non-commercial” exception. That finding is reinforced by my analysis against the considerations given at paragraph 65 of the High Court judgement.

So I do not have to make a finding on whether or not Services has any role in all this. On either construction, I find that the permit holder fails to meet the definition of an “exempt body” at Section 18(5) of the Act.

I was told that around five jobs a day were done which fell within the charitable aims. The large buses are never used on that work. I find that the operator could meet the definition of an exempt body if I do two things. The first is to revoke all of the large bus permits and all bar five of the small bus permits. The second is that I attach a condition to the remaining permits that they are not to be used for home to school transport.

6. Maintenance

In November 2020, I took an educative and advisory approach to the maintenance of the fleet. I requested that the technician at the time undertake Class 5 or 7 MOT tester training, that they undertake an Irtec accreditation relevant to the larger vehicles and I accepted an explanation that a decelerometer had recently been acquired. Seemingly within a few months, the relevant technician had left and the same level of training was not provided to the new starters. I would have expected that as a minimum.

Over two years after I was told that a decelerometer had been bought, I am told that it has never been used because it didn’t work. A replacement has only just been bought but it is yet to be used seemingly because no-one knows how to use it. Following a few seconds on a search engine, I am now as I write watching a 4-minute video on YouTube which is providing a clear and comprehensive guide; it seems very straightforward.

Ms Reed told me that her new technician had said that a decelerometer isn’t suitable for the fleet. I might agree that a roller brake test is better but, on small two-axle vehicles, a decelerometer gives very useful outcomes. That is why such devices are approved for MOT testing vehicles that cannot go on a roller brake tester. So neither of the arguments put forward for not carrying out a brake test at any safety inspection hold any water. I am forced to conclude that the technicians just couldn’t be bothered and Ms Reed, as general manager, did nothing to encourage them. It would also appear that the trustees have taken no interest in the outcome of the two DVSA investigations nor the hearing in November 2020.

Vehicle DY07OBL, a Mercedes 816 Plaxton Cheetah with 33 seats, was presented for its MOT on 23 July 2021. It failed on concerns with the body exterior, brake systems and components and headlamp aim. There were advisory defects for road wheels and hubs and suspension. But it was also prohibited with immediate effect because it has three loose wheel nuts on the rear axle, nearside. It was presented for a retest on 10 August 2021. Unfortunately, the rear axle, nearside, now had no braking effort whatsoever. Whether that was linked to the rectification work on the braking system components is not known; it may just be coincidence. The coach was issued with an immediate prohibition for that serious defect. It went a third time on 29 September 2021. There was now a major leak of oil from the power steering system. Another prohibition was issued. It went for its fourth trip on 4 October and passed. It took ten weeks to get one vehicle through its MOT.

I have reviewed a sample of the maintenance records:

6.1 AY08CRU – 33 seat Mercedes 814

11 Mar 22	Registration recorded as simply “CRU”. No odometer reading. No tyre tread depths, no tyre age, no tyre pressures recorded. Brake efficiencies marked with a tick.
14 Mar 22	Fails MOT: windscreen wipers/washers
11 May 22	No tyre age, no tyre pressures recorded. Brake efficiencies marked with a tick. Three defects originally recorded as safety-significant downgraded to advisory: front springs rubber plate worn away, P clip for air pipe missing, rear air bags perished (these are changed).
4 Oct 22	21 weeks since last inspection, no VOR. Three tyres have considerably more tread than back in May. No age or pressures recorded. Brake performance section crossed through. Safety defect of “batteries weaping” not rectified but roadworthiness declaration signed.
21 Nov 22	7 weeks since last inspection. Registration recorded as “CRU”. No tyre pressures or age recorded. Brake performance section crossed through. Defect recorded as “rear S A bolt snapped” and referenced to item 71, brake performance. The description appears to refer to the slack adjuster bolt in which case that wheel would have had no brake effort on any system.

6.2 YP12BYO – Transit Minibus

13 Jan 22	No tyre pressures or ages recorded. Brake performance left blank. N/S/R tyres at 3mm and 4mm, no advice. Declaration of roadworthiness not signed.
3 Mar 22	Tyres that were at 3 and 4 mm now at 5mm. Tyre that was at 6mm now 2mm – recorded as a defect but no action taken yet roadworthiness declaration signed. No tyre pressures or ages recorded. Brake efficiencies ticked.
25 Apr 22	Tyre that was at 2mm now at 6mm (used tyre fitted?). No pressures or ages recorded. Brake performance marked with ticks. Front pads replaced but these were not advised previously. O/S brake light replaced, break-glass hammer replaced (a prohibitable, driver-reportable, defect).
6 Jun 22	No tyre age or pressure. Brake efficiency “N/A”.
27 Jul 22	Clear MOT pass
22 Sep 22	15 weeks, no VOR. No tyre pressures or ages recorded. Brake efficiency section crossed through. It appears all tyres had been replaced for MOT but not with all new.
6 Oct 22	2 weeks and only 800km since last inspection. No tyre age or pressure. Brake light bulb changed. Advised on leaks on half-shaft and hub seal.
15 Nov 22	6 weeks since last PMI. Missing emergency hammer – no action taken but signed-off as roadworthy. Brake performance crossed through. No tyre age or pressures.
20 Jan 23	No tyre pressures or age. Tread depths recorded for axle 1, axle 2 n/s, axle 3 o/s. Simple error but now impossible to know which tyre was which. Brake performance crossed through.

6.3 DK66CJO – Mercedes Sprinter Minibus

6 May 22	No tyre pressure or age. Brake efficiencies marked with a tick. Safety defects recorded of “loose passenger seats” (unhelpfully, not which ones) and “windscreen chips x 3”. No rectification yet declaration signed.
13 Jun 22	6 weeks since last PMI. No tyre pressure or age. Brake performance “N/A”. No defects recorded.
22 Aug 22	No tyre pressure or age. Brake efficiencies crossed through. Advised inner rack joint slight play.
14 Nov 22	Date corrected from 14 Oct. No tyre pressure or age. Brake efficiencies crossed through. Advised “o/s/f strut noisy”
14 Dec 22	4 weeks since last PMI – MOT preparation. 5 tyres recorded at 3mm, one at 4mm. Both front tyres worn on inner edge.
21 Dec 22	Failed MOT: engine MIL inoperative or indicates a malfunction, headlamp aim too high (both), nearside rear reflector damaged up to 50%. Advised: both rear anti-roll bar bushes worn, all 4 tyres on 2.5 mm, brake wear warning on dash
3 Jan 23	MOT pass with advisories: rear reflector damaged up to 50%, rear anti-roll bar bushes, tyres close to limit, brake wear warning light still on dash

Ford Transit K30NCT failed its MOT on 12 July 22 on low parking brake efficiency and because tyres of different sizes were fitted across the rear axle. An advisory defect was recorded of one of the number plate lamps inoperative. The rear of the pre-MOT inspection sheet is here:

(image of inspection sheet referred to displaying a number of defects)

There is no recorded assessment whatsoever of either tyres or brakes. I suppose the MOT tester should be grateful that the “vomit” had been cleaned out. The advisory item, the number plate light bulb, was not changed at the next PMI on 24 August as the bulb was “on order”. It was finally fixed in October. I find it hard to believe that a Ford Transit number plate lamp bulb is not available off the shelf.

So my assessment of the maintenance systems is that they are about as poor as anything I have ever seen. Inspections appear to follow no logical pattern. At times, they are 15 to 21 weeks apart. At others, they are as close as a fortnight. There is not one compliant inspection record in the entire bundle. The law changed in early 2021 banning the use of tyres over ten years old on the front axle of PSVs. This change in the law was catalysed by a crash with multiple fatalities caused by an old tyre failing catastrophically on the front of a coach on the M3 in 2013. This operator does not see the need to check the age of the tyres. Ever. Recording of tyre tread depths on safety inspection records is inconsistent but appears to indicate that second-hand tyres are fitted. In those circumstances, it is even more crucial that tyre age be monitored.

I conduct a balancing exercise. The only positive I can find is that there is a new technician who seems to have a reasonable background – although even his own vehicle has not been subject to a brake performance test over the last 4 inspections. He does record his tyre pressures, but not their age. The vehicle was first registered in 1997 so could well have tyres over ten years old fitted.

This is a permit operation. That does not mean that the passengers and other road users do not deserve to be safe. I cannot apply a lower standard for maintenance than I would for a PSV operation.

I find that the operator does not have the competence or capability to maintain larger vehicles. It does not have the competence or capability to maintain any significant number of smaller vehicles.

7. DECISION

7.1 Action pursuant to s.20(5)(a) of the Act:

Following a finding that the operator as currently operating is not an exempt body, the large vehicle s.19 permits issued to this operator in my name are revoked with effect from 24 July 2023.

Following a separate finding that the operator does not have suitable arrangements to keep the large vehicles fit and serviceable, the large vehicle permits are revoked with effect from 24 July 2023.

7.2 Action pursuant to s.20(5)(b) of the Act:

Having consulted the issuing body, the Community Transport Association, and noting its support, and following a finding that the holder is not an exempt body as defined by s.18(5) of the Act and, alternatively or additionally, because the operator has demonstrated that it is not capable of maintaining a medium size fleet in a fit and serviceable condition, I revoke FIFTEEN of the twenty small vehicle s.19 permits held with effect from 24 July 2023.

A copy of this decision is to be sent to the Charity Commission to consider the anomalous position as described at paragraphs 21 – 24. A copy is also to be sent to Kingston Maurward College so that it is aware of my findings herein.

Kevin Rooney

Traffic Commissioner

24 March 2023

8. ANNEXE 1

8.1 In the Western Traffic Area

9. Reasons of the Traffic Commissioner

9.1 Preliminary Hearing in Bristol and on Microsoft Teams, 10 November 2020

9.2 North Dorset Community Accessible Transport (Nordcat)

This is an operator of minibuses and large buses under authority of permits issued pursuant to Section 19 of the Transport Act 1985 which then provides a number of exemptions from legal requirements which would otherwise apply as set out in Section 18 of the same Act. It has come to my attention following a DVSA maintenance investigation. Whilst that investigation did not identify significant failures, the operator failed to respond to the Vehicle Examiner as it was required to do. I have therefore called it to a preliminary hearing as a form of health-check and to identify whether a public inquiry is necessary. Having heard from the company secretary, Helen Reed, and having recorded undertakings, I find that a public inquiry is not required. I set out my reasons here.

The operator is a company limited by guarantee. It benefits from charitable status which allows it not to indicate its corporate status by the use of the word “limited”.

Complying with the requirement to hold a permit does not necessarily mean that an operator’s licence is not required. An operator’s licence is required unless the organization can benefit from an exemption in EU Regulation 1071/2009. There are two potential exemptions which may apply (see Article 1(4) and (5) of the Regulation):

(b) undertakings engaged in road passenger transport services exclusively for non-commercial purposes or which have a main occupation other than that of road passenger transport operator;

and

1. …operators engaged exclusively in national transport operations having only a minor impact on the transport market because of:

(b) the short distances involved.

The operator was not on notice that this may be a concern. It may not be. However, the operator has a significant home to school contract. There has been recent litigation against the Department for Transport and others for allegations of failing to enforce the requirement to hold an operator’s licence. There is fresh advice on the government website. Ms Reed told me that advice had been taken some time ago from the Community Transport Operation. I strongly recommend that advice is further sought from a transport solicitor who specializes in public service vehicle law.

Review of the maintenance documentation gave cause for concern. Vehicle YN07OPM had an ABS warning light illuminated from 21 September to 29 October. At one point there is a comment that the brakes are working properly. It does not identify whether the ABS is cycling and is not a relevant comment. If stopped at the roadside, the historic nature of the defect is such that it would incur an immediate prohibition annotated to the effect that compliance systems had failed and may attract the driver 3 penalty points and a fine. Of course, the real issue is that the vehicle may lose control if required to stop sharply in wet or icy conditions. Attempts had been made in-house to resolve the issue but the vehicle had not been submitted to the relevant franchised agent for diagnosis and repair. I was assured it would be withdrawn from service.

A driver reported a defect of a “smell like oil” when the brakes were hot. This was annotated by the technician that the brakes had been replaced a short time earlier. No roller brake test was conducted to check for bind. There is a complete absence of brake performance testing throughout the year. I was told that a decelerometer had been recently purchased and that would normally be adequate for the size of vehicles operated but it is not adequate when a driver reports a braking defect or when work has been undertaken on the braking system. Only a roller brake test can determine whether the brakes are working as intended (and even a roller brake test cannot confirm that ABS is working properly). I am left with a concern in relation to the technician’s competence, noting that he is undertaking an apprenticeship and the operator appears open to investment in his knowledge.

With an authority of 25 vehicles, this is a medium-sized passenger transport operation. Ms Reed studied for the transport management CPC several years ago. Continuous professional development is essential and Ms Reed to her credit is open to that.

This is far from a typical PSV operation. Ms Reed presents as a highly competent manager who could benefit from some external support. I am recording two undertakings that should provide that for her and her technician:

Helen Reed will attend a one-day passenger vehicle operator licence awareness course by 10 May 2021 with evidence of attendance sent to OTC Bristol by 24 May 2021.

The operator’s technician will attend a course to become a Class 7 or 5 MOT tester by 10 May 2021 with evidence of attendance sent to OTC Bristol by 24 May 2021.

MOT Class 5 is privately owned buses. Class 7 is goods vehicles between 3000 and 3500kgs. Class 5 would be more appropriate but availability is very limited so Class 7 is acceptable.

The irtec scheme is run by the Institute of Road Transport Engineers. It provides a theoretical and practical assessment and certification of the competence of technicians and the “Inspection Technician” licence is aimed at those involved in conducting preventative maintenance inspections. I do not know whether it is available for minibus operators but it would be beneficial for the technician in respect of the 33-seat vehicles which are based on full size coach chassis and have, for example, air brake systems. I ask the operator to consider such an accreditation for the in-house technician.

Compliance with the undertakings recorded above is assumed in deciding that a public inquiry is not needed. Evidence that the undertakings have been satisfied should be sent to OTC

Kevin Rooney

Traffic Commissioner

10 November 2020