Decision

Decision for Stagecoach Devon Ltd, PH1020951

Published 8 August 2022

0.1 In the Western Traffic Area

1. Written Decision of the Traffic Commissioner

1.1 STAGECOACH DEVON LTD, PH1020951, t/a Stagecoach South West

1.2 ROBERT DENNISON & PAUL CLARK – FORMER TRANSPORT MANAGERS

2. BACKGROUND AND SCOPE OF THIS DECISION

Stagecoach Devon Ltd is the holder of a standard national public service vehicle operator’s licence authorising the use of four hundred and seventy-five vehicles. The directors are Bruce Dingwall, Carla Stockton-Jones and Michael Watson. The current transport managers are Anthony James Vincent, appointed May 2020, Katy Wagstaff, appointed August 2021 and Simon Ford, appointed the week before the hearing.

The inquiry was called to deal with two discrete matters. For reasons I shall explain, this decision only deals with one of those. The first matter of concern is an incident which occurred on 5 October 2019 when a double deck bus left the road and came to a stop in a field on its side. There were thirty-seven casualties of which ten were serious. The driver of the vehicle was a Mr Kameron Allan. He was not a regular driver and he was only 19 years old at the time. The route in question was in excess of 50 km and drivers under the 21 are disqualified from driving routes in-service of that length. However, the route had been registered as a split service to avoid the need to comply with the EU drivers hours and tachograph rules following an indication from the Department of Transport in 2008 that such an approach was acceptable in that context.

Mr Allan was charged with ten offences of causing serious injury through dangerous driving but those charges were dropped at court and Mr Allan was convicted in July 2021 of one single offence of careless driving. I was concerned that the operator may have operated a service in a manner dangerous to the public and may have allowed that service to be driven by a disqualified driver.

The second issue is the reliability of registered bus services and associated applications to change service at short notice. The primary evidence for that matter was the report of DVSA Traffic Examiner Christopher Eggins. On 20 June 2022, that is two days before the hearing, I was written to by Cllr Andrea Davis of Devon County Council who raised fresh concerns in relation to the operator’s service reliability. I immediately sent a copy of that letter to the operator’s solicitor James Backhouse and indicated that I would take no account of it and would not deal with it until I had produced this decision. That was my intention.

On 14 July, during a 28-day period available to the operator to produce further submissions, I received another letter from Cllr Davis. The letters were sent both to the Senior Team Leader in Bristol and to my personal email account. Not recognising the sender’s email address, I opened the email. The second letter alleges that claims of improvement made by the operator’s Managing Director at public inquiry have not been evidenced. The letter makes further complaints in relation to the detrimental effect on local services caused by Stagecoach providing drivers for large events. The Council also copied me into a letter to Stagecoach UK Bus making similar complaints.

I have considered carefully whether I could or should proceed to make a decision based on TE Eggins’ evidence alone. I have concluded in the negative on both counts. I am aware of the fresh, or further, complaints of the local authority and cannot reasonably put those out of my mind so the operator must be allowed an opportunity to respond. It would also be wrong to make a decision on a historical report when the situation is seemingly still live. I am therefore adjourning my decision on bus service reliability matters pending a further hearing. I will make separate directions in relation to that hearing.

This decision relates only to the following legislation under which the operator was called to a public inquiry:

That the operator operated a service in a manner dangerous to the public (see Section 26(1)(d)(ii) of the 1985 Act);

That the operator failed to declare that Kameron Allan had a conviction which was required to be notified to the Traffic Commissioner, (Section 17(3)(a) of the 1981 Act);

That Section 17(3)(aa) of the 1981 Act may be engaged due to an apparent failure to observe the laws relating to the driving and operation of vehicles used under the licence in particular Regulation 9 of Motor Vehicles (Driving Licences) Regulations 1999/2864 which prohibits the driving in-service of a public service vehicle by a driver aged under 21 except where the person driving the vehicle—

(a) has an initial qualification authorising him to drive motor vehicles of that class and is either—

(i) engaged in the carriage of passengers on a regular service over a route which does not exceed 50 kilometres, or

(ii) not engaged in the carriage of passengers,

That, since the licence was issued, there had been a material change in the circumstances of its holder, namely the conviction of Kameron Allan which was not notified within 28 days (Section 17(3)(e) of the 1981 Act)

That the operator may fail to meet the requirements of good repute or professional competence (Section 17(1) of the 1981 Act.

Former nominated transport managers, Robert Dennison and Paul David Clark were called to consider their good repute as such. Driver Kameron Allan was called to a conjoined driver conduct hearing.

I directed that the hearing be heard in the locality of the crash and the service reliability problems. This caused significant delay due to new hotel booking arrangements and, in the event, no members of the public attended.

3. THE PUBLIC INQUIRY

The inquiry was heard in a complex hybrid hearing at Mercure Exeter Rougemont Hotel and via Microsoft Teams links. Present in the room for the operator were Michael Watson, Rupert Cox, Anthony Vincent, Katy Wagstaff and Simon Ford. All were represented by James Backhouse, solicitor.

Robert Dennison attended via Teams link from his new home in New Zealand. He was represented by Carolyn Evans, solicitor. Paul Clark attended from his new home in Glasgow represented by David Glover, solicitor, who was in person in the room. Kameron Allan attended in person represented by Hannah Webb of counsel. The arrangements were complex but I was satisfied that fairness was not impaired. I am very appreciative of my clerk, James Holt, for making everything work.

The oral evidence is electronically recorded and a transcript is available on request; I repeat here only that which is central to my decision.

Written submissions and supporting evidence were received in advance from all parties. I was grateful for the assistance provided by all advocates throughout.

3.1 The evidence of Kameron Allan

Ms Webb told me that Mr Allan had been new in his driving career having undertaken only about 25 hours of driving at that point. There had been shortcomings in the training and mentorship. Standard practice had not been followed. In relation to the incident itself, the road was narrow and had a number of accidents upon it. There was no crash barrier. Mr Allan’s coat-hook was behind him and next to the window. It was reasonable for Mr Allan to have opened that window. It was accepted that the coat should have been further secured.

Mr Allan was now employed by Lothian Bus who had provided a statement. He will go through their normal driver training program afresh and be provided mentorship. Ms Webb noted that regular training as described in the witness statement of Mr Dennison had not applied to Mr Allan. Mr Allan had not received vehicle-specific training nor the local support. He had not had familiarisation training for the route. The crash was a culmination of deeply unfortunate circumstances.

Mr Allan told me that he had a life-long passion for the industry. He had started as an apprentice in the workshop but had then preferred to move into an administrative role. He had asked to take his test at 18 and Stagecoach had facilitated that once he had achieved two years clean driving in a car. Mr Allan had known that he could only drive routes up to 50 km but also knew that the Gold route had been registered as a split service.

3.2 The evidence of Mr Robert Dennison

Ms Evans referred me to Mr Dennison’s witness statement. She told me of Mr Dennison’s career with Stagecoach. In July 2015, he became Managing Director for Stagecoach Couth West and ceased to be a transport manager. It was only on 30 July 2019 that Mr Dennison became a transport manager again for a short period of time. Regrettably, the accident happened in that short period.

Mr Dennison accepted some degree of responsibility that Mr Allan had not undertaken the normal training package, however the more likely cause of the crash was Mr Allan’s moment of inattention. What originally started as a dangerous driving allegation was dropped to careless by CPS on the basis of police evidence who accepted that Mr Allan’s account given in interview under caution was reasonable, that is that it was reasonable for him to try to recover his jacket.

I shared a concern that it appeared from Mr Dennison’s statement that he had been added as a transport manager simply to assuage the concerns of my office that there was only one transport manager responsible for a large fleet. Mr Dennison acknowledged that he had received a letter from my office questioning the adequacy of the single transport manager. He had taken legal advice at that point and concluded that he was suited to undertake the role; it was the engineering role which was vacant and that was his background. He was aware of the processes in place and was satisfied with them. There had been a large degree of overlap in the roles. He had properly fulfilled the role alongside the second transport manager.

Mr Dennison told me that he had started a local investigation immediately after the crash. However, he was soon told that Stagecoach would be conducting an investigation at a group level and he should support that and not do so locally. In this incident, the circumstances were unique. The systems and processes dealt adequately with regular drivers but the crash identified that there were exceptions who were people not in regular driving roles. Had he still been in post, he would have looked to develop those processes for the non-regular drivers. He had left the company on 22 November 2019; he was reluctant to tell me why. He had not been directly involved in the decision that led to Mr Allan to be driving that day. The depot managers were expected to assess the competence of drivers and the suitability for the job in question.

Ms Webb asked whether there were other people in the business who were in a similar position to Mr Allan in that they drove only occasionally. Mr Dennison indicated that they would be few, mainly engineering staff, who would be trained to gain the licence but it would not be envisaged that they drove in service. Ms Webb asked whether there were driver shortages. Mr Dennison accepted that there were shortages and that meant that non-drivers were asked to volunteer for overtime; it was not compulsory. There were no processes in place to quantify how many non-regular drivers were available to the business. Engineering staff were very unlikely to drive in-service. If they did overtime, it was in their own department. Mr Dennison denied that staffing issues would have meant reduced route familiarisation and driver support.

3.3 The evidence of Mr Paul Clark

Mr Glover read Mr Clark’s statement as it had not reached me or the other parties in advance. Mr Clark had been the nominated transport manager and Operations Director from April 2017 until 2021 when he moved to a larger business in Glasgow. Mr Clark had been responsible for leading the depot managers and for relations with the unions. There had been a union-led dispute at Torquay and a reluctance or refusal from drivers to work overtime. That led to many managers, including Mr Clark, driving regularly especially weekends. Mr Allan had moved from the workshop to a scheduling role. Mr Allan was keen to gain his PCV. In line with Stagecoach policy, he had to wait until two years after he had passed his driving test. He did that and was then put through his PCV which he passed first time. Usually, drivers would then be assigned a mentor which would be organised locally by the depot managers. That didn’t happen in Mr Allan’s case but Mr Allan would likely have been trained on the ticket machine and cashing-in procedure.

The transport managers were the three directors initially but all managers were required to hold the CPC qualification. There were almost 1000 staff, with around 900 being drivers. Exeter had been a difficult place to recruit and the company had a very generous sick-pay scheme which caused greater sick absence. Torquay had been a particularly difficult depot and the shop-steward had been suspended.

What should have happened was that the depot manager should have taken all non-regular drivers through the trainer manual. The depot managers would be expected to have a nursery roster with duties such as driving smaller buses initially. Mr Clark had no personal involvement with allocating work to Mr Allan; that was the depot manager’s job. He had been disappointed to find that Mr Allan had not been put through the mentoring programme. Staffing issues would not be a reason for that not happening.

Mr Clark attended the crash scene on the day. He had a brief conversation with police. There had been two internal investigations. The first was by an auditor. The second was by a managing director from Wales who was specifically tasked with looking at training of non-regular drivers.

The biggest learning point was the need for proper systems for non-regular drivers. He contrasted the position with that at his current employer where he had been given familiarisation on a number of routes. Mr Allan should have been attached to the Torquay depot as a matter of course. It was the depot manager or an inspector who was responsible for sourcing non-regular drivers. Mr Clark was aware that there had been recommendations in relation to non-regular drivers but couldn’t recollect precisely what had been changed.

3.4 The evidence of Michael Watson

Mr Watson told me that he joined the bus sector in 1996 at London Transport, joined Go Ahead in London and the North East, then moved to Arriva. He joined Stagecoach in 2011 and became MD of Stagecoach South West for the second time in December 2019. His roles had included as a transport manager.

The company had agreed the transport management structure with my predecessor Miss Bell in 2014. There were now three transport managers in place, Katy Wagstaff the operations director, Anthony Vincent the Engineering Director and Simon Ford, Head of Commercial. There was a structured process for scrutinising performance. Ms Wagstaff and Mr Vincent had monthly transport manager meetings. All senior managers were very visible in the depots. All managers were trained to CPC level. The transport managers had the necessary authority to make major decisions. Reporting was based on a wide range of key performance indicators.

Non-regular drivers typically came from the pool of inspectors or managers. None were under 21 years old. The under-21 drivers were all regular drivers. Mr Allan’s position was exceptional. Now, the manager would need to consult a transport manager before deploying a driver who had not been through the usual process. He didn’t know what the position was in 2019.

The company was being encouraged to target leavers from full-time education so was being encouraged to recruit younger drivers. Younger applicants were more receptive to training and were good with customers.

I expressed concern that Stagecoach had not tendered as a witness anyone who could be accountable for the 2019 crash. I asked why the two other statutory directors, Ms Stockton-Jones and Mr Dingwall were not present. Mr Backhouse told me that they were not operational directors. The facts were not disputed but it was disputed that the company had operated a service in a dangerous manner. The company had relied upon a letter written by the Department for Transport in 2008 to support the principle that routes could be split for registration for drivers’ hours rules purposes. That was to be preferred to the authority in my brief of Vehicle Inspectorate v Arriva (West Sussex) Ltd. The company’s managers had categorised a service as either EU or domestic and understood that young drivers were acceptable on a domestic service.

Mr Backhouse explained that the outcome of the internal investigation was subject to legal privilege because there were legal civil proceedings afoot. Mr Watson told me that it was normal for such investigations to be undertaken centrally due to the expertise needed. It was not known when the proceedings would conclude. I asked about the risk assessments in relation to young drivers. Mr Backhouse had not come prepared to deal with those matters. I was surprised as they arose for me from the driver’s interview under caution. To move matters forward purposively, I agreed to provide my questions in writing and allow 28 days to respond. I also agreed to provide 28 days for a skeleton argument in relation to route splitting.

Further discussion related to bus punctuality which is not the subject of this decision.

3.5 Closing submissions in relation to Mr Dennison

Ms Evans submitted that Mr Dennison had been working for Stagecoach for twenty years progressing from a shift-fitter to Managing Director. He had undertaken a number of roles appropriately. He had been a transport manager from 2004 to 2015 with no issue and had undertaken relevant continuing professional development. In 2019, Stagecoach South West had two resignations from two directors which prompted a letter from my office questioning whether the transport management was adequate. They were struggling to recruit an Engineering Director. He took on the role and fulfilled it. He had only been in the transport manager role for three months when the crash happened. He had approved all the routes. Driver allocation was done at the depot level. He had believed that Mr Allan had undertaken the full training program. It had not been noticed that Mr Allan had slipped through the net. Even had Mr Allan been through the mentoring program, the accident may still have happened. The police witness at the criminal trial had accepted that it was a reasonable action to try to recover the jacket from the window.

Mr Dennison was devastated by the accident and still is but he sees that as nothing in relation to the suffering of the passengers. He believed the systems to have been robust. In this unique set of circumstances, they weren’t followed. He accepts that he should have ensured that all drivers followed the same path. He had attended the hearing despite having left the UK two years ago. Loss of good repute would be disproportionate, albeit I might find it to be tarnished.

3.6 Closing submissions in relation to Mr Clark

Mr Glover told me that the representations in relation to Mr Dennison applied also in relation to Mr Clark. Mr Clark attended the crash scene. The backdrop to Mr Allan not having followed the correct training route was accepted by Mr Clark as an error in the systems. He had learned from it and the learning was continuing. His good repute remained intact.

4. POST-INQUIRY SUBMISSIONS ON BEHALF OF THE OPERATOR

A bundle of documents was received on 22 July 2022. The comprised a skeleton argument in relation to the route-splitting point, responses to the written questions I had provided, along with a substantial bundle of supporting evidence.

5. CONSIDERATION AND FINDINGS OF FACTS

The core facts relating to the collision on 5 October 2019 are uncontroversial and I find are as follows:

• There was a driver shortage at the Torquay depot caused by industrial action (which was subsequently resolved);

• It was established practice for the company to draw upon a pool of what I term “non-regular” drivers to cover shortages. These tend to be managers or inspectors. From the evidence of Mr Clark in relation to his new employer, and from my own knowledge of the sector, such a practice is entirely normal;

• Kameron Allan was a bus enthusiast who was keen to gain his PCV entitlement at the earliest opportunity. He was also keen to carry out driving activities to gain experience for his future career in the industry;

• Mr Allan had passed his PCV test in July 2019 and had driven around 25 hours in a bus thereafter including double-deckers;

• Because of his unusual status in the business, as a commercial assistant, he returned to his day-job upon acquiring the PCV entitlement. He was not provided with the usual extensive support and mentoring which applied to full-time drivers;

• A conversation took place between Mr Allan and Mr Richard Scant, Torquay depot manager, the result of which was that Mr Allan was allocated the Stagecoach Gold service on 5 October 2019;

• At a relatively early point in the journey, on a country road, Mr Allan’s hi-viz jacket, which was hanging behind him, started to blow out of the window. In turning to secure the garment, Mr Allan lost control of the vehicle which then overturned into a field.

My ability to make further findings in such definite terms has been hampered by two points, each of which I raised during the hearing. Stagecoach tendered no witnesses who were in post at the relevant time. I was told that two of the three statutory directors were not “operational directors”. They were and are statutory directors and were and are accountable for what happened. Unlike Mr Watson, they were in post at the relevant time. I was told that another Stagecoach Managing Director, from a Welsh operation, had conducted an investigation into the use of non-regular drivers. That individual was not tendered as a witness. Richard Scant, the depot manager who made the decision for Mr Allan to drive on the 5 October 2019, was not tendered as a witness. The second point is that I was told that there were in fact two separate internal investigations undertaken in relation to the crash. I indicated that it would be helpful to see them. I was told that they were legally privileged. I find that difficult to understand as they are internal documents. I think what was meant was that the company had been advised by solicitors acting in relation to civil claims arising from the crash not to make the reports public. If they were commercially sensitive in that way, they could have been heard in private session. It was indicated during the hearing that Mr Watson wished to share the reports and I was hoping that they would be in the operator’s supplementary information. They are not. Whilst I fall significantly short of finding that the operator has failed to cooperate with the public inquiry process, I do find that they have been less helpful than they could have been.

I will turn first to the question of whether or not Kameron Allan, a nineteen-year-old driver, was legally entitled to drive the vehicle that day. The relevant provision is to be found in Regulation 9 of the Motor Vehicles (Driving Licences) Regulations 1999 (“MVDLR 1999”):

9) In item 7, the age of 18 is substituted for the age of 21 in relation to a motor vehicle of a class included in category D or D+E, other than sub-category D1 or D1+E, where the person driving the vehicle—

(a) has an initial qualification authorising him to drive motor vehicles of that class and is either—

(i) engaged in the carriage of passengers on a regular service over a route which does not exceed 50 kilometres, or

(ii) not engaged in the carriage of passengers,

(b) is using the vehicle as described in regulation 3(2)(e) of the Vehicle Drivers (Certificates of Professional Competence) Regulations 2007,

(c) is authorised by such document as is referred to in regulation 4(5)(d) of those Regulations to drive motor vehicles of that class,

(d) by reason of being a person in relation to whom regulation 4(7) of those Regulations applies, is not required to have an initial qualification relating to motor vehicles of that class.

Regulations 9(b) to (d) are not relevant nor is Regulation 9(a)(ii). The question turns on whether or not the route was in excess of 50km or whether it was two separate split routes.

I can find no authorities relating to underage drivers driving services over 50km. Mr Backhouse in his skeleton argues that it is appropriate to take account of cases and a DfT letter that relate to tachograph requirements which have an exemption in almost entirely the same terms. I agree with him on that. In my bundle is a copy of the most recent helpful authority I can find, Vehicle Inspectorate v Arriva (West Sussex) Ltd (CO/2952/2000) 6 December 2000. That refers to an earlier case, Northumbria Motor Services Limited v Vehicle Inspectorate (CO/2153/97) 12 February 1998.

The circumstances of the earlier case are summarised in the later case as follows:

The scope and application of Article 4(3) was considered by this court in Northumbria Motor Services Limited v Vehicle Inspectorate (CO/2153/97 ) 12th February 1998 . The facts of the case related to a bus route operated between Newcastle and Carlisle, a distance of over 50 kilometres, but which was divided into three local services: Newcastle to Hexham, Hexham to Haltwhistle and Haltwhistle to Carlisle, each of which was less than 50 kilometres. The bus operating the route which covered these three services was the same, usually had the same driver, and had the same number with a destination board stating Newcastle or Carlisle, depending upon which direction the bus was travelling. Each of the three services was registered under the Transport Act 1985 . The court held that the registration of local services under the Transport Act 1985 was not relevant. The issue was: what was the length of the route along which a regular service was being provided? That was essentially a question of fact for the court.

The court held that the service provided was in fact provided between Newcastle and Carlisle. Giving the leading judgment, Schiemann LJ said:

“It is either implicit or explicit in the Case stated that the Crown Court was dealing with a vehicle bearing the route number 685 which was advertised as a service between Newcastle and Carlisle and that the driver intended to drive the whole distance in the same vehicle and that this distance exceeded 50 kilometres. The Court was fully entitled to find that “the route covered by the service in question” was that between Newcastle and Carlisle.”

In the Arriva case, magistrates had distinguished the position on the following basis:

The bus in the Northumbria case showed one route number from start to finish, one destination, and was advertised as one through route. Although there were more than 400 stopping points along the route, none was at a bus station and none were stopped for any significant delay. As in the Northumbria case, we were not of the opinion that the ticket availability or the registration of the routes determined the route of the service.”

That was not accepted:

Four detailed points were relied on by Mr Hough, who has appeared for the respondents. It is therefore necessary to examine each of these in turn. I do so to see whether in reality there was in fact one service or two services and whether the changes were not merely cosmetic so as to enable the bus company to claim that there were two routes.

The first point taken was that the route was advertised as two routes. The timetables which we have seen, advertised the route from Kingston to Crawley on the same document, but it did advertise the fact that there were two different route numbers. The same pattern was followed on the route between Raynes Park and Crawley, though there the numbering was more prominent. However, that seems to me to be no more than a cosmetic change.

Secondly, Mr Hough relied on the fact that the bus stopped at a bus station for a period of five minutes, but in the Northumbria case the bus stopped at the Hexham bus station. There must be many situations across England and Wales where buses on a journey stop at bus stations en route. One of the reasons they do so is to enable the bus to catch up with its scheduled timetable. Therefore, the fact that a bus stops at a bus station for as short a time as five minutes again cannot, of itself, mean that this breaks a service into two services.

The third and fourth points relied on by Mr Hough were the change in number and change in destination. Plainly a change in number would of itself be cosmetic, but does changing the destination board mean that the service in question is changed into two services? I do not think it does. It seems to me that again that is a cosmetic change.

Looking therefore at the four points that are said to be points of distinction between the facts of this case and the decision in the Northumbria case, they are all cosmetic changes. The reality, which is what a court must examine, is that there was a service between Crawley and Kingston and a service between Crawley and Raynes Park, and not separate services between Crawley and Redhill bus station and Redhill bus station and Kingston and between Crawley and Redhill bus station and Redhill bus station and Raynes Park.

Therefore I, for my part, would answer the first question posed that the Justices were not on the facts found entitled to acquit the respondents; on the contrary, they were bound to convict them.

The Stagecoach Gold service from Torquay to Plymouth is advertised as a single service although registered as two connecting services, Torquay to Totnes and Totnes to Plymouth. The vehicle is the same. The driver is the same. The service retains the same name. There is a two-minute layover in Totnes. Any suggestion that it is two separate routes is pure fiction. Stagecoach has not included in its bundle the way that it was advertised in 2019.

The matter is muddied somewhat by a letter from the Department for Transport to the Confederation of Passenger Transport in 2008. The background to that letter is covered in Mr Backhouse’s skeleton argument and is known to me so not contentious. The drivers hours rules changed in 2006. Prior to that, regular services over 50 km could enjoy an exemption from the fitting of tachographs by maintaining timetables and duty rosters. From 2006, the requirement for these longer services became for a tachograph to be fitted. That caused significant operational challenges for bus operators who lobbied the Department for Transport for some flexibility. The result is the letter in the operator’s bundle from the Department for Transport to the Confederation of Passenger Transport’s then policy director, Steven Salmon which reads as follows:

Dear Steven,

EU drivers' hours rules: 50km threshold

Further to our meeting on 17 April I am writing to inform you that we have now agreed the criteria with Ministers for determining whether a route is a separate route for the purposes of the 50 km threshold for regular bus services under the EU drivers’ hours rules (EC561/2006). These are slightly broader than what we originally proposed at our meeting.

A route would be regarded as a separate route if:

(a) the route is individually registered with the relevant traffic commissioner (this does not apply to services operated in Greater London under stewardship of Transport for London);

(b) the route ends at a recognised terminus (i.e. a destination in its own right, an established transport interchange or a garage); and

(i) the same vehicle is not subsequently used on another route;

(ii) there is a change of driver before the vehicle is used on another route in which case the two routes may be advertised as a through service; or

(iii) the same vehicle is subsequently used on another route with the same driver provided the two routes are not advertised as a through service (they may be advertised as connecting services and passengers wishing to continue on the connecting service may do so without leaving the vehicle if they wish and through tickets may be issued).

I would like to make it clear that the above criteria are the Department’s own interpretation and will be used by VOSA to allocate resources to proactive enforcement of the EU Regulation. Only the courts can give an authoritative statement of the law. If complaints are made about particular services and it is not clear whether the criteria are met, VOSA will investigate and consider on a case by case basis whether the EU Regulation is being complied with. The criteria will be reviewed in the light of practical experience gained and any abuses that come to light.

I would be grateful if you would circulate this information to your members and I hope that this will alleviate some of the problems which have been faced by operators and bus passengers. It is not the intention of the Department to issue a press release.

The author is David Meredith, Head of Road Haulage Employment Branch, Freight and Logistics Division, Department for Transport. It is not from the Department’s Buses and Taxis team nor its drivers’ hours team. I understand it to say that VOSA, DVSA’s predecessor, is being told not to direct effort at proactive enforcement of the tachograph requirements on registered services provided the Department’s criteria for separate services are met.

Whilst Mr Meredith’s letter appears to fly in the face of the established caselaw, it is, or was, a statement of the then government’s position. In that respect, it is reasonable that an operator has regard to it. It is explicit in that it refers to the drivers hours rules but the exemptions are drawn in very similar terms. However, it is clear that the Department’s rather liberal interpretation was based on the impact on operators of the need to fit tachographs. At no point was the age of a driver taken into account. I do not know whether DfT’s then Head of Road Haulage Employment was aware that an age limit applied to certain bus and coach drivers; I suspect not.

Having considered carefully the Stagecoach Torquay to Plymouth Gold service, I find by reference to the legal authorities that it is a single service. It should therefore be operated with a driver over the age of twenty-one. Kameron Allan was disqualified from driving that service by virtue of the Motor Vehicles (Driving Licences) Regulations 1999. I must balance that finding with the existence of the letter from the DfT to CPT in 2008. Stagecoach is, however, a significant transport operation and has within its resources the ability to check the law rather than rely on an official’s letter relating to a different and very specific potential regulatory burden.

I find Section 17(3)(aa) made out. I apply moderate weight to that given the Department for Transport’s letter of 2008.

I turn now to whether or not the operator, or any employee or agent, has operated a service in a manner dangerous to the public. It is accepted, even advanced, that Stagecoach Devon has sophisticated systems in place for training new drivers. The processes with respect to new full-time drivers appear to me impressive. There is initial training followed by vehicle and route coaching all supported by mentoring.

It was accepted by both former transport managers that those processes did not apply to Mr Allan given his unusual circumstances. Both former transport managers, one of whom had been the managing director at the time, accepted that mistakes had been made and that Mr Allan should not have been driving that bus that day. Stagecoach Devon provided no relevant or helpful witnesses on that point. I have some written submissions on behalf of the company as follows:

It is now believed that there may have been an element of miscommunication between Mr Allan and Mr Scant during their consultation/conversation at that time. It appears that Mr Scant had asked Mr Allan which routes he was familiar with and SDL’s Gold services were one that Mr Allan specifically mentioned. It is believed that, upon hearing Mr Allan say that he knew SDL’s Gold services routes, Mr Scant may have understood this to mean that Mr Allan knew these from a period of route training with SDL. In fact, Mr Allan had meant that he was familiar with the routes from knowledge he had gained from his own interest in buses, the industry generally, the routes operated by SDL and his role in SDL’s commercial team - not from specific route training. Further, following this consultation/conversation, Mr Allan had confirmed to Mr Scant that he knew SDL’s Gold services routes and was comfortable to drive the Gold services.

It is appreciated that Mr Scant should have confirmed that Mr Allan was familiar with the Gold services routes by checking the relevant training records.

The company has in place extensive and robust training regimes for drivers for a reason and that reason is to ensure safety. It has failed to follow those procedures for whatever reason – Mr Scant was not produced as a witness to assist me. It appears to be that there was pressure to deal with a driver shortage so corners were cut. Commercial considerations overtook safety. I assume that the extensive driver training programme has been established over the years as a result of risk assessments. Those risk assessments were not provided to me. I was instead told that Mr Scant “conducted a dynamic risk assessment of Mr Allan’s ability to drive the Gold services…and his decision to use Mr Allan’s services was based on his professional judgement at the time”. A dynamic risk assessment is generally appropriate either where an individual is working alone or where work is in a rapidly-changing environment. Such an approach is not, in my finding “suitable and sufficient” to satisfy the requirements of The Management of Health and Safety at Work Regulations 1999 and not appropriate in the day-to-day running of a bus company.

I find that the operator failed to comply with its own procedures and so allowed in to service a driver, vehicle and route combination that would not meet its own standard criteria and was proven to be dangerous by the casualty outcome. Additionally, or alternatively, its agent Kameron Allan so operated a service. I attach significant weight.

I make a finding that, more likely than not, Stagecoach Devon Ltd ran a service that was dangerous to the public. I make that finding because it failed to comply with its own driver training procedures and Kameron Allan was not provided with the follow-up support and mentoring that the company’s own procedures said he should get. He was allocated a duty for which he had not been trained. Section 26(1)(d)(ii) of the 1985 Act is made out.

The operator failed to notify the conviction of Kameron Allan within 28 days. I have seen an explanation for that being that the transport manager did not know of the need to notify the conviction. It is not an acceptable explanation. The operation of a service in a dangerous manner, the conviction of a driver for careless driving whilst driving one of the operator’s vehicles and the failure to notify a relevant conviction are material changes since the licence was granted. Section 17(3)(e) of the 1981 Act is made out. The nature and background of the conviction in particular are such that I attach significant weight.

It is deeply unfortunate that the operator failed to provide relevant witnesses. The two statutory directors who were in post in 2019 failed to attend. The statutory director who did attend could not assist. I offered to adjourn for more witnesses to attend who could assist but that was resisted by Mr Backhouse. The manager responsible for the decision-making was not put forward. I have not seen the company’s internal investigations and, despite asking, risk-assessments have not been produced.

For the record, I do accept that the resignation of Robert Dennison was entirely unconnected and discussions for his leaving were underway prior to the crash.

In considering regulatory action, I refer to the Senior Traffic Commissioner’s Statutory Guidance and Directions document 10. I find that the situation which allowed Kameron Allan to be driving was negligent and was likely to have increased significantly the road safety risk. The management control was clearly missing. The driver was insufficiently trained when measured against the operator’s own standards. Those findings would tend to lead me towards a categorisation of “serious”. I balance them with the apparently strong systems in relation to maintenance of vehicles and the mainstream drivers. I also have regard to the fact that this is a sizeable operation with some nine hundred drivers, the vast majority of whom are well trained and fully competent. I am left with a categorisation at the lower end of “moderate”.

Regulatory action is necessary to mark the seriousness of the procedural failure but not action that will impact on the operation. The operator has authority for 475 vehicles with 388 in possession. The peak vehicle requirement is significantly lower again. A reduction of 10% is appropriate as a marker.

I also need to take regulatory action to curb the operator’s failure to comply with the law on driver age. I find myself in the bizarre situation of imposing a condition on the licence that the operator will comply with the law however it appears to be necessary. Pursuant to Section 26(1B) of the 1985 Act, the following condition is attached to licence PH1020951:

“No driver under the age of 21 will be used on a service of over 50 km regardless of how that service is registered”

5.1 Transport manager Robert Dennison

I remind myself that my consideration is of Mr Dennison as a transport manager, not the managing director. It had been accepted by my predecessor that transport management be split between operations and engineering and that is not unusual in the passenger vehicle sector. Mr Dennison as MD obviously had wider oversight. He accepted that systems failed in relation to Mr Allan. I was impressed and grateful that he took the effort and expense to both attend the hearing remotely from New Zealand and to instruct legal support. I must consider his career in the round and it has many positives. He had been transport manager for only a few months when the collision happened but of course he was also the managing director for some significant period before that. I do find that he properly undertook the transport manager role. The failure to have in place effective systems to deal with non-regular drivers means that his good repute is tarnished. I make no more adverse finding than that about him as a transport manager.

5.2 Transport manager Paul Clark

Mr Clark was the operations director with direct responsibility for permitting Mr Allan to drive that day. He was the line manager of Mr Scant, the depot manager who assigned the job to Mr Allan without checking his training records. I balance this with the fact that the transport management structure had previously been accepted by a Traffic Commissioner. That structure meant that Mr Clark was responsible for some 900 staff. He cannot be expected to make every single decision in such a management structure. Mr Clark should have had proper arrangements in place for the non-regular drivers. It was, though, clear that he had learned much from what had happened. I find that Mr Clark’s good repute is tarnished by the procedural failing but not lost.

Kevin Rooney

Traffic Commissioner

3 August 2022