Decision

Decision for Tracey Davis and Ian Davis

Published 17 September 2024

0.1 IN THE WELSH TRAFFIC AREA

1. DECISION OF THE DEPUTY TRAFFIC COMMISSIONER FOR WALES

2. PUBLIC INQUIRY HELD AT PONTYPRIDD ON 8th AUGUST 2024

3. TRACEY DAVIS – PG1063828

4. IAN SCOTT EDWARDS DAVIS - PG1091262

5. Background

Tracey Davis is the holder of a Restricted PSV Operator’s Licence authorising two vehicles. The licence was granted on 28th November 2006.

Ian Davis is the holder of a Restricted PSV Operator’s Licence authorising two vehicles. The licence was granted on 26th October 2009.

On 21st February 2024, a DVSA maintenance investigation (MIVR) for Tracey Davis identified substantial failings in maintenance and compliance systems.

The investigation also raised concerns about the use of the Restricted PSV Licence and the role of Brian Davis, the operator’s husband, and his business, Celtic Minibus Ltd, in the operation of the licence.

Celtic Minibus Ltd. had held an operator’s licence from 14th January 2008 until 16th August 2019 when it was revoked owing to a change in legal entity. Tracey Davis and Ian Davis had both been directors of Celtic Minibus Ltd. a business run by Brian Davis.

On the 16th March 2024, a 16 seater minibus displaying an operator’s licence in the name of Ian Davis was encountered in Cardiff. The driver, Philip Davis, stated that he was doing hire and reward work for Ian Davis. Philip Davis was unable to provide evidence of driver CPC qualifications. The vehicle’s tachograph unit had not been locked in by the operator and it was incorrectly fitted.

On 3rd June 2024 a Traffic Examiner Investigation Report (“TEIR”), revealed substantial shortcomings in the compliance systems for Ian Davis’s licence. The operator was failing to manage drivers’ hours/working time and appeared to rely on Tracey Davis to answer questions at interview.

Tracey Davis is the mother of Ian Davis. Apart from the familial links, the DVSA investigation identified close connections between the operation of the two licences which made a conjoined hearing appropriate and beneficial. Both operators were represented by the same solicitor Eliot Willis.

Whilst the evidence was heard together at the hearing, each case, and each operator, is considered on their individual merits for the purposes of this decision.

6. The Public Inquiry

Tracey Davis and Ian Davis attended the Inquiry represented by Mr Eliot Willis, Solicitor.

DVSA Traffic Examiner, Anthony Lewis and Vehicle Examiner, Jason Davies, attended virtually.

7. Findings on the Evidence

Ian Davis failed to demonstrate appropriate knowledge and commitment to run a compliant operator’s licence. Despite holding the licence since 2009 he has attended no formal training although he has now booked to attend an awareness course later this month.

The findings of the DVSA investigation were highly unsatisfactory in respect of drivers’ licence checks, drivers’ hours, working time and other records. The documentation supplied for recent months for the Inquiry raised a number of reservations and questions from TE Lewis.

No assessment has been made of Ian Davis’s maintenance documentation and I make no formal findings regarding it. However, as the maintenance is carried out by the same contractor as for his mother’s vehicles, it is likely that the same concerns would arise around the quality of documentation and the sufficiency of brake tests etc.

Ian Davis produced as his evidence of financial standing to meet the maintenance needs of the vehicles a Lloyds Bank personal account. The account had no income going into that account from his “school contracts”. There were no outgoings associated with the upkeep and maintenance of licensed vehicles, and no payments to any drivers, or, other employees.

He stated that all payments were “cash”. He had no contract of employment or formal agreement with his driver. Asked about the “school contract” with Monmouthshire County Council, he stated that he had no documentation as the contract was with “Celtic”, his father’s business. Again, any payments from Celtic to Ian Davis were “cash” therefore not showing in any bank accounts. He could not remember what he put down on last year’s self-assessment to HMRC regarding PSV income.

In the absence of any formal documentation demonstrating the lawful assignation of that work from Celtic to the operator, Ian Davis, I find that the operator has lent his discs to an unlicensed entity, Celtic Minibus Ltd, for the purposes of meeting their obligations in respect of the contracts.

I find it far more likely that Ian Davis maintained a second 16 seater minibus on his licence for the purposes of “hire and reward” work rather than for purely personal use, as stated in his evidence and accompanying witness statements.

I have regard to the encounter on 16th March 2024 when I find the driver’s admission at the time that he was on a “hire and reward” trip for the operator far more compelling than Ian Davis’s statement, some months later, that it was a shopping trip for his girlfriend and her friends. The vehicle was displaying his operator’s licence at the time and Ian Davis gave no satisfactory explanation for retaining a second vehicle disc if the sole purpose of the second 16 seater minibus was to transport [REDACTED], or for trips for his partner and her friends. I note the Traffic Examiner’s findings that the recent vehicle downloads show the main use of the vehicle during hours associated with school runs and weekend “nights out”, typical hire and reward work, and I find this explanation to be more believable than the operator’s “family weekends away” and “nights out for friends”.

At one point Ian Davis seemed to suggest that the absence of any trace of trading income from his Lloyds Bank statements was down to the fact that he had “another personal account” from Nationwide? On questioning however, he admitted that there were no trading entries in that account either, as it was used purely as a personal account.

In assessing Ian Davis’s credibility and fitness/repute, I also have regard to the inconsistencies in his evidence regarding his main occupation. In his oral evidence he stated that he worked Monday-Friday, as a “full time employee” HGV driver under contract to RMR. That equates to a 40 hour week not the 30 hours contained in his Inquiry statement.

Tracey Davis was subject to a highly unsatisfactory maintenance investigation. Maintenance was being carried out by Brian Davis, her husband, the contractor stated on the licence had not been used since 2020, and PMI records were incomplete or non-existent. There were no daily driver defect reports and an Immediate prohibition had been issued in 22nd March 2022 for a snapped main suspension leaf at a school check.

There was no evidence of rolling road brake tests, a vital safety check, and the assurances provided following the initial visit failed to address this issue.

VE Davies expressed concerns over the operation of the licences apparently being done by Brian Davis/Celtic Minibus Ltd, and not by the licensed sole trader entity.

Tracey Davis submitted a statement in advance of the hearing. She sought to satisfy the “main occupation” criterion, an essential element of a PSV Restricted Licence by broad assertions about her employment and income. She failed to produce pay slips, tax returns for previous years, contracts, bank statements showing trading income and expenses. I find the evidence of main occupation income woefully inadequate.

The statement provides assurances with regard to vehicle maintenance but, again, little detail. The PMI records produced for DVSA examination prior to the Inquiry were produced late and raised a number of concerns with VE Davies. Nevertheless, they were an improvement on the little that went before.

In evidence, Mrs Davis was vague about rolling road brake tests and was embarrassed to admit that she had not realised that it was unacceptable to have the brake tests done days after the PMI and the apparent certification of roadworthiness.

Tracey Davis did not address the VE’s concerns about the true operating entity in her statement. However, when questioned by me she stated that the contracts with the schools were all held by Celtic Minibus Ltd. There were no formal contracting arrangements between Celtic and her sole trader entity and all payments were “cash”. She accepted that this raised substantial doubts about the legitimacy of the arrangements both in respect of operator licensing and HMRC. She accepted that the operator licence discs for Tracey Davis were in fact being lent to Celtic for them to fulfil the school contracts they held, and this was a serious breach of the rules. She had not realised how wrong it was until VE Davies visited.

8. Considerations and Decision

In considering the fitness/repute of the operators and appropriate regulatory action, I weigh in the balance the positive features put forward by their advocate and contained in the brief:

• No previous regulatory incidents
• Tracey Davis has undertaken Transport Manager CPC training and is awaiting examination results.
• An experienced Transport Manager has been lined up to support Tracey Davis in the role, if successful in her examinations and nomination.
• Ian Davis had booked to attend an OLAC.
• Both operators have cooperated with DVSA and the Inquiry and answered questions forthrightly.

I also take into account the personal health issues and family pressures Tracey Davis referred to in her evidence.

Mr Willis asks me to give credit for the operators’ honesty and respect for the Traffic Commissioner and Operator Licensing regime. I cited at the outset the Arnold Transport dicta that “actions speak louder than words” and their actions do not reflect respect for the regime particularly having regard to the fact that they both had past involvement in the Celtic Minibus Ltd. licence. That licence was revoked as long ago as August 2019, and were both highly likely to have been aware of the issues as a close family and business unit.

Their “openness and honesty” would have been  more compelling if the respective statements of the operators had reflected the acceptance of the improper use of both licences for Celtic Minibus and the contrition expressed at the hearing for that use.

The Senior Traffic Commissioner’s Statutory Document No. 13 makes it clear to operators and their representatives that proof of “main occupation” income must be more than “bare assertions” and paragraphs 48 and 49 specify the type of documentation required.

In Ian Davis’s case, the “main occupation” criterion is likely to be satisfied notwithstanding the absence of any formal records of his PSV income. In reality, the fact of his full time employment, and the limited demonstration of appropriate knowledge and control, supports my finding that this licence is being operated by/for the benefit of Celtic Minibus who hold the school contracts which are the main form of declared income.

Whilst it was contended by Mr Willis that there was no attempt to deceive, Ian Davis has failed to demonstrate any commitment to transparency and observation of the rules and I found his evidence to be unconvincing, contradictory and offering little more than broad assurances and promises.

I have regard to the Senior Traffic Commissioner’s Statutory Document No. 10 – The Principles of Decision Making and the Concept of Proportionality at Annex 4 and place the conduct in the “severe” category.

I have been addressed on the consequences of regulatory action by Mr Willis. Ian Davis has one driver who is not “employed”, is paid cash, and would have to look for work elsewhere. I accept that revocation of the licence would cease Ian Davis’s operations, but those operations cannot be allowed to continue when they are shrouded in deceit as to the real operator, payments and the contracts being undertaken.

Taking the above findings into consideration I determine that Ian Davis no longer satisfies the requirement under sec. 14ZB (a) of good repute to hold an operator’s licence. The licence is revoked under sec. 17(3)(d) and sec. 17(3)(aa) - undertakings to obey the laws on driving/operation of vehicles, drivers’ hours and tachograph etc., not fulfilled.

Having found Ian Davis to have effectively allowed an unlicensed entity to use his discs for an extended period and to have failed to have the drivers’ hours/working time controls in place for his hire and reward work, matters essential to public safety and fair competition, disqualification is appropriate and necessary.

Ian Davis is disqualified from holding or obtaining an operator’s licence for 12 months, and from being a partner or director of an entity which holds an operator’s licence, with effect from 1st September 2024.

Tracey Davis fails to meet the “main occupation” criterion having regard to the absence of formal documentation specified in STC Statutory Document No. 13 and the Upper Tribunal. Her statement submitted to the hearing contains scant detail of her main occupation/farming income and she has failed to produce last year’s accounts or any formal documentation showing main occupation income.

I find that her PSV income is likely to exceed her main occupation income. The figure of £[REDACTED] per year is mentioned for “Total Income For Farm” but there is no statement of expenses, tax deductions and declared income. I have regard to the Upper Tribunal reference to potential income of £[REDACTED]  per week from one vehicle operating school contracts and that was in 2015 and this operator has 2 vehicles in use. (2015/050 Ibrar Anif trading as Local Minibus Travel.

Tracey Davis’s income from PSV operation is similarly obscure. Her bank statements shows no transactions in or out, and, again that supports a finding that she is not the true operating entity. When questioned by me she conceded that she was lending the licence discs to Celtic in order for them to fulfil their school contracts with Monmouthshire County Council. She stated that it was only when Jason Davies, the DVSA VE, spoke to her that she realised how wrong it was. Of course, this does not mean that she did not realise it was wrong at the time and I give far less credit to an admission, and apology,  given only under questioning at Public Inquiry.

Both Tracey Davis and Ian Davis had been formally involved at times since 2008 in Celtic Minibus Ltd and Tracey Davis admitted she knew that Brian/Celtic’s licence had ended (been revoked) following a change in legal entity.  

Mr Willis in his final submissions asks me to delay any revocation of the licence(s) to allow Tracey Davis to make a new application for a Standard National licence. Such a concession would send entirely the wrong message to other Restricted and Standard licence holders who have abided by the conditions of their licences.

In breaching the main occupation criterion, Tracey Davis has gained an unfair commercial advantage for a number of years over other operators who would have been able to service the schools contracts with the added expense and scrutiny of a qualified transport manager in place.

The fact that maintenance records, in particular brake tests, were so woefully lacking at the initial DVSA investigation shows a disregard for road safety. Without the most up to date and accurate brake tests, the operator cannot give the firm assurance that her buses are always maintained to the “highest standards”.

Taking the above findings into consideration I determine that Tracey Davis no longer satisfies the requirement under sec. 14ZB (a) of good repute to hold an operator’s licence. The licence is revoked under sec. 17(3)(d) and sec. 17(3)(a) - statement of expectation not fulfilled re. main occupation and sec. 17(3)(aa) - undertaking to maintain vehicles in a fit and serviceable state, and to keep proper and complete records, not fulfilled.

I determine that for the prolonged misuse of the Restricted Operator’s Licence held by Tracey Davis, combined with the failure to have basic maintenance records in place prior to the DVSA visit, a period of disqualification is appropriate and necessary.

Tracey Davis is disqualified for 12 months from holding an operator’s licence and from being a partner or director of an entity which holds an operator’s licence, with effect from 1st September 2024.

Anthony Seculer

Deputy Traffic Commissioner

9th August 2024