Decision

Decision for Travel Express Ltd (PD1140735) & Transport Managers: Mr Kishan Chumber & Nirmal Johal

Published 5 June 2024

0.1 In the West Midlands Traffic Area

1. Written Decision of the Traffic Commissioner

2. Public Inquiry held on 10 April 2024 at Birmingham

3. Operator: Travel Express Ltd (PD1140735) & Transport Managers: Mr Kishan Chumber & Nirmal Johal

4. BACKGROUND

Travel Express Ltd (the “operator”) was granted a standard national public service vehicle operator’s licence under reference PD1140735 in March 2016. It currently has a total licence authorisation of 15 vehicles. The sole director is Mr Kishan Chumber and there are two transport managers specified on the licence; Mr Kishan Chumber and Mr Nirmal Johal.

As a result of an unsatisfactory Maintenance Investigation Visit Report (“MIVR”) undertaken by the DVSA on 21 October 2023 and as a result of an unsatisfactory BOAM report dated 01 December 2023 a decision was made to call this operator to a public inquiry.

Both the operator and its two transport managers were called to that public inquiry by call up letters dated 05 March 2024.

The public inquiry was listed for a full day and was held at the Office of the Traffic Commissioner in Birmingham on 10 April 2024.

5. PUBLIC INQUIRY HISTORY

This is the fourth public inquiry for this operator. The first two public inquiries were held on 02 March 2016 and 10 November 2017. The third Public Inquiry was held on 20 November 2019 before the then Traffic Commissioner Mr Denton where it was found as fact that there had been poor maintenance and 51% of local registered bus services had not been operated on time.

In the written decision of Traffic Commissioner Denton dated 19 December 2019 it was said:

“….     In some ways I regret having re-instated Mr Chumber’s good repute at the beginning of 2019. While he had fulfilled TC Jones requirement that he retake and pass the transport manager CPC exam and there had been a reduced rate of three prohibitions in the two year period 01 January 2017 to 31 December 2018, the restoration of Mr Chumber’s repute was followed by seven roadworthiness prohibitions in 2019 and a very poor MOT pass rate of 65%. The same timetabling incompetence which had caused TC Jones to ban Mr Chumber in 2016 from any involvement in timetabling has re-emerged since that ban was lifted in January 2019, and there is some evidence that vehicles have been deliberately run a few minutes ahead of rivals, regardless of the timetable.

          It is difficult to reach any other conclusion than that Mr Chumber has slipped back to his old slipshod methods of management, timetabling and operating. I accept that on the whole he has good intentions and is not setting out deliberately to fail to comply with vehicle roadworthiness requirements, but I fear that history suggests that he may not have it in him to be a compliant operator over an extended period of time.

Part of the problem appears to be that Mr Chumber is spread too thinly. He is responsible as a director for the running of the business generally, as a transport manager for scheduling, driver management and discipline and general oversight of compliance, and all this while himself performing much of the maintenance on the company’s vehicles.

…

          I have come very close to removing Kishan Chumber’s good repute as a transport manager. I have decided to refrain from doing so BUT: in order for this licence to continue and for him to retain his good repute I require him to step back from some of the responsibilities which are clearly too much for a fleet of this size. To that end, he must by 29 February 2020:

…

ii)        appoint an additional transport manager with lead responsibility for timetable planning and monitoring and management and disciplining of drivers.

…

          I have also accepted undertakings offered by the operator concerning roller road brake testing and the frequency of vehicle inspections…

          This is really the operator’s last chance to get things right. I doubt the licence could survive another public inquiry.”

On that occasion the operator was directed to pay a financial penalty of £6,000 for the untimely running of its registered services and the conditions on the licence were varied such that the licence authorisation was reduced from 20 vehicles to 15 vehicles on an indefinite basis.

Neither the financial penalty decision nor the regulatory action decision were appealed.

As a result the decision Traffic Commissioner Denton was the starting point in this case.

6. PUBLIC INQUIRY ON 10 APRIL 2024

Appearing for the operator was the sole director and transport manager Mr Kishan Chumber together with the second transport manager Mr Nirmal Johal. They were represented by Mr M Oliver, specialist road transport Solicitor.

As a witness for the DVSA was Mr Austin Jones who was the vehicle examiner who undertook the MIVR and also DVSA officer who completed the BOAM report.

As a preliminary matter I confirmed with Mr Oliver the papers in the case and asked if there were any matters that Mr Oliver wanted to raise before the public inquiry started. I was grateful to Mr Oliver for his work over the Easter Bank Holiday weekend as he was able to bring me up to date with the operator’s level of timeliness for its registered services.

Having undertaken preliminary matters I heard evidence from Mr Austin Jones, Mr Chumber and Mr Johal before closing submissions were made on behalf of the operator and the two transport managers. I then reserved my decision into writing.

7. BURDEN AND STANDARD OF PROOF

The burden of proof was upon the DVSA to prove any allegations made against the operator and/or transport manager(s). The standard of proof was the civil law standard, the balance of probabilities. In other words what is more likely than not to have occurred.

Where “reasonable excuse” is raised by an operator to explain why a service could not be operated on time then the burden of proof is upon them to prove that it was more likely than not that a reasonable excuse was present at the time.

8. FINDINGS OF FACT

After carefully considering all of the evidence I have made the following findings of fact after applying the correct burden and standard of proof:

8.1 Maintenance

• At the previous public inquiry in 2019 a poor MOT pass rate and prohibitions including one for a tyre were clearly areas of concern to Traffic Commissioner Denton; and

• The evidence of vehicle examiner Austin Jones in his MIVR stood up to the limited cross examination that was applied to it. I found that the evidence of vehicle examiner Jones contained in the MIVR, and in his oral evidence relating to that MIVR, was credible, cogent and persuasive and I accepted it as such; and

• The allegations made by vehicle examiner Jones are proven and in particular:

• 9 of the 13 areas examined in the MIVR were found to be “unsatisfactory”. None should have been marked as “unsatisfactory”; and

• An immediate prohibition was imposed at the fleet check undertaken at the time of the MIVR on 21 October 2023 for a tyre worn below the legal limit of 1mm on an outer nearside tyre (i.e. the tyre nearest to the kerb on that axle). The tyre was found to have just 0.35mm of tread. The vehicle examiner found “…perusal of maintenance records detail that the tyre was being reported as low on previous inspection records including a record dated 10 October 2023. There were no reports of low tyre tread on driver defect records in and around the date of the prohibition being issued.” The confirmation in oral evidence by the vehicle examiner that this “probably did not just happen, it was a longer standing defect” is also found to be more likely than not to be correct. The imposition of an “Immediate” prohibition meant that this vehicle was not roadworthy; and

• The operator accepted that this vehicle had been in service with this defect present. Therefore an unroadworthy vehicle (that put road safety at risk as a result) had been in service on a public road carrying passengers; and

• Given this wear was to the outer tyre, and given the longstanding nature of the wear, it should have been picked up previously on a walk round inspection by a driver. It was not and failing to do so created a risk to road safety; and

• The failure of a driver to spot this defect is not surprising given the operator was also criticised in the MIVR for having an “ineffective system” for walkaround checks undertaken by drivers with the now proven vehicle examiner’s allegation that “…it is evident that driver related defects are present at routine safety inspections. Defects that have attracted both prohibitions and advisory notices tend to be of a driver related type, this indicates an ineffective driver walk round procedure. Tyres close to legal limit are frequently reported on routine safety inspections but subsequent driver defect records record “nil” defect”. The failure to do any, or any effective, walk round check of vehicles by drivers created a risk to road safety; and

• At the time of the MIVR, and since the public inquiry in November 2019, there had been 62 appointments for annual test resulting in a 16.13% final fail rate which is more than double the national average of 7.28%. An MOT is the one day of the year known about in advance when the operator knows a vehicle has to meet the minimum standard of roadworthiness. Not only did this operator fail to do that, despite the previous criticism at the public inquiry in 2019 for its MOT failure rate, but it also failed to do that despite having an IRTEC qualified mechanic. The IRTEC qualification is regarded as an industry leading standard. The high MOT failure rate also meant that it was more likely than not that the failure item(s) upon the vehicles presented to the MOTs were defects that would have been in place when that vehicle had been in service previously to the MOT. Those defects theefore created a risk to road safety; and

• The specific undertaking relating to roller road brake testing for all vehicles every 12 weeks given to Traffic Commissioner Denton at the public inquiry in 2019 was not fulfilled with the vehicle examiner confirming “…it could be deemed that not all vehicles within the fleet meet the 12 week requirement.”

• From the SIPCAT report attached to the MIVR it is clear that recent (past 12 months) MOT failures have included vehicles presented with multiple failure items present, for example:

• YX61BXH was presented for MOT on 10 October 2023 and failed for defects found with its brakes and with the aim of its headlamps; and

• YX10FEJ was presented for MOT on 10 July 1023 and failed for defects found with accessibility features, brake systems and components, direction indicators and hazard warning lamps and for the aim of its headlamps.

• Failures for multiple items at an MOT demonstrate a very poor standard of maintenance.

• Whilst I noted that the overall prohibition rate is not high as a percentage of vehicles examined, it was the nature of the prohibition imposed on 21 October 2023 for the worn tyre that gave me serious concern; not only did I consider it to be a road safety critical defect per se, I could not, from the evidence before me, be satisfied that Mr Chumber was checking tyres in the manner he claimed in his oral evidence and I could not be satisfied that drivers were doing any, or any effective, walk round check of the vehicle before it went into service on a public road. Those adverse findings go directly to the issue of trust and good repute.

• From the proven allegations in the MIVR it cannot be said that Mr Chumber, as a transport manager, was exercising effective and continuous management of the transport undertaking. Were he doing that, especially as I was told he was spending more of his time in the garage, then the adverse findings in the MIVR would not have been present.

• Equally, as the sole director, it was clear that at the time of the MIVR Mr Chumber was not effective in ensuring that the general undertakings on the operator’s licence that related to maintenance were being fulfilled, in particular that:

• Vehicles, including hired vehicles, are kept in a fit and serviceable condition [breached - proven by the immediate prohibition at the MIVR, by the high MOT fail rate and because driver spottable defects were being found at PMIs showing the vehicle was in service with that defect(s) previously to the PMI]; and

• Drivers report promptly any defects or symptoms of defects that could prevent the safe operation of vehicles and that any defects are recoded in writing [breached - proven by the failure of drivers to spot, and record, defects that are identified at PMI and defects that gave rise to a probation, such as the immediate prohibition given at the MIVR for the worn tyre when no driver had spotted the clear long standing wear to that tyre].

• The sole director/transport manager failed to fulfil the specific and formal promise he gave to Traffic Commissioner Denton at the public inquiry in 2019 that “vehicles will be given roller brake tests at least every 12 weeks.” This was breached, as evidenced by vehicle examiner Jones in the MIVR, when no relief from that specific undertaking was ever granted by Traffic Commissioner Denton or myself as the current Traffic Commissioner. A breach of any undertaking is a matter that goes to the issues of trust and good repute. The breach of a specific undertaking given in a public inquiry to avoid more serious regulatory action (as this specific undertaking clearly was) has an even greater adverse impact upon the issues of trust and good repute.

• From the proven allegations in the MIVR it cannot be said that Mr Johal, as a transport manager, was exercising effective and continuous management of the transport undertaking. Were he doing that then the adverse findings in the MIVR would not have been present. He was still responsible for the maintenance side of the transport operation in his statutory capacity as a transport manager. In addition, he also failed to ensure that the above specific undertaking relating to roller road brake testing was fulfilled. These are serious failures on his watch.

• The supplemental maintenance report from vehicle examiner Jones dated 08 April 2024 showed a significant improvement compared to what he had found at the MIVR on 21 October 2023. There had been four roadside encounters with no prohibitions and the last six presentations for MOT had resulted in two initial fails (not good) and four passes. Documents appeared to be filled out correctly too and roller road brake tests had been completed on a 12 weekly basis in accordance with the specific undertaking recorded on the operator’s licence.

• Mr Chumber assured me that he was now thoroughly checking PMI sheets against driver defect reporting sheets to ensure drivers were doing a proper walk round inspection and that vehicles are given a thorough PMI. However, at page 102 of the operator’s bundle referred to by Mr Oliver is a driver defect reporting sheet for vehicle LJ56 LDC dated 04/12/23. It refers to a wiper blade “falling apart” spotted by the driver with the wiper blade recorded as being changed. The recorded mileage on that driver defect reporting sheet is 477670.

• The PMI sheet for VRM LJ56 LDC appears at pages 100 and 101. That records the vehicle going in for its PMI on 01 December and the vehicle coming out of its PMI on 04 December 2023. That means the driver could only have completed their walk round check for this vehicle after it came out of its PMI on 04 December 2023.

• Box 1 on the first page of the PMI sheet shows the wiper blades were apparently checked because there is a tick in the box. A tick means there is no fault found. The recorded mileage on the PMI sheet is 477670, exactly the same as the driver defect reporting sheet for the same vehicle on the same date. Therefore, how is the driver defect reporting sheet correct if the PMI was completed immediately before the driver did their walk round check? It is a huge leap to go from the PMI sheet recording nothing being wrong with the wipers to a wiper blade being reported as falling apart by the driver. How, if Mr Chumber was checking the PMI sheets and driver defect reporting sheets properly was this apparent significant inconsistency not found and investigated because either the PMI was not done properly (or at all) and the driver defect sheet is correct or the PMI sheet is correct and the driver defect sheet records a false statement? Both the PMI sheet and the driver defect reporting sheet cannot be correct for this vehicle on 04 December 2023.

• Mr Chumber failed to give me any persuasive explanation to the above questions despite telling me how thoroughly he checked all of the maintenance related paperwork.

• The operator had now, I was told, employed an additional member of staff to assist the inhouse mechanics which is why the supplemental report from vehicle examiner Austin Jones showed such improvements. Credit is given for that and for the improvements in compliance detailed in the supplemental report from the vehicle examiner.

8.2 BOAM report and the punctuality of this operator’s registered bus services.

The starting point for this operator was the finding by Traffic Commissioner Denton at the public inquiry in 2019 when he found that 51% of all registered services were not operating on time with “a degree of reasonable excuse” for which the operator received a £6,000 penalty under section 155 of the Transport Act 2000. From that decision the operator was clearly given a last chance and was clearly expected to improve its punctuality after that public inquiry so that all of its services operated on time.

What is “on time”? The Upper Tribunal have accepted (and indeed endorsed) the Traffic Commissioner’s long-standing position that “on time” means a bus will not depart from a bus stop more than one minute before the registered departure time and no more than 5 minutes after that time. Operators are meant to operate at least 95% of all of its registered bus services on time. A 5% window of tolerance is given to allow for unexpected/unforeseeable events that may prevent a particular service(s) from being on time.

The finer details of how this works in practise can be found in Statutory Document 14 issued by the Senior Traffic Commissioner for Great Britain.

There is a simple, but very cogent, reason for requiring at least 95% of bus services to operate on time; so that travelling members of the public know when a bus will depart from any given bus stop with confidence so that they can rely on the timetables provided for those bus services.

It therefore follows that:

• When a bus service fails to operate the public are unable to travel per se; and

• When a service departs early the public are unable catch that bus unless they happened to be at that bus stop sufficiently early themselves; and

• When a service departs late then the public will be late arriving wherever they need to be.

Failing to operate a service at all is a very serious matter when it is due to more than the infrequent and unexpected break down of a vehicle or other unexpected reason because the public (a) cannot get to where they expect a bus to take them and (b) it suggests a serious lack of resilience/contingency planning on the part of a bus operator; a lack of spare vehicles and/or having insufficient additional drivers which can be called upon when required.

When a bus leaves a bus stop early that is a conscious decision by the driver. Nothing makes the driver leave early other than their own choice and this should be dealt with robustly by the operator to stop it happening as it adversely affects the travelling members of the public.

When a bus leaves late, and a pattern of this happening forms, then it suggests that the planning of the route, and its timetable, need to be reviewed and if necessary changed.

All operators are expected to regularly review the punctuality of their registered bus services (looking backwards in time to do that). All operators are also expected to look ahead to known future events that may adversely affect the punctuality of their registered bus services.

By looking backwards and forwards allows changes to the times along the registered services to be made either by a normal application to vary the timetable, which often takes about 42 days from start to finish, or by a short notice variation or cancellation application.

A normal application to vary a timetable will often be used for known future events such as planned (and therefore publicised) roadworks for example or some other major event such as the Commonwealth Games in 2022 hosted in Birmingham. Common sense prevails in other circumstances.

A short notice application to vary or cancel a registered service has always been available for unforeseeable events; for example emergency gas works may have to be undertaken that suddenly cause a road to be shut to all traffic for the foreseeable future whilst the necessary works are safely completed. In such a situation a route that previously went down that road could be changed at short notice together with the effected parts of the timetable along that route.

Often a short notice variation or cancellation application can be considered and a decision made within 7 days.

The overriding purpose of either a normal variation application or a short notice application to a registered bus service is to protect the travelling members of the public by putting them front and centre so that they can rely upon the published timetable to get them from A to B on time.

The BOAM report prepared by Mr Austin Jones is one of the most detailed and well planned BOAM reports I have seen for a very long time. Mr Jones looked at 207 journeys in 11 geographical areas across this operator’s registered bus service network on 17 days over a two month period from 05 August 2023 until 05 October 2023. This meant that it captured data for services over the school summer holiday period as well as capturing data outside of the school summer holiday period.

None of the journeys looked at by Mr Jones were frequent services. They were all services for which a bus, at any given bus stop, had a departure time stated on the corresponding timetable for that service.

The results of Mr Jones’ investigation were shocking.

50% of the 207 journeys observed were not on time.

61 of the 207 journeys observed failed to operate at all (29.4%).

Of the 146 journeys that did operate 32 departed early (21.9%) and 9 were late (6.16%).

In other words, 93/207 journeys observed were either no-shows or early departures which equates to 45%, or nearly half, of the total number of observed journeys.

The travelling members of the public clearly suffered significant inconvenience, disruption and frustration by this operator over the course of this bus monitoring exercise.

At the time of the bus monitoring exercise the operator needed 11 vehicles and 11 drivers to meet its peak vehicle requirement. It only employed/had available 11 drivers. It therefore lacked any resilience to deal with periods of holiday, sickness, or people moving on to a new job elsewhere.

The purpose of 95% of services having to run on time is, as I have already said, to allow 5% band of tolerance for services that miss the target of being on time because of unexpected/unforeseeable events.

Here 50% of services were not on time. Was there a reasonable excuse for all or any of those non-compliant services?

The short answer is “no” and in the alternative not enough to materially affect the penalty that must be paid under section 155 of the Transport Act 2000.

The burden of proof to establish a reasonable excuse is upon the operator. In my determination it requires persuasive evidence to meet the standard of proof I have already explained at paragraph 20 above. That means an operator must record contemporaneously an unexpected event that may later become the basis of arguing a reasonable excuse. Such tangible evidence is significantly preferred to general oral assertions made at a later stage which are not date, time and event specific.

Here the context to looking at whether a reasonable excuse was proven in this case must also be taken into account. The context is that the operator appeared before Traffic Commissioner Denton at a public inquiry on 20 November 2019 where 51% of its registered services were not running on time. On that occasion it blamed, amongst other reasons, driver shortages to establish a reasonable excuse.  No doubt Traffic Commissioner Denton will have explained to the operator that it could not rely on that excuse going forward if it did not have additional available drivers to meet any future unexpected losses to its core of drivers so that its peak vehicle requirement could be met. I do not think it more likely than not that the warning given at paragraph 20 of Traffic Commissioner Denton’s decision did not refer in whole, or in significant part, to that.

I also take into account, by way of context, the quite shocking fact that this operator’s timetables have not been changed in any way since the public inquiry in November 2019 right up to the date of this public inquiry. In other words, no attempt has been made by this operator to meet the ever-changing traffic and road network problems along all of its registered routes.

Reviewing and amending a timetable, as I have already said, is critical to ensuring that the travelling members of the public are put front and centre so that the buses they expect to catch actually turn up and actually depart on time.

Other operators regularly review and amend their timetables. Indeed this operator told me that it was aware that National Express amended its timetable to take account of school holidays and the improved changes to traffic flow that school holidays normally cause.

So why did this operator never amend any of its timetables? No persuasive answer/explanation was ever given to me save that on the issue of short notice applications to vary/cancel a service both Mr Chumber and Mr Johal claimed they were not aware of such a provision. I reject that argument without hesitation because:

• Both gentlemen are experienced in the PSV industry and it is common knowledge for operator’s of registered services that you can make a short notice application to vary/cancel a service; and

• Because both gentlemen are PSV transport managers who are meant to know the law, rules and regulations concerning PSV operations; and

• Mr Johal was specifically recruited to comply with the written decision of Traffic Commissioner Denton to have “…lead responsibility for timetable planning and monitoring…”; and

• Any argument that they still did not have the necessary knowledge, despite being PSV transport manager CPC holders, evaporates when I apply the two Upper Tribunal authorities of MGM Haulage and Recycling Ltd 2012/030 and LA & Z Leonida T/A ETS 2014/024

The MGM authority makes it clear that an operator/transport manager cannot plead ignorance to the advice and guidance that is in the public domain. That would therefore include the Statutory Documents issued by the Senior Traffic Commissioner that have been in the public domain on the Gov.UK website for over 10 years and in particular Statutory Document 14, paragraphs 25 and 26, in the current version of that Statutory Document.

The LA authority makes it clear that operators are meant to know the law required to ensure a compliant operation.

The operator argued a shortage of drivers as a reasonable excuse. I reject that argument for the following reasons. First, that argument was used at the previous public inquiry and as a result this operator should have ensured that it had sufficient additional back up drivers available going forward to meet its peak vehicle requirement. Second, this operator had 11 drivers for a peak vehicle requirement of 11 vehicles at the time of the BOAM exercise and therefore had no additional drivers present to meet instances of holiday, sickness or drivers leaving when a back up contingency of drivers should have been present. Third, whilst it was a recognised industry problem that there was a shortage of PSV drivers, operators were expected to be agile and adapt; for example paying for non-driving staff to take the PSV driving entitlement test so that they could be called upon when required as back up drivers thus negating the need to look for external PSV drivers. No evidence of that happening was presented to me. Fourth, drivers leave because they often find better paid work elsewhere. No persuasive evidence was presented to me to show that those drivers who are said to have left this operator were not offered the same or greater remuneration were they to stay. Fifth, if all else failed this operator should have varied/cancelled its affected timetable(s) by short notice application if necessary so that the travelling members of the public are put front and centre. That simply did not happen here.

The operator claimed roadworks caused congestion and cited Cannings Road as an example where roadworks had been in place for over a year. I reject roadworks as a blanket reasonable excuse because (a) in the Cannings Road example no attempt has ever been made to vary the timetable to take account of the known long-standing congestion and (b) no attempt was made to vary the timetable of any other route adversely affected by roadworks and (c) no tangible contemporaneous evidence of other roadworks adversely effecting services was presented to me.

The failure of this operator to ever make any application to vary the timetable of any of this operator’s registered services since the last public inquiry wipes out, in and of itself, most, if not all, arguments of reasonable excuse save for the most infrequent and unforeseen of events which are meant to be swept up in the 5% band of tolerance I have already explained.

Looking now at one area of significant concern to me were the 32 instances of early departures. As I have already stated, an early departure is the conscious decision of the driver to leave a bus stop more than one minute before the scheduled departure time.

I raised the issue in the hearing that if there were only 11 drivers, and there were 32 instances of early departures, then mathematically that would surely mean either all drivers had more than one instance of departing early recorded against them or a few drivers had a lot of early departures recorded against them but where was the tangible evidence of robust disciplinary action being taken against repeat offenders to protect the travelling members of the public?

The answer was that only one driver, who had only been with the operator for a few months, was dismissed. There was no tangible evidence of any disciplinary action taken against any other drivers presented to me. Why?

The answer to that question was given by Mr Johal who confirmed that a commercial decision was made not to deal robustly with offending drivers because the operator was fearful that drivers would leave if that happened. In other words the operator knew there was a problem with early departures and for a commercial reason allowed, caused or permitted that problem to persist at the expense of the travelling members of the public. That is totally unacceptable and a matter that goes to directly to the issues of trust and good repute. In addition the operator cannot claim, as a reasonable excuse, driver error when it made no effective effort to correct known and unacceptable driver conduct.

Therefore, I have not been persuaded that this operator has proven any reasonable excuse for its appalling level of punctuality outside of the permitted 5% band of tolerance.

I now turn to improvements made. I was told of these in evidence and in closing submissions from Mr Oliver.

Mr Oliver had very helpfully brought me up to date with the operator’s punctuality across its registered services up to the date of the public inquiry. Indeed he had worked over the Easter Bank Holiday weekend to complete that exercise and I commend him for doing so. That exercise revealed that the overall punctuality was now showing 22.4% of services were not on time; in other words only 77.6% of services were running on time.

I was asked to consider that this was an improvement for which credit should be given. I am afraid I cannot see it that way as the operator told me, on the one hand, about all of the improvements that it had made but yet the up-to-date data showed, on the other hand, that the operator was still nowhere near running 95% of its services on time despite those improvements. From the evidence before me the operator had gone from being hopelessly non-compliant to being very non-compliant. I cannot give meaningful credit (evidential weight) for that especially as Statutory Document 14 makes it clear that the cut off mark to call an operator to a public inquiry for non-punctual registered bus services is an overall punctuality level of 80% or less. Here the operator still would have been called to a public inquiry based on the up-to-date data.

Regardless of the punctuality outcome from the changes made within the transport operation, I do give the operator credit for recruiting more staff, investing in new timing related equipment and the, now, greater monitoring of its registered services.

8.3 Summary

Pulling everything together for maintenance; since the last public inquiry in November 2019 two serious issues relating to maintenance identified then were found to have returned at the time the MIVR was undertaken on 21 October 2023: a serious prohibition for a long standing defect and a poor MOT final pass rate. Further, drivers were not doing an effective walk round inspection of vehicles before they went into service on a public road. In addition, the specific undertaking given at the last public inquiry relating to roller road brake testing was breached and I was not at all satisfied that Mr Chumber was effectively checking maintenance related paperwork until very recently with a clear example of why I have reached that finding having already been given in this written decision. This all occurred on the watch of both transport managers.

Pulling everything together for bus punctuality; this was found to be extremely poor with 50% of services not being on time. Of the 207 journeys observed, 45% of the buses either did not turn up or left more than one minute before the scheduled departure time. No effective management of timetable planning, monitoring or management had been undertaken by Mr Johal who had specifically been brought in to cover these areas of compliance. None of this operator’s timetables had ever been varied/cancelled since the public in November 2019. No reasonable excuse was proven beyond the 5% band of tolerance set out in Statutory Document 14. No, or no effective, management or monitoring of Mr Johal was undertaken by Mr Chumber. In any event, as at the date of the public inquiry the up-to-date data given to me by the operator showed that 22.4% of this operator’s registered services were still not running on time; in other words only 77.6% of its services were on time when it is expected that 95% of services will be on time.

9. BALANCING EXERCISE

I repeat the credit (evidential weight) that I have given to the positives identified in paragraph 21(p) above and I repeat the credit I have given in paragraph 67 for improvements made to bus punctuality. Against that credit is the starting point from the last public inquiry in November 2019 and the serious failings in maintenance and bus punctuality thereafter all of which attract very significant evidential weight.

Looking at the operator as it appeared before me at the public inquiry, and after carefully balancing the weight I have given to the positives against the weight I have given to the negatives, it is very clear that the balance only tips in one direction, in favour of the negatives.

I have then considered Statutory Document number 10 issued by the Senior Traffic Commissioner and Annex D therein in particular.

The following positives and negatives were then identified:

9.1 Positives

• Sufficient and effective changes made (tangible evidence) to ensure [maintenance] compliance – but this caveated below; and

• Low prohibition rate – but I have already caveated this in my decision at paragraph 21(f) above; and

• Operator co-operated with the enforcement investigation.

9.2 Negatives

• Deliberate/reckless act(s) by the operator/drivers leading to road safety risk or unfair competition [the failure to undertake any, or any effective, walk round inspections leading to driver spottable defects being found at PMIs and on the prohibition dated 21 October 2023 for the worn tyre]; and

• Persistent offending – previous unsatisfactory maintenance investigations or public inquiries; and

• Ineffective management control [maintenance and bus punctuality] and appropriate systems and procedures; and

• Ineffective driver/maintenance staff training with appropriate monitoring and discipline [maintenance and bus punctuality, particularly in relation to early departures]; and

• Insufficient and/or ineffective changes made to ensure future compliance [particularly in relation to bus punctuality as shown from the up to date data];and

• Road safety critical defect present on an in service vehicle when the prohibition for a worn tyre was imposed on 21 October 2023; and

• Low MOT pass rate and multiple failure items at MOT.

Even after giving the operator as much credit as I possibly could give to it this case still falls into the “Severe to Serious” entry point for consideration of regulatory action and in my determination, given the compliance history of this operator, it is more in the “Severe” category than the “Serious” category.

10. DECISIONS AND REASONS

I have repeated all of my findings in this case, including the credit that I have given to the operator, and then asked the question posed by the Upper Tribunal in the appeal case of 2009/225 Priority Freight; “How likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime?”

It is here that I explain what I said in paragraph 73(a) above about there being a caveat. I have reminded myself of what Traffic Commissioner Denton said in his written decision after the public inquiry in 2019 and I also reminded myself that Traffic Commissioner Denton had dealt with Mr Chumber several times and had, through those interactions, an opportunity to better understand Mr Chumber’s personality and competence as a result.

Traffic Commissioner Denton said:

“It is difficult to reach any other conclusion than that Mr Chumber has slipped back to his old slipshod methods of management, timetabling and operating. I accept that on the whole he has good intentions and is not setting out deliberately to fail to comply with vehicle roadworthiness requirements, but I fear that history suggests that he may not have it in him to be a compliant operator over an extended period of time.”

From the evidence in this case, from which I have found my facts, I fully agree with what Traffic Commissioner Denton said because it seems to me more likely than not that Mr Chumber has once again “…slipped back to his old slipshod methods of management, timetabling and operating…” and it also seems to be more likely than not from the MIVR and BOAM report before me that “…[Mr Chumber] may not have it in him to be a compliant operator over an extended period of time.” I go one step further and conclude that he does not have it in him to be a compliant operator, there is no “may” in it anymore.

Looking holistically at all of the evidence I simply do not trust Mr Chumber and I certainly do not trust him to be compliant in the future. His track record speaks for itself and I am satisfied that it is more likely than not that he would, again, go back to his non-compliant manner of operating.

When I also consider the failure of Mr Johal to ensure compliance across the operator’s registered bus services there is absolutely zero trust left with this operator.

Returning to the Priority Freight question I now answer that question in the negative.

I have then asked myself the question posed in the appeal case of 2002/217 Bryan Haulage (no.2); “is the conduct such that the operator ought to be put out of business?”. Repeating everything I have said before I have determined that it is proportionate to answer that question in the affirmative. As a result the operator has lost its good repute and it now is a mandatory requirement that I revoke this operator’s licence which I do under section 17(1)(a) of the Act.

The good repute, as a transport manager, for Mr Chumber after the last public inquiry was clearly left in a very precarious position. He has, since then, been shown to be ineffective as a transport manager for both maintenance compliance and for bus punctuality compliance. He was never barred by Traffic Commissioner Denton from being involved with bus compliance, he was merely (see paragraph 16(ii) of Traffic Commissioner Denton’s written decision) required to appoint an additional transport manager with lead responsibility. He was at all material times still responsible as a transport manager for bus punctuality compliance.

Repeating everything I have already said I am satisfied that Mr Chumber lost his good repute as a transport manager at the time of the BOAM/MIVR and it had not been restored before this public inquiry was completed on 10 April 2024. Mr Chumber is no longer of good repute as a transport manager and that decision is made under Schedule 3 paragraph 7A(1) of the Act.

It is a mandatory requirement that when a transport manager loses their good repute they must be disqualified as a transport manager. Annex D in Statutory Document 10 issued by the Senior Traffic Commissioner sets a tariff of 1-3 years as an entry point for a period of disqualification if imposed at the first public inquiry. This is Mr Chumber’s fourth public inquiry but for the purposes of reaching a fair and proportionate decision I shall treat it as his second public inquiry as I do not have sufficient facts about the first two public inquiries before me.

Repeating everything I have already said and looking at Mr Chumber in the rounds as a transport manager, I have determined that the proportionate regulatory action is to disqualify him as a transport manager for 4 years with immediate effect until 2359 hours on 03 May 2028 under Schedule 3 paragraph 7B(2) of the Act. There is nothing to be gained by setting the starting date for this order of disqualification to a date in the future.

Despite giving this case a lot of thought I cannot think of any rehabilitation measure for Mr Chumber.

Mr Johal was appointed to be the lead person responsible for bus punctuality. He was also responsible for maintenance as that still formed part of his statutory function. His failure to ensure any meaningful bus punctuality right up to the date of this public inquiry proves, so that it is more likely than not, that he not only lost his good repute at the time of the BOAM exercise but it was never restored before this public inquiry was completed on 10 April 2024. Mr Johal is no longer of good repute as a transport manager and that decision is made under Schedule 3 paragraph 7A(1) of the Act.

This is Mr Johal’s first public inquiry. I remind myself of the tariff set out in Statutory Document 10. Repeating everything that I have said, and looking at Mr Johal in the rounds as a transport manager, I have determined that it is proportionate to disqualify him, with immediate effect, as a transport manager for 3 years to reflect not only the gravity of his failings (maintenance but in particular bus punctuality) but also the inconvenience, miserly and frustration he will have materially contributed to have caused to the travelling members of the public. In other words his disqualification is also to have a deterrent effect.

Mr Johal’s period of disqualification ends at 2359 hours on 03 May 2027 and my decision is made under Schedule 3 paragraph 7B(2) of the Act. There is nothing to be gained by setting the starting date for this order of disqualification to a date in the future.

Again, like Mr Chumber, I cannot think of any rehabilitation measure for Mr Johal.

This operator is now no longer professionally competent. It is therefore a mandatory requirement that I revoke this operator’s licence which I do under sections 17(1)(a) and 17(1)(b) of the Act.

Repeating everything I have already said and despite the credit that I have given to this operator I also determine that it is proportionate to revoke this operator’s licence under my discretionary powers pursuant to section 17(3)(aa) [breach of the general undertakings I specifically detailed in this decision ] and also section 17(3)(c) [the prohibition for a worn tyre imposed on 21 October 2023].

All orders of revocation take effect at 2359 hours on Sunday 16 June 2024. That is to (a) allow for the orderly winding down of this transport operation and (b) for an alternate provider to be made available for any home to school work that this operator may be involved with and/or to take over any registered services from this operator.

All bus services registered by this operator will be cancelled by this decision with effect from 2359 hours on Sunday 16 June 2024.

The operator is no longer of good repute and it is no longer professionally competent. To regularise the legal position until the revocation of this operator’s licence takes effect I hereby grant a period of grace to cover the loss of good repute and the loss of professional competence until 2359 hours on 16 June 2024.

I gave consideration to making an order under section 26 of the Transport Act 1985 but the facts of this case were so serious that the only decision the evidence compelled me to make was to revoke this operator’s licence and to bring this transport operation to an end.

No order is made under section 28 of the Act.

This operator has caused an unacceptable and significant inconvenience to travelling members of the public. Whilst there will be further possible disruption caused by the cancellation of all of this operator’s registered bus services from 2359 hours on Sunday 16 June 2024 it is hoped that a competent and reliable new provider will take over the routes destined to be lost and thus doing so will allow the public to have confidence once again in any new timetables that are registered and thereafter published.

10.1 Financial penalty

Repeating everything I have said before this operator has been found to have operated only 50% of its services on time as at the date of the BOAM report and only 77.6% of its services on time as at the date of the public inquiry. There was no, or no meaningful, reasonably excuse(s) proven by the operator and in any event the operator’s own most recent bus punctuality evidence shows only 77.6% of its bus services were operated on time.

Statutory Document 14 is, at paragraph 67, clear about the entry points for a financial penalty under section 155 of the Transport Act 2000.

In this case, from the facts as I have found them to be, I have no hesitation in determining that this operator must pay, pursuant to section 155 of the Transport Act 2000, the maximum financial penalty of £550 for each vehicle authorised on its operator’s licence being 15 x £550 = £8,250.

This sum must be paid in full before this operator’s licence is revoked at 2359 hours on 16 June 2024. Failure to do so will have a significant adverse impact on the issue of good repute upon any future application for an operator’s licence made by Travel Express Ltd and/or Mr Chumber.

Traffic Commissioner
Mr M Dorrington

03 May 2024.