Decision

Decision for Weales Wheels

Published 21 July 2021

1. DECISION OF THE TRAFFIC COMMISSIONER FOR WALES

1.1 PUBLIC INQUIRY HELD AT PONTYPRIDD ON 18 MARCH 2021

2. Martin Jonathon Weale T/A Weales Wheels PG0007112

2.1 &

3. Transport Manager Rupert Peter Smith

3.1 &

4. Transport Manager Toby Alexander Weale

5. Background

Martin Jonathon Weale, trading as Weales Wheels (“the operator”) holds a sole trader Public Service Vehicle Standard National Operator’s Licence for 15 vehicles. The licence started on 16 April 1998.

Rupert Peter Smith and Toby Alexander Weale are both designated transport managers on the licence.

On 9 September 2020, Powys County Council received a complaint from a concerned parent regarding bus route JB51. The complaint highlighted issues with the entrance door not closing properly and referred to insufficient carrying capacity on the return journey (from school to home) on 4 September 2020 and on the outbound (home to school) journey on 7 September 2020. Following that complaint, Driver and Vehicle Standards Agency (“DVSA”) Vehicle Examiner (“VE”) Lee Rees conducted an unannounced investigation on 15 October 2020.

The DVSA investigation found that maintenance inspection records, driver defect reporting, inspection facilities and maintenance arrangements were unsatisfactory. In investigating the circumstances of the complaint which had triggered his investigation, VE Rees reported that explanations and versions of the events differed.

The operator and both Transport Managers were called to Public Inquiry by call up letters issued on 9 February 2021.

6. The Public Inquiry

The operator, Mr Smith and Mr Toby Weale attended the Public Inquiry in Pontypridd on 18 March 2021. They were represented by Mrs Donna Howells, Transport Consultant. Mr Forsey, from the Fleet Management Department of Powys County Council attended to observe proceedings. In advance of the hearing, the operator had provided evidence in the form of inspection records and driver daily defect reports for the last 6 months, forward planning system record, tachograph audit records and training records. At the conclusion of the hearing, I heard representations from Mrs Howells.

7. Evidence

Evidence was heard from VE Rees, Mr Smith, Mr Toby Weale and the operator.

VE Rees’ evidence was included in the Public Inquiry Brief and was not contested by any of the parties. It comprised two separate reports – one relating to his maintenance investigation and the other to his investigation into the circumstances of the complaint. Each of these reports had multiple separate Annexes and “additional pages” attached, which is a feature of the new digital system employed by DVSA, but which meant that his evidence was presented in the Brief in a somewhat disjointed way which was not easy to navigate. Partly for that reason, but also because of the concerns about different and apparently conflicting versions of the events relating to the faulty door and bus overloading complaints, and the need for VE Rees to present his personal testimony as to what he saw and heard, to allow the operator to challenge any aspects of that, VE Rees read out large sections of his evidence.

VE Rees explained that Powys County Council had sent DVSA a copy of the complaint it had received on 9 September 2020 from a parent which alleged that there was a fault with the operator’s bus door on 3 September; that a 28 seat bus (rather than the contracted 57 seater) was used to collect more than 33 children on the afternoon of 4 September, resulting in children sitting on each other’s laps; and that the same happened on 7 September with children having to sit on laps and also the floor on that occasion.

When asked about the alleged problem with the door, Mr Martin Weale told VE Rees that there couldn’t have been an issue with the door of 57 seat bus R602ENP on 3 September because the driver defect report (“DDR”) for 4 September showed no defects and it wouldn’t have been used had a defect been shown. Mr Weale stated that the vehicle had done both journeys on that date and when it had finished the 4 September afternoon journey on route JB51, bus R602ENP returned to the depot and wasn’t used again until 25 September.

Mr Weale admitted using a 28-seater on the morning of 7 September and explained that this was because of Covid 19. He told VE Rees that the schools were staggering the dates the school children returned and that there were only 14 children on the JB51 route on 3 and 4 September. He told VE Rees that he had spoken to Powys County Council about the low numbers of children and size of bus required on this route but had no evidence of this. VE Rees had received written evidence from Powys County Council in which the operator had given a different version of events about why the 28-seater vehicle was used which, on investigation, VE Rees questioned the validity of.

VE Rees took us to Automatic Number Plate Recognition (“ANPR”) evidence in his report which showed that vehicle R602ENP was used on the JB51 route on 7, 8, 24 September and 2 October 2020. He also took us to ANPR evidence showing that a 28-seater vehicle was sighted on the JB51 route on the afternoon of 4 September, and that vehicle R602ENP was not.

VE Rees had requested all the operator’s DDRs during his investigation, however no DDRs were provided in respect of vehicle R602ENP for 7 or 8 September.

When VE Rees attended the operator’s premises on 15 October 2020, Mr Weale acknowledged the fault with the door of vehicle R602ENP, which Mr Rees had seen Mr Weale driving on the public highway shortly before arriving there. An Inspection advisory notice was issued in respect of the fault, however VE Rees explained that, had the vehicle been stopped at the roadside on the public highway, rather than on Mr Weale’s private property, it would have resulted in an Immediate Prohibition Notice because of the risk of a passenger being trapped in the door.

DDRs for this vehicle dated 4, 24 and 25 September did not mention the door defect. Maintenance sheets dated 25 and 28 September showed evidence of repairs carried out to the door on those dates.

VE Rees took us through the salient sections of his maintenance report – in particular, his findings regarding brake testing records, maintenance arrangements, VOR systems, lack of effective control by transport managers, and poor DDR systems with evidence of missing mileage. VE Rees confirmed that he had reviewed the documentation submitted on behalf of the operator on the morning of the Public Inquiry and that he had no concerns regarding any of that documentation which had been produced over the past 6 months.

Mr Rupert Smith gave evidence that he had been a part time transport manager on the operator’s licence since 2018, working 8 hours per week. He is Martin Weale’s brother in law and is also transport manager for 2 hours a week on the licence held by Radnorshire Travel, a company owned by Mr another of Mr Weale’s sons. He explained that, since Mr Toby Weale, had also been taken on as transport manager by Martin Weale around the beginning of 2020, he had gradually moved away from his previous transport manager duties and taken on more of a policy and health and safety advisory role. He accepted that he is required to inform my office of any change to his hours or responsibilities as transport manager, but because he hadn’t completely relinquished his role he had not yet done so. At the time of VE Rees’ visit, he explained that he was still checking documents, including maintenance and tacograph records, and conducting audits every couple of months. He accepted that he had not adequately recorded those checks and that VE Rees’ criticisms were justified. In particular, he took complete responsibility for the lack of an effective VOR system which had resulted in vehicles being used on the public highway when they were SORNed.

Since VE Rees’ visit Mr Smith (along with the operator and Mr Toby Weale) had taken on board all of his recommendations, including introducing a new DDR system, all PMIs now include a brake test and he had attended a transport manger refresher course in November 2020.

Mr Toby Weale accepted all the failings identified by VE Rees and, explained the immediate steps taken to rectify problems identified and to improve his own knowledge as transport manager, by attending refresher training in November and also to improve his knowledge of heavy vehicle maintenance through Cardiff Vale College. He now recognises the value and importance of paperwork and audit trail and is committed to his family business which he wants to ensure is operated as safely as possible.

Mr Martin Weale accepted all the findings in VE Rees’ maintenance investigation report. He accepted that he knowingly operated a 28-seater vehicle on 7 September which had insufficient capacity to carry the number of children and resulted in the complaint to Powys County Council. He was asked to explain the alternative version of events which were set out in an email from his wife to Powys Council, in which it was stated that the larger vehicle was dispatched but had hit a bridge resulting in an oil leak and damage and the driver having to return to the depot to pick up a smaller vehicle. His response in evidence at the Inquiry was that the version set out in her email was incorrect and this was the result of a miscommunication between him and his wife and she had “got the wrong end of the stick”. Regarding the fault on the door of R602ENP, he confirmed that he knew about it on 4 September and, having now seen the ANPR evidence, thought it must have been that morning he found out about the fault, rather than that afternoon, accepting that the vehicle on the afternoon of 4 September was, in fact, the 28-seater which had insufficient capacity to carry the number of children that it did.

When questioned about why he told VE Rees that vehicle R602ENP was not used between 4 and 25 September (the date for which there is evidence of door repair), when ANPR evidence clearly shows that it was used on the school route at relevant pick up/drop off times, he could provide no explanation. His evidence at Inquiry was that the intermittent door fault was repaired several times before 25 September, but he was unable to produce evidence to support that.

Mr Weale explained that he employs 10 people and works exclusively for Powys County Council providing school contract services. He is contracted to do 7 contracts but is also currently covering for 2 other local operators who provide school services for Powys because they are unable to do so for reasons associated to the Covid pandemic.

When asked about the likely effect of his licence being curtailed or revoked, his response was that both would have a devastating effect on him. He would lose his family business that he has built up from nothing. The busines also employs his wife and his son, and the other employees would also lose their jobs. In terms of a suspension of his licence, that would obviously depend on the length and timing of any suspension.

I invited Mr Forsey of Powys County Council to indicate what effect revocation of Mr Weale’s licence might have for the authority. He explained that they relied on Mr Weale transporting between 300 and 350 learners per day and that if he were to lose his operating licence it would be an issue for the Council. There are not a lot of bus operators in central Wales and so it’s likely there would be an impact on the public purse. However, he acknowledged that was something Powys County Council would have to deal with, if that is ultimately my decision. Mr Forsey went on to say that, although he was disappointed with what he had heard during the Public Inquiry, the Council had always had a good relationship with the operator, who employed local people and who he would not wish to see going out of business.

8. Findings of fact

It is clear, and accepted by the parties, that vehicles were not being properly inspected at six weekly intervals. Of the 7 PMI sheets inspected by VE Rees, all of the brake performance sections were blank and there was no evidence that measured brake performance tests had been carried out. Of particular concern to VE Rees was the fact that brake test figures from earlier brake test sheets appeared to have been copied over onto subsequent PMI sheets, which he found to be indicative of fraud. On further investigation, a junior employee admitted that he had done this and had been signing off the PMI sheets (due to Mr Weale senior’s dyslexia), although he was not mechanically qualified and did not appreciate the significance of signing off the inspection sheets. He did not understand why this was completely unacceptable, nor the recommended requirements as to brake testing. The inspections also included no evidence of a metered smoke test being carried out. Accordingly, I find that section 17(3)(a) of the Act is made out.

The evidence is clear, and now accepted by the operator for both journeys specified in the call in letter, that he used a 28 seater vehicle to carry more than that permitted number of children on the return (school to home) journey on 4 September 2020 and on the outbound (home to school) journey on 7 September 2020. This raises serious road safety concerns and parents were, quite understandably, extremely worried about the safety of their children being carried on the operator’s vehicles in circumstances where not all children were able to sit on a dedicated seat but had to sit on the lap of another child or the floor. The operator signed up to an undertaking when he applied for his licence that his vehicles would not carry more than the permitted number of passengers and I find that section 17(3)(aa) of the Act is made out.

It is accepted that the 57 seater vehicle R602ENP had a defective door when used to take children home from school on 3 September 2020. There is no evidence of repair before the vehicle was used the following morning and my finding is that it was used on 4 September, without the fault having been repaired. Although Mr Weale has stated that the fault was intermittent and was repaired “several times” before 25 September, there is no evidence of repair until 25 September, although there is ANPR evidence showing the vehicle was used on route JB51 between those dates. The door was still defective when VE Rees and his colleague examined it at the operator’s premises on 15 October, resulting in it being served with an advisory notice. The vehicle had been used on the public highway shortly beforehand, as witnessed by VE Rees who had followed it into the yard. Had it been stopped by VE Rees on the public highway, it would have been issued with an Immediate Prohibition notice due to the risk of passengers being trapped in the door. The operator signed up to an undertaking when he applied for his licence that his vehicles would be kept fit and serviceable and I therefore find that section 17(3)(aa) of the Act is made out.

The DDR system employed by the operator was chaotic and ineffective. The operator was unable to produce all the DDR records requested and those that were examined by VE Rees had failed to identify defects that were picked up safety inspections on the same date, or indeed the fault with the door of R602ENP on any occasion. The operator signed up to an undertaking when he applied for his licence that drivers would report promptly and defects or systems of defects that could prevent the safe operation of vehicles and that any defects would be promptly recorded in writing. He also undertook to keep records for 15 months of driver defect reports. I find that he has failed to do so and that section 17(3)(aa) of the Act is made out.

Finances provided in advance of the hearing were satisfactory and there are no concerns regarding the operator’s establishment.

As regards the ongoing requirement for an operator to be of good repute, as required by section 14ZA(2)(b) of the Act, I indicated to Mrs Howells at the start of the hearing that I had concerns about apparently conflicting versions of events which potentially went to the matter of the operator’s repute. These related to the reasons for the operator having used a vehicle with insufficient capacity to carry school children on 7 September and statements made by Mr Weale to VE Rees regarding the use of R602ENP, which were subsequently shown by ANPR evidence to be untrue. I have considered the written evidence in the PI Brief, the oral evidence of Mr Martin Weale and VE Rees given at Inquiry and closing submissions made by Mrs Howells. In this regard, Mrs Howells accepted that “there has been embellishment of the truth” and, whilst not excusing what her client said, she suggested that things are said without thinking about whether a Public Inquiry will result.

When questioned by me, Mr Weale was unable to explain why he had told VE Rees that vehicle R602ENP was not used between 4 September and 25 September (the date on which there is evidence of its faulty door being repaired), nor for the missing DDRs for the dates it was shown as being used by camera evidence. In the face of the ANPR evidence included in the PI Brief he could clearly no longer maintain that position and could give no credible reason as to why he told VE Rees that. When I put it to him that it was odd that he could only produce a repair record for 25 September (the day he told VE Rees R602ENP was first used again) and no repair records to substantiate his assertion that it had been repaired “several times” prior to that, he was unable to explain why.

I find that Mr Weale was not honest with VE Rees regarding the use of vehicle R602ENP which I find, in the absence of any evidence to the contrary, continued to be used between 3 and 25 September with a faulty door. I also find a lack of honesty in attempts to justify why a vehicle with insufficient capacity was used on 7 September. Mr Weale’s assertion that he’d had conversations with Council officials who had told him that there would be fewer pupils that day is inconsistent with the correspondence from the Council included in the Brief, which is also inconsistent with the version of events put forward in writing to the Council by Mr Weale’s wife on his behalf. I accept, as Mr Weale said in his evidence at Inquiry, that he was under a lot of stress to do the school run that day. I also appreciate that the schools had only just returned from the summer holidays and that there was uncertainty about numbers due to Covid restrictions. However, that does not in any way excuse his lack of candour to VE Rees which has now been exposed.

The operator licensing regime is based on trust. In NT/2013/82 Arnold Transport & Sons Ltd v DOENI the Upper Tribunal said:

“The Tribunal has stated on many occasions that operator’s licensing is based on trust. Since it is impossible to police every operator and every vehicle at all times the Department in Northern Ireland (and Traffic Commissioners in GB), must feel able to trust operators to comply with all relevant parts of the operator’s licensing regime. In addition other operators must be able to trust their competitors to comply, otherwise they will no longer compete on a level playing field…cutting corners all too easily leads to compromising safe operation. It is important that operators understand that if their actions cast doubt on whether they can be trusted to comply with the regulatory regime they are likely to be called to a Public Inquiry at which their fitness to hold an operator’s licence will be called into question. It will become clear, in due course, that fitness to hold an operator’s licence is an essential element of good repute.”

In view of my findings regarding Mr Martin Weale’s lack of candour, I am entitled to question his fitness to hold a licence, which is an essential element of good repute. However, on balance, I find that his repute is retained, albeit severely tarnished.

Mr Smith and Mr Toby Weale accepted that they had failed effectively and continuously to manage all the transport activities of the business, as required by the legislation. Specifically, I find that they had failed to exercise effective quality controls over the PMI sheets, the DDR system was extremely poor and there were serious issues regarding maintenance procedures, particularly as regards measured brake testing.

I find that the repute of Mr Smith and Mr Toby Weale as transport managers is retained, albeit tarnished. It follows that the operator’s professional competence is retained, albeit tarnished.

9. Considerations and Decisions

I have weighed up these findings against the positive features identified by Mrs Howells in her submissions and by VE Rees. Of particular significance is the operator’s good compliance history. Mr Weale has held his operator’s licence for 23 years and has never been called to a Public Inquiry. In the last 5 years, the operator has had 8 roadworthiness encounters with DVSA, with no prohibitions issued. It is classed as a Green OCRS operator by DVSA. The operator himself and both transport managers responded swiftly to VE Rees’ criticisms, introducing new systems and undergoing training to address the failings identified. The paperwork in respect of maintenance procedures and systems produced by the operator in advance of the hearing was scrutinised by VE Rees and he found no fault with it. The operator and both transport managers have demonstrated a commitment to improved compliance and I accept that the DVSA investigation has been a salutary experience for them. I also note that Mr Forsey, from Powys County Council’s Fleet Management Department stated at the Inquiry that he had not previously had any issues with the operator, and that Council documentation included within the Brief gave Mr Weale the status of a competent operator.

In conducting this balancing exercise, I have also taken into account the effect of any regulatory action on Powys County Council and have had regard to Mr Forsey’s representations about that.

In considering the Priority Freight (T/2009/225) question, “how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime?”, I take account of all the positives identified above and find that the answer is likely.

With regard to the Bryan Haulage (no.2) (T/2002/217) question, “is the conduct such that the operator ought to be put out of business?”, the answer is therefore no, but the operator can be in no doubt about the likely result of any future transgressions.

I consider that a period of suspension of the licence is proportionate and appropriate. The licence is suspended for 14 days with effect from 0001 hours on 27 March 2021 until 0001 hours on 10 April 2021.

The operator continues to meet the requirements of section 14ZA(2) of the Act as to stable establishment and financial standing.

Repute as an operator is retained, albeit severely tarnished.

Professional competence as an operator is retained, albeit tarnished.

The repute of Rupert Peter Smith as transport manager is retained, albeit tarnished.

The repute of Toby Alexander Weale as transport manager is retained, albeit tarnished.

Victoria Davies

Traffic Commissioner for Wales

21st March 2021