Decision

Written decision for Thomas Glyn Hughes & Graham Charles Goodsir t/a Goodsir Coaches (PG1026798) and Colin Rogers - transport manager

Published 30 October 2020

Decisions of a Deputy Traffic Commissioner sitting in the Welsh Traffic Area in Caernarfon.

The Public Passengers (Vehicles) Act 1981 as amended (“the Act”).

1. Decisions

1.1 Decisions made in respect of the PSV operator’s licence held by Thomas Glyn Hughes & Graham Goodsir t/a Goodsir Coaches PG1026798

Adverse findings are made under sections 17(3)(a) and 17(3)(aa) of the Act.

The operator meets the requirement for professional competence at the date of the public inquiry with a new transport manager called Kevin Bryant in place.

The operator no longer meets the requirement for financial standing, section 17(1)(a) and 14ZA(2) of the 1981 Act.

The operator no longer meets the requirement to be of good repute, section 17(1)(a) and 14ZA(2) of the 1981 Act.

The operator has failed to properly operate local bus services registered under the Transport Act 1985.

The operator’s licence is revoked with effect from 23:59 hours on 30 October 2020.

Thomas Glyn Hughes (“Thomas Hughes”) is disqualified from holding or applying for an operator’s licence in any traffic area for an indefinite period following the date of revocation of this licence. The disqualification applies to his being an operator, partner, director, consultant, manager or having a controlling interest in a passenger transport business.

Graham Charles Goodsir (“Graham Goodsir”) is disqualified from holding or applying for an operator’s licence in any traffic area for a period of 12 months after the date of revocation of this licence. The disqualification applies to his being an operator, partner or director of any entity holding an operator’s licence. He can still be a PSV driver for an entity where he has a financial interest as a shareholder, provided that he does not get involved in management decisions.

1.2 Decisions made in respect of Transport Manager Colin Rogers

Colin Rogers retains his repute as a transport manager, albeit it is severely tarnished. To assist in any future decision I indicate that he appears capable of undertaking a transport manager role for one or two vehicles, but any application involving his controlling more than two ought to be referred to the local traffic commissioner.

1.3 Thomas Hughes as a vocational driver – consideration under the Road Traffic Act 1988

Thomas Hughes had not been called as a vocational driver, however evidence at the hearing raised concerns as to his fitness to hold a vocational licence. He is to be provided with a transcript of the evidence from the hearing, parts are relevant to his fitness to hold a vocational PCV licence. I recommend that a driver conduct hearing be held to consider his fitness to hold a vocational licence, if the factual issues raised are disputed by him, both Colin Rogers and Kevin Bryant should be called to give evidence

2. Background

The Goodsir family have operated PSVs in and around Anglesey for a relatively long period of time. A first public inquiry was held in July 2019 when the licence considered before me was the partnership called to this latest hearing. A number of findings and decisions were made in July 2019 including a reduction in the number of discs authorised from 16 to 13.

A follow up investigation following the July 2019 public inquiry resulted in this latest public inquiry, which was held in Caernarfon on 12 August 2020.

2.1 Public inquiry held on 19 July 2019

Aside from 3 DVSA officials, attendance in July 2019 included the two partners Thomas Hughes and Graham Goodsir; Emma Goodsir, daughter of Graham Goodsir; Paula Goodsir, wife of Graham Goodsir; and, Helen Newbold, counsel who represented the partnership.

To assist the operator in future planning in 2019 I appended a number of comments to the formal decisions, these included the following verbatim notes in bullet point format:

• DVSA examiners felt that this operator was wholly co-operative and helpful. It is a respected family business that has come to PI for the first time.
• Finances were produced in the form of an offer of money from a finance company, but whilst I was given oral evidence of the re-payment rates, there was no formal confirmation of the percentage repayment rate if the loan was drawn down. The loan would need to be drawn down.
• This is a partnership but it is likely to now seek to discuss entity with Business Wales, I suggested contact with (named individual) with Business Wales. Specialist training and support has been offered to similar family firms but Goodsir Coaches were unaware of this.
• The relatively lengthy period of grace (to address financial standing) allows the family firm to discuss whether to continue in its current partnership format or whether to form a limited company.

2.2 Attendance at the public inquiry on 12 August 2020

The following were in attendance on 12 August 2020:

• Graham Goodsir, partner
• Paula Goodsir
• Emma Goodsir
• Kevin Bryant, current transport manager
• Colin Rogers, former transport manager
• Helen Newbold, counsel representing the Goodsir family

2.3 Non-appearance of Thomas Hughes at the 12 August 2020 hearing

Thomas Hughes did not attend despite having been sent notification of the hearing. Helen Newbold confirmed that she had been brought in to represent the company (the partnership) but she had not been able to make any communication with Thomas Hughes. He had not attended meetings and had not answered her telephone calls. Accordingly, she could only represent Graham Goodsir.

Witnesses described how they discussed the hearing with Thomas Hughes. Kevin Bryant told me that he had spoken to Thomas Hughes about the hearing on Monday 10 August 2020. When asked if he was attending, Thomas Hughes responded “I don’t think so, REDACTED. No communication has been received from Thomas Hughes relating to whether or not he would be attending, furthermore there was no evidence of any medical justification for not attending the public inquiry on 12 August 2020.

2.4 My comments at the conclusion of the 12 August 2020 hearing

At the conclusion of the hearing I spelt out the likely outcome, indicating that the licence would be revoked on a date in the near future and that Thomas Hughes would be made the subject of a lengthy or an indefinite disqualification under section 28 of the Transport Act 1985. I also indicated that I would be reflecting on whether I would disqualify Graham Goodsir. Furthermore, I indicated that my written decision would not be immediate as I would want to read a transcript before starting it.

There is an expectation that there will be an application involving the Goodsir family and as a result I have sought to provide sufficiently detailed reasoning to assist whosoever it is that makes decisions on this.

3. Evidence

Before preparing this written decision I have reviewed the following:

• Public inquiry brief for the operator Thomas Glyn Hughes & Graham Charles Goodsir t/a Goodsir Coaches PG1026798;
• Public inquiry brief for transport manager Colin Rogers;
• My notes of the hearing on 12 August 2020;
• A transcript of the hearing held on 12 August 2020;
• Written representations and evidence presented on behalf of the Goodsir family;
• Written representations and evidence from the operator’s former transport manager Colin Rogers; and,
• Various authorities including those in relation to the approach to regulation, repute, proportionality, and trust:- Thomas Muir (Haulage) Limited v Secretary of State for the Environment, Transport and Regions (1999) SLT 666; Crompton trading as David Crompton Haulage v Department of Transport, North Western Area (2003) (EWCA Civ 64); Muck It Limited and others v Secretary of State for Transport (2005) EWCA Civ 1124; 2009/225 Priority Freight Limited and Paul Williams; 2002/217 Bryan Haulage (No 2); and, Fenlon 2006/277.

I am conscious that I am a civil jurisdiction and need to take care when making adverse findings of fact. I have had regard to the decision of the House of Lords which reminds tribunals that, whilst the standard of proof in civil proceedings is always on the balance of probabilities, the more serious an issue or allegation the more cogent the evidence that is required, In Re H and Others 1996 1 All ER. The evidence in this case is both clear and cogent, this includes the detailed and corroborated behaviour of Thomas Hughes which is described in some detail, below.

The transcript of the evidence heard supports my decision to proceed with the hearing on the basis that Thomas Hughes could have attended the public inquiry, but chose to not do so.

I was asked to deal with finances in camera, although I ensured that key points were repeated for the open public part of the hearing, I was also conscious that the press were present. In the confidential session I was told that the day before the hearing lawyers representing Graham Goodsir received REDACTED. In view of the publicised restrictions on receiving written documentation without opportunities for quarantine, I did not view any REDACTED for Graham Goodsir. However my watching Graham Goodsir answer questions and observing his body language when others gave evidence about him was of assistance in my coming to views. I had little difficulty in accepting as fact that Graham Goodsir at the time of the public inquiry was REDACTED. This was supported by oral evidence from other witnesses and appeared to be accepted by Helen Newbold who was representing Graham Goodsir.

The call in letter required advance notification if the DVSA witnesses were required to attend, if the factual issues raised in the DVSA evidence was accepted as correct there was an expectation that they not be called to give evidence. This was a consequence of the Covid 19 restrictions on hearings.

It was confirmed by all parties present that the factual evidence in the written DVSA evidence was accepted without exceptions. There was one issue where, despite Graham Goodsir directly contradicting himself with different versions of events in a number of instances, the suggestion from DVSA that he deliberately lied, was not fully accepted.

When discussing whether Graham Goodsir lied to the DVSA, I referred to the principles in In Re H and Others 1996 1 All ER and confirmed that the written evidence supported Helen Newbold’s assertions relating to Graham Goodsir’s REDACTED. This was also corroborated by his family and employees. It is clear that Graham Goodsir did indeed say contradictory things to DVSA examiners, however the totality of evidence including his REDACTED allows me to come to a finding that he did not necessarily set out to tell lies, instead his REDACTED was such that he REDACTED. Whilst this may be a fine point, I have reminded myself that the DVSA at the public inquiry in 2019 commented on this being a longstanding, co-operative, respected family business. Indeed the thrust of the case put forward on behalf of the Goodsir family was that the relationship with Thomas Hughes, the partner who declined to attend on 12 August 2020, deteriorated to such an extent that the workings of the PSV business were dysfunctional with Graham Goodsir clearly unable to cope.

For the avoidance of doubt it was in my view entirely reasonable for DVSA examiners to consider Graham Goodsir as having lied, however I had the benefit of watching and listening to further evidence which, whilst supporting all the DVSA factual comments, allows me to come to different view as to whether Graham Goodsir deliberately lied.

3.1 DVSA evidence

Separate written reports were provided by VE Gwyn Griffiths and TEs Sarah O’Brien & Nia Daniel. The joint investigation included bus timetable monitoring work.

On 18 December 2019 VE Griffiths stopped a PSV driven by Graham Goodsir at a school check, he explained that some drivers and vehicles had other work to go to and so arrangements were made for vehicle checking which would be less disruptive for the operator. During the inspections Thomas Hughes and Emma Goodsir were present; two vehicles were issued with prohibition notices.

VE Griffiths reported that maintenance was conducted in-house in a covered workshop which was well equipped including an inspection pit designed for buses and a roller brake tester. Most of the maintenance had been conducted by Graham Goodsir together with his son, Garry. Unskilled assistance was also available.

In the VE’s opinion, since the last investigation there were big improvements with inspection records, inspection sheets were correctly signed off with roller brake test results recorded. The PMI period for the vehicles was four weekly and this had been adhered to with one exception where it had slipped to 5 weeks. He commented on a high number of Vehicle Off Road (VOR) notices suggesting that they were taken out of service following inspections if they needed parts sourcing.

Where there was a criticism about records, blame was deflected by the operator to former transport manager Colin Rogers.

A feature of a previous investigation related to drivers not appreciating the importance of daily driver walkaround checks, VE Griffiths was told that some drivers were still reluctant to adhere to the reporting system, but that there had been a noticeable improvement since transport consultant (and later transport manager) Kevin Bryant had been involved.

Note Colin Rogers was nominated transport manager but resigned with a very short overlap with transport consultant Kevin Bryant. At the time of this latest public inquiry, Kevin Bryant had qualified formally as a transport manager. He had been performing the functions of transport manager from December 2019.

VE Griffiths felt that more robust driver defect reporting would have avoided prohibitable defects found during the investigation. He also commented that shortcomings were not dissimilar from those conducted at the previous investigation. Another comment was that as far as his part in investigation was concerned, he received full cooperation from Thomas Hughes, Graham Goodsir and their staff. He went on to comment that he was also aware that Graham Goodsir had REDACTED during the period and had had time off because of this.

Comment was made by VE Griffiths on the poor communication between all parties with very little teamwork with everyone thinking that someone else was responsible for certain matters, when in fact nobody was actually taking responsibility. He commented that neither partner stayed in a prearranged meeting with his traffic examiner colleagues on 18 December 2019 and they had to be repeatedly called back into the office to answer questions. He went on to comment that he was concerned that a mechanic was waiting for a component to fix one of the prohibited vehicles, it seemed that there was a part available locally but no one was willing to take responsibility for paying for it. It was believed that transport consultant Kevin Bryant used his own personal payment card to pay for this part.

The joint report written by TEs Sarah O’Brien and Nia Daniel advised that the investigation was initiated following complaints received that some of the registered services operated by the partnership were failing to run in accordance with published timetables. As a result, it was decided to conduct monitoring exercise of the services running in the Holyhead area.

Between 30 October 2019 and 27 November 2019 the two TEs conducted six days of bus monitoring for three of the four live registrations held by the operator; 116 journeys were anticipated.

Of the 116 journeys anticipated, 50 journeys were published on Anglesey Council’s website and with Traveline Cymru, but did not appear to be registered with the Office of the Traffic Commissioner (OTC).

Of these 50 journeys, 38 journeys were observed to be running and a further 12 journeys failed to operate. In addition to this, five vehicles observed displayed incorrect destination boards.

Of the 66 journeys registered with the OTC, 57 were observed:

• 9 failed to operate, representing a non-compliance rate of 13.64%
• 8 were observed to be running more than one minute early representing a non-compliance rate of 14.03%
• 5 journeys were observed to be running more than five minutes late representing a non-compliance rate of 8.77%

The total of 13 non-compliant registered journeys seen operating outside of the -1 minute to +5 minute window of tolerance was 22.80%.

When also taking into account those operated but not correctly registered, the overall non-compliance rate was 33.33%. Additionally 15.79% of those seen had incorrect destination boards.

During the bus monitoring investigation, Graham Goodsir stated that the operator had not been subject to regulatory action by Isle of Anglesey County Council in respect of its registered bus services, although there was evidence by way of a number of letters produced by the local authority detailing occasions when the operator failed to operate specific services with financial penalties imposed. Two separate issues arose, first Graham Goodsir claimed that he had not been in difficulties with the local authority, when that was not the case; secondly, it is clear that the operator had not sufficiently appreciated that services needed to be registered with the Traffic Commissioner for Wales, not the local authority.

It transpired that as a result of the poor knowledge as to how to register services amongst the smaller bus operators in the Anglesey area, local authority officers registered services for PSV operators. Whilst there is no difficulty in any operator receiving assistance, it is important that services are registered by the relevant PSV operator.

Investigations within the centralised bus registration team in Leeds revealed that various applications to amend service registrations had been received by the operator, however they did not have any legal effect as the initial service registrations had not been made.

During the visit by DVSA on 18 December 2019 the partnership was asked if any monitoring was being completed, to which Graham Goodsir replied “I used to”, although there was no evidence to corroborate this.

On being asked about the operator having a complaints register, it was clear that there was nothing in place. In January 2020 correspondence from the operator confirmed that there was “no system in place to record any nonadherence to the service schedule by drivers on a daily basis” and that “no system existed where drivers could report road issues that could then be taken into account and related to the council or customers”.

It appeared that there were no checks made relating to vehicle signage, this would have accounted for the incorrect destination boards identified.

Another issue observed was that one of the vehicles seen did not comply with the Disability Discrimination Act 1995 (DDA) requirements. Comment was made on the fact that partner Graham Goodsir had been driving the vehicle which was not DDA compliant and that surely he should have known that this was the case? At the hearing before me it was conceded that the vehicle did not have a certificate of conformity to DDA, it being claimed that it had the relevant chairlift facilities but administrative failures led to the formal certificate not being applied for.

Previous visits by examiners had made recommendations in relation to ensuring proper driving licence checks were made with records. Two separate transport consultancies produced contradictory reports on whether or not sufficient driving licence checks had been made. The TEs suggested that there was a clear failure by the partnership to ensure proper driving licence checks were made despite this having been previously pointed out to the operator.

The written report by the two TEs described somewhat chaotic arrangements in relation to driver contracts and disciplinary processes. At one stage it had been claimed that drivers had full details as to their responsibilities and that there was a disciplinary procedure in place, however many of the drivers did not have any written contract of employment.

During the visit in December 2019 Emma Goodsir stated that a couple of drivers now had contracts and they were looking to introduce them for everyone. Kevin Bryant (newly appointed at that stage) indicated that they were generic contracts and not specific to individuals. At the hearing before me Kevin Bryant confirmed that all employees now had full and proper contracts of employment.

At the time of the December 2019 investigation the operator was supposedly using Tachomaster software for tachograph and Working Time Directive analysis. The two TEs advised that users were only charged for the service when they uploaded data for analysis, however there was clear evidence that the portal had been down for at least two months and this had only come to light when Kevin Bryant commenced his employment.

At the hearing on 12 August 2020 I described the functioning of the partnership as dysfunctional, this was confirmed by the written evidence of the two TEs who wrote:

On visiting the business there seems to have been a breakdown of relationship between the two partners and there appears to be no functioning partnership. During the meeting on 18 December 2019, neither partner appeared to want to be present to answer the questions and there was very little if any discussion between the two partners. Neither does there seem to be any apparent control by either partner in the daily running of the business. No questions were answered by Thomas Hughes, very little was answered by Graham Goodsir and the majority were answered by Kevin Bryant and Emma Goodsir. This licence has been held by the partnership since January 2004 and it was surprising how much knowledge of the business Kevin Bryant had considering he only completed an audit during week commencing 25 November 2019 and only commenced employment with the partnership on 9 December 2019.

Colin Rogers was appointed as transport manager to coincide with the previous public inquiry in July 2019, however in the opinion of DVSA examiners, he had little if any effect on the operations of the business. In fairness to Colin Rogers examiners also questioned the level of support given to him, pointing out that he was a relatively inexperienced individual whose only experience in such a post was the operation of his own PCV for private hire for which he was the only driver. They were suspicious that he was nominated to ensure continuation of the licence without being given full control. The written report from the two TEs pointed out how the partnership sought to place the majority of blame on the departed transport manager Colin Rogers.

Responding to the DVSA investigation Graham Goodsir wrote in January 2020 that although initially appointed as a consultant, Kevin Bryant had gone back through Colin Rogers’s work and that he now ensured compliance.

Although at the time of the investigation Kevin Bryant did not have a formal transport manager qualification, this had been addressed prior to the latest public inquiry before me.

3.2 Evidence from Colin Rogers

Colin Rogers confirmed that he had previously appeared before me at a public inquiry when there had been an issue as to whether a licence was in the correct name, eventually this was addressed and Colin Rogers passed his transport manager examinations so that he could hold a standard national licence to transport children to school. Previously he had been a teacher.

As Colin Rogers was called to consider his repute as a transport manager he provided detailed evidence as to how his own small PSV operation ran, no adverse issues were identified. His correspondence also revealed his concern at financial arrangements with the operator, on a repeated basis his employer had not paid pension contributions and there were various letters from the Pensions Regulator pointing out that action was being taken as a result.

Paula Goodsir interjected at this stage to confirm that this had been addressed and payments had not been made for Colin Rogers when they should have been. Additionally Kevin Bryant confirmed that these issues had been addressed and adequate written contracts of employment were now in place for all staff.

Colin Rogers did not seek to contradict the contents of the reports from DVSA examiners. Additionally he made it clear that he agreed with all of the evidence provided by his successor Kevin Bryant.

When Colin Rogers was working for the operator Graham Goodsir was very busy and working to the best of his ability. He described Thomas Hughes (although he used his middle name, Glyn) as being present but with other agendas. On my probing him on this he referred to Mr Hughes not running the business in a proper way, although he was the “boss” who could “sack him”. Whilst Colin Rogers did not know anything about the financial issues involved in running the business, Mr Hughes was not participating or making decisions.

I was advised by Colin Rogers that he had what he described as “a great big showdown” on 30 July 2019. Mr Hughes was taking buses home but when challenged he told Colin Rogers that it was none of his business.

I pointed out that buses needed to be parked at a registered operating centre, it was confirmed that this was put to Mr Hughes by Colin Rogers who told him that he had to stop the practice. The response Mr Hughes was that it was none of Colin Rogers’s business.

Aside from Colin Rogers providing evidence as to how he ran his own small business, he provided in advance of the hearing details of concerns which he wished to bring to my attention. This included a photograph of a Goodsir Coaches PSV vehicle tyre which was in a shocking condition with no tread and chords showing. He felt that the tyre had been hidden from him.

Further questioning revealed an explanation for the lack of efficient and effective management of transport by Colin Rogers. He started work after 9 AM and left before 3 PM, accordingly he was not present in the morning when drivers went out to work. He had his own school run which was 30 miles away.

I referred to Upper Tribunal case law relating to the need for him to resign if he was not able to perform transport manager duties, although this is what he did, he did not fully comply with the requirement to first put his concerns in writing to his employer with a follow-up letter of resignation and explanation to the traffic commissioner.

Difficulties in controlling the business were described to me with issues as to taxing vehicles, this was addressed when Colin Rogers was given details of an account by Ian Goodsir, a member of the Goodsir family who had not been able to attend the latest hearing before me.

I was told by Colin Rogers that Mr Hughes parked a PSV across the road from his home and that he did so because he was running a separate business using the vehicle without utilising the partnership. He produced a screenshot from social media confirming what appeared to be happening: “I started to look back and realised that (Mr Hughes) was taking a bus home and doing work, and it wasn’t actually going through the books.” He went on to describe that there were other times when Mr Hughes’s daughter appeared to be involved in this.

Colin Rogers told me that he was receiving messages and phone calls from people wanting refunds for jobs that the partnership didn’t know anything about. They named an individual who turned out to be Mr Hughes’s daughter who had a web page on Facebook referring to “Goodsir Trips” with a telephone number.

I was told by Colin Rogers that my description of the partnership as dysfunctional was accurate. He went on to tell me that he had not in any way fallen out with the Goodsir family, the problem being Mr Hughes.

3.3 Evidence from Kevin Bryant

I asked Kevin Bryant how often he saw Mr Hughes and was told that since the Covid 19 lockdown on 23 March 2020 he was in less, maybe once a fortnight. Earlier he came in more often. Mr Hughes was described as attending the premises sitting where the mechanics office area was, he would then undertake one of the school runs in the morning, attend the depot until 3:30 PM or 3 PM when he would take his bus for the school run in the afternoon and would be home for the rest of the time. The 22-seater bus was not returned to the depot but was parked opposite Mr Hughes’s home address.

Kevin Bryant agreed with the evidence given by Colin Rogers relating to what was described by both of them as “moonlighting” by Mr Hughes. He added that no records were kept of the work undertaken by Mr Hughes including tachograph or other records. Having looked at odometer readings and information from Colin Rogers it was clear that trips had been organised by Mr Hughes without any record.

On my putting to Kevin Bryant that a transport manager should ensure that all vehicles were parked at the registered operating centre when not in use, I was told that he had put this to Mr Hughes. Kevin Bryant told Mr Hughes that he needed to bring the bus back to the operating centre and described his attitude towards legislation as “very laissez-faire”. On my asking what he meant by this I was told “he doesn’t care…. despite numerous requests by myself and others”. It transpired that Graham Goodsir had also told Mr Hughes that he should not take the bus home.

It was confirmed to me by Kevin Bryant that he acknowledged his legal responsibility to ensure that legislation was complied with. He went on to tell me that he would inform the traffic Commissioner and terminate his employment with the company rather than allow an illegal activity. He went on to advise that he had barred Mr Hughes from driving as of first of April because since he had arrived at Goodsir Coaches he had been conducting all the required driving licence checks using the DVLA portal. On numerous occasions he had asked Mr Hughes to provide him with a check code and had assisted him to try and get the code, but he had been unable to do this. In other words he was unable to conduct a proper forecheck of Mr Hughes’s driving licence although he had seen a physical copy of a licence.

Personal details provided by Mr Hughes to established his PCV driving entitlements were invalid, hence he was now barred from driving any company vehicle. I pointed out that Mr Hughes was a partner so technically he could sack him, this was acknowledged although Kevin Bryant told me that if Hughes was seen using a PSV on the public road he would be resigning with immediate effect.

Kevin Bryant confirmed that all vehicles were now fully DDA compliant although he had removed three vehicles because they were regarded as beyond economic repair and were awaiting disposal. Additionally all staff now had full and valid contracts of employment.

On my asking about existing arrangements, Kevin Bryant confirmed that with Covid 19 the operator was running two buses to cover a reduced service in Holyhead and the surrounding areas. With schools going back currently there were four school contracts from September. He considered the minimum to run the services and the school contracts was eight vehicles, although he felt that the business also needed capacity to operate private hire work for e.g. local school trips to and from local baths et cetera.

There was no attempt to contradict any of the written DVSA evidence, although I point out that the DVSA examiners were complimentary about Kevin Bryant.

I sought to establish the extent to which Kevin Bryant truly had continuous and effective management of the PSVs and asked about his salary. He confirmed a figure which was considerably more than that paid for part-time work undertaken by Colin Rogers. Kevin Bryant was paid for working full time at a figure that I consider to be competitive.

3.4 Graham Goodsir, Paula Goodsir and Emma Goodsir

All three members of the Goodsir family who attended the hearing spoke, either answering questions or chipping in with answers where they had personal knowledge.

I did not probe Graham Goodsir as he accepted all the factual evidence provided by the DVSA and it was clear to me that he was REDACTED – I am a lawyer not a REDACTED, however my watching and observing him corroborated what I was told by his advocate.

3.5 Financial evidence

The public inquiry held in July 2019 included a decision that the operator no longer met the requirement of financial standing, a period of 5 months grace was granted, this was generous.

At the commencement of the hearing I set out what I regarded as key features of the case, including an outline as to the inadequacy of the financial evidence (without referring to specific accounts or specific sums of money), I also made reference to the clear note attached to my decision from the July 2019 public inquiry: “Finances were produced in the form of an offer from money from a finance company, but whilst I was given oral evidence of the repayment rates, there was no formal confirmation of the percentage repayment rate if the loan was drawn down. The loan would need to be drawn down.”

The revolving facility to borrow money to the partnership had not been drawn down, there was an annual fee of £REDACTED plus VAT to retain that facility. As I pointed out, if I accepted the facility as evidence to meet financial standing without drawing down the loan, the operator would be circumventing the legal requirement to meet financial standing by merely paying a modest fee of £REDACTED plus VAT.

A cursory glance at the facility referred to the need for both partners to sign before monies were drawn down, additionally there was a reference to residences being security for the loans; I referred to the importance of the use of the plural for residences. In view of what I was told and from the thrust of the evidence before me, there was no likelihood that the two partners would draw down the loan facility and it should be disregarded.

Some bank accounts were brought to my attention but did not meet the requirements set out in the Senior Traffic Commissioners statutory guidance. One partnership account had an overdraft whilst another had insufficient monies and only had details for a single month. Another account was described as Graham Goodsir’s business account with a reference to it being a sole trader, in that case the monies available were also insufficient.

Whilst there was full discussion and analysis as to finances in the confidential session of the hearing, it is appropriate that I make reference to some of the comments made. I was told “With regard to the finance, the problem has been inherent in the main account because of the use of that account by Mr Hughes for his own and his family’s personal use.” In other words it was put to me that Mr Hughes was not being disciplined in ensuring that there was no mix between the partnership business account and his own personal accounts.

Evidence of potential financial problems were also identified in other evidence given to me. Colin Rogers referred to financial problems when interviewed by the DVSA. During his interview he told DVSA examiners “everything was revolving around the lack of money, no drivers, no vehicles, debt collectors for a while. There was always empty promises or acknowledgements”. He also referred to non-payment of subscription for use of Tachomaster equipment. Additionally, Colin Rogers had repeated issues relating to employer pension contributions.

As noted by DVSA examiners, there was an issue when a vehicle part could not be ordered until paid for by Kevin Bryant from his personal account.

4. Findings of fact and material considerations

All of the factual written evidence of the DVSA examiners was accepted by those who attended the public inquiry before me. I adopt their evidence as factually accurate, except as specifically contradicted below.

The small exception relates to the issue as to whether Graham Goodsir deliberately lied to them, I have no hesitation in accepting that he gave contradictory answers and that their conclusion was a reasonable one to take. My difficulty is that before making a finding of a deliberate lie by an operator and inherent dishonesty I need cogent evidence. Evidence has been given of inaccurate, misleading and contradictory answers, but the same examiners have also described the family as co-operative and at the hearing a year ago they were described as an old established family coming to their first public inquiry.

I provide assessments below of individuals in this case.

4.1 Graham Goodsir

Graham Goodsir appeared before me as what most objective observers would describe as a REDACTED. He did not speak much when the operator was seen by the DVSA and he didn’t say much when appearing before me at the hearing on 12 August 2020. As the notional head of a family who have been operating PSVs for a large number of years, he is REDACTED that has prevented him from functioning anything like normally.

Whilst I have just drawn back from making a finding of dishonesty, he has provided contradictory answers to DVSA examiners who expect full frank and candid answers to questions. His lack of competence is illustrated by his being unaware that he needed to register services with a traffic commissioner and not the local authority.

I consider Graham Goodsir as incapable of running a PSV business and believe that it is both in his interest and that of the industry that he be kept out of any management role for a period of time. I would not have any issue in his providing financial resources for other members of his family to run a PSV business provided that that new business had Kevin Bryant as transport manager. Graham Goodsir should have no management role although I would not have a difficulty in his being retained to drive PSVs (subject to there being no medical impediment from DVLA).

4.2 Colin Rogers

Colin Rogers clearly did not perform the required efficient and effective management of transport as required in law. Were he to apply to be a transport manager for anything other than one or two vehicles, I would adjudge him to be lacking the necessary competence and if he had sought to retain his position as transport manager for this operator, I would have taken away his repute.

Whilst the above matters are damning there are positive features. Colin Rogers produced paperwork that showed him to be capable for running a small PSV business with one or two vehicles. DVSA examiners commented on his inexperience, I agree but would add that he was naïve too. He should have been aware that only starting work after 9 am for a bus operator would make it especially difficult to perform his functions properly. Colin Rogers worked part time on a salary that was above the minimum wage but was not generous.

Others took advantage of Colin Rogers’ naivety, especially Mr Hughes. Disappointingly Colin Rogers was invariably blamed for matters when failings were identified when others left. Whilst he had responsibility it was clear that in this dysfunctional set up, his title of transport manager was one which was seen by others as entitling them to criticise him.

Colin Rogers is not a strong manager and I contrast the response that he received from Mr Hughes with that from the more experienced and stronger transport manager, Kevin Bryant.

Factual evidence from Colin Rogers was corroborated by Kevin Bryant.

I accept that Colin Rogers gave honest evidence and adopt as factually correct his description of interactions with others, including his damning evidence in relation to one of the partners, Mr Hughes. In the event of Mr Hughes disputing factual matters at any future driver conduct hearing I expect Colin Rogers to make himself available to give evidence and answer questions if necessary.

4.3 Kevin Bryant

The DVSA evidence is clear that once Kevin Bryant became involved in the operation, maintenance and records improved considerably. I heard other evidence of improvements and, on the evidence give, Kevin Bryant appears to be a competent transport manager.

I was impressed at Kevin Bryant’s answers to me relating to his interactions with Mr Hughes. He also confirmed the accuracy of evidence provided by his inexperienced predecessor, Colin Rogers.

Kevin Bryant is now paid at an appropriate remuneration for the work that he does. He will be an important part of any new application involving the Goodsir family, if he is not full time transport manager for any successor entity, I would have very real concerns.

1. As with Colin Rogers, I expect Kevin Bryant to make himself available to attend any future driver conduct hearing for Mr Hughes and to give evidence and answer questions if necessary.

4.4 Thomas Glyn Hughes

I am not clear whether Thomas Glyn Hughes is more commonly known as Thomas Hughes or Glyn Hughes, however I make a finding that this individual’s behaviour has led to many of the difficulties experienced by the partnership. To be specific:

• I was told that Mr Hughes used partnership accounts for his personal use, I accept this as accurate.
• I accept as accurate the descriptions of interactions with Mr Hughes given by both DVSA examiners and the transport managers who work or have worked for this operator.
• Mr Hughes lost interest in the partnership and abdicated responsibility.
• I find as fact that Mr Hughes regularly took a bus home and parked it near his house instead of a registered operating centre.
• I find as fact that Mr Hughes has been effectively operating a PSV as a sole trader using the Goodsir name.
• I find as fact that there have been no records for Mr Hughes’s operation as a sole trader, assisted by his family.
• I find as fact that the principal reason for the breakdown of this family business is the behaviour of Mr Hughes.

Aside from abdicating responsibility as an operator he has not kept records, he is also the holder of a PCV licence and this will need consideration by a traffic commissioner, although I accept that I cannot make any order in relation to that as no formal notice has been issued under the Road Traffic Act 1988. Mr Hughes should anticipate a call to a driver conduct hearing.

4.5 Paula Goodsir and Emma Goodsir

If either or both Paula and Emma Goodsir seek to be involved formally in any new entity, I expect them to attend specialist operator licence awareness training. The same applies to any other members of the Goodsir family who seek to be involved in PSV operations.

4.6 Assessment of financial standing

The leading case on financial standing is 2012 17 NCF (Leicester) Ltd, I have also considered 2012 54 Ron McCambridge. The Senior Traffic Commissioner’s statutory guidance is clear and is helpful. Some monies were shown in accounts, but not for the full three months as set out and for the required sum. The loan facility was deemed by me to be unacceptable in July 2019 and I was disappointed that the operator sought to rely on it again. The fact that the loan had not been drawn down was not a surprise when I saw that it required both partners to agree, and furthermore, there were properties potentially at risk.

1. It may be that the Goodsir family have sufficient finances but that they were not shown to me, they knew that this partnership operator’s licence would end, I have little doubt that there might be other sources of family finances.

2. A period of 5 months grace was granted in July 2019, this was generous. It would be unconscionable to allow any extension to that period. I also remind myself that it is well in excess of 12 months since the period of grace was granted.

3. I make a finding that the operator no longer satisfies the requirement for financial standing and comment that any other decision would be perverse. I remind myself of the decision in Fenlon below relating to trust and in particular the Stay decision in Highland Car Crushers Ltd

4.7 Professional competence

There was a lengthy period of time when no formal transport manager was in place, this followed the resignation of Colin Rogers and the time lapse until his successor, Kevin Bryant, obtained the necessary qualifications. It is clear that if I was determining professional competence at the time before Kevin Bryant became involved, I would decode that it was lost. I have considered 2011/36 LWB Ltd which sets out that the new transport manager for a company must be (i) of good repute, (ii) professionally competent and (iii) be under contract to provide continuous and effective responsibility (now continuous and effective management) for the transport operations of the business. Kevin Bryant fulfils these criteria.

Case law sets out that I need to make decisions as at the date of the public inquiry. 2001/49 Norbert Dentressangle sets out that repute and other requirements including professional competence must be judged as at the date of the traffic commissioner’s decision. Accordingly professional competence exists at the date of the public inquiry.

4.8 Repute

I appreciate the need for traffic commissioners to avoid becoming involved in issues of law, 2004/202 D Holloway, this will include formal determinations as to whether a partnership exists. However I can and I do make a determination that the partnership between the two partners is broken to the extent that it does not function properly and relationships have broken down. The de facto end of the partnership is seen by the fact that it now appears to be run by various members of the Goodsir family with overall control by the new transport manager Kevin Bryant. Importantly it is not being run in any effective way by either of the two partners.

The bus registration failures were a result of inefficient and ineffective management. It is highly relevant to any finding of loss of repute that the operator did not appreciate that it needed to make applications for bus registrations and it was not a matter for the local authority. If this entity was to continue then I would consider orders under section 26(1) of the Transport Act 1985 and financial penalties under section 155 of the Transport Act 2000. I do not make such orders as that would not serve any useful purpose in view of the inevitability of the demise of this operator’s licence.

I have conducted a balancing exercise, the most significant positive feature is that there is a new, and apparently competent, transport manager in place, he has made considerable improvements to systems and compliance. The positive features have allowed me to make an order of revocation which is not an immediate one as he appears to have addressed significant road safety issues.

Failures identified by the DVSA and conceded by those who attended on 12 August 2020 are serious and very much outweigh the positives.

I ask myself if I can trust this operator and answer in the negative. I remind myself of the case of 2006/277 Fenlon where it was said:

It has been said on many occasions that trust is one of the foundation stones of operator licensing. Traffic Commissioners must be able to trust operators to comply with all the relevant laws, rules and regulations because it would be a physical and financial impossibility to police every aspect of the licensing system all day and every day. In addition operators must be able to trust other operators to observe the relevant laws, rules and regulations. If trust between operators breaks down and some operators believe that others are obtaining an unfair commercial advantage by ignoring laws, rules or regulations then standards will inevitably slip and the public will suffer.

In determining the outcome of this case I have also had regard to a Stay decision in Highland Car Crushers Ltd where it was said: “Other operators, with knowledge of the case, might be tempted to look at the circumstances and say to themselves this operator appears to be getting away with it so why should we bother to incur the expenditure of time, trouble and money to run a compliant operation? It only needs one or two operators to adopt this approach to lead to a greater risk that the operator licensing system, which contributes to road safety, will be fatally undermined”.

In the case of 2007/459 KDL European Ltd the court said:

we are satisfied of the need “to make an example of the operator so as to send a warning to the industry as a whole”. This is consistent with the approach by the five-judge Court of Session in the Thomas Muir case (see paragraph 2(xiii) above) where deterrence is expressly mentioned (“in particular for the purpose of deterring the operator or other persons from failing to carry out their responsibilities under the legislation”). This is not by way of punishment per se but, as Lord Cullen said, is “in order to assist in the achievement of the purpose of the legislation”. We answer the question posed in 2002/17 Bryan Haulage (No.2) “is the conduct such that the operator ought to be put out of business” in the affirmative. And we judge this at the date not only of the public inquiry but also of the appeal. This is a bad case and we hope that the message sent out will be clear to all.

Considering the future of this operator’s licence, I need to ask my self what is known as the Priority Freight question. The court in 2009/225 Priority Freight said:

In our view before answering the ‘Bryan Haulage question’ it will often be helpful to pose a preliminary question, namely: how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime? If the evidence demonstrates that it is unlikely then that will, of course, tend to support a conclusion that the operator ought to be put out of business. If the evidence demonstrates that the operator is very likely to be compliant in the future then that conclusion may indicate that it is not a case where the operator ought to be put out of business. We recognise, of course, that promises are easily made, perhaps all the more so in response to the pressures of a Public Inquiry. What matters is whether those promises will be kept. In the present case the Appellant company was entitled to rely on that old saying that ‘actions speak louder than words’.

I answer the Priority Freight question in the negative, the entity before me is a partnership and that partnership is clearly broken. I do not trust this operator to get things right. In this context I am dealing with the entity which is a partnership between Graham Goodsir and Mr Hughes, Skip It (Kent) Ltd 2010/277.

I go on to consider the Bryan Haulage question. Here the court in 2002/217 Bryan Haulage (no. 2) said:

In applying the Crompton case it seems to us that traffic commissioners and the Tribunal have to reconsider their approach. In cases involving mandatory revocation it has been common for findings to have been made along the lines of “I find your conduct to be so serious that I have had to conclude that you have lost your repute: accordingly, I have also to revoke your licence because the statute gives me no discretion”. The effect of the Court of Appeal’s judgment is that this two-stage approach is incorrect and that the sanction has to be considered at the earlier stage. Thus, the question is not whether the conduct is so serious as to amount to a loss of repute but whether it is so serious as to require revocation. Put simply, the question becomes “is the conduct such that the operator ought to be put out of business?

Again I remind myself that the entity holding the licence is one that is a broken partnership. I answer the question whether the conduct was such that the operator ought to be put out of business in the affirmative.

In view of my answers to the two questions above, I go on to revoke the operator’s licence for the partnership. The revocation is not immediate as at the time of the latest public inquiry the new transport manager is ensuring compliance and has exponentially improved systems. An immediate revocation will not help the local authority and the local community, again I remind myself that the Goodsir family have been regarded historically as co-operative and compliant by regulatory bodies.

Statutory document number 10 on The Principles of Decision Making & The Concept of Proportionality has helpful guidance on personal disqualifications, in particular I note paragraph 100. The section 28 disqualification of 12 months for Graham Goodsir is modest and is significantly less than what it would otherwise be in recognition of the fact that Graham Goodsir’s REDACTED. I consider that it is in Graham Goodsir’s interest and in the interest of the PSV industry that he serve a period of time before he be allowed back as an operator in any format. Note I have made specific reference to not having an issue with Graham Goodsir having a financial interest or being a driver. However he needs to keep out of the management of any new entity.

Turning to Mr Hughes he has decided to not attend and answer questions before me. I remind myself of what Colin Rogers and Kevin Bryant said relating to Mr Hughes’s reaction to be told to stop parking a PSV outside his house and to cease operating illicitly outside of the partnership. I was told that he did not have any records for the work that he organised and ran from adjacent to his family home. Mr Hughes needs to be kept out of the industry for a considerable period of time, if he does not come back to the industry that will be no loss. My order of indefinite disqualification reflects the fact that he would need to come back to a traffic commissioner to seek to have any disqualification removed. In this case the indefinite period should be for at least a decade, reflecting the seriousness of the sustained and appalling actions of Mr Hughes.

The rules of natural justice determine that I cannot make any order in relation to Mr Hughes’s vocational entitlement as he has had no notice that this is being considered. This is addressed by paragraph 10 above.

5. Decisions

I make decisions as set out at paragraphs 1 to 10 inclusive.

Nick Jones

Deputy Traffic Commissioner

21 September 2020