Decision for James McCann t/a J McCann Transport (PM1082495)
Written confirmation of the Traffic Commissioners decision in Scotland for James McCann t/a J McCann Transport and transport manager James McCann Jnr
IN THE SCOTTISH TRAFFIC AREA
JAMES McCANN t/a J McCANN TRANSPORT - PM1082495
AND
JAMES McCANN Jnr – TRANSPORT MANAGER
CONFIRMATION OF THE TRAFFIC COMMISSIONER’S DECISION
Background
James McCann holds a Standard National Public Service Vehicle Operator’s Licence authorising 3 vehicles (3 discs in issue). James McCann Jnr is named as the Transport Manager and has acted in that capacity since 12 April 2016.
There is one Operating Centre, at 38 Garrell Road, Kilsyth, Glasgow G65 9JX. Preventative Maintenance Inspections are said to be carried out by ALB Mot Service Centre at 10-weekly intervals.
The operator and now former Transport Manager, Nicholas Worton, attended a Public Inquiry on 15 December 2014 to consider a variation application to increase authority from 3 vehicles to 4 vehicles. The operator apparently met the statutory criteria and the application was granted. There are no small vehicle restrictions. The operator operates two minibuses for a couple of hours a day on schoolwork and the occasional private hire for a local junior football team.
The operator and the current Transport Manager, Mr McCann Junior, attended a Public Inquiry on 8 May 2025 following reports of unsatisfactory maintenance. The Transport Manager’s repute was tarnished. In the absence of references to legislation, am unable to discern from the decision letter dated 9 May 2025 what adverse findings were made by the Deputy Traffic Commissioner, save:
“The operator has sought to reduce the authorisation from four to three vehicles. I grant this variation which means that finance is clearly met. I accept Mr Willis’ submission that the transport manager and the operator took their eyes off the ball. This is a business which does mainly GB domestic work with the occasional private hire that falls within EU tachograph rules. The failure to restart downloading and analysing tachograph data after the end of lockdown is not excusable and, in fairness, neither the operator nor the transport manager suggested otherwise. Compliance with the ‘rules about drivers’ hours and tachographs is mandatory – a failure to have a functioning computer to enable this to be done and the failure to have adequate software for analysis is also inexcusable. I consider that a warning would be insufficient. I have decided to curtail the licence by removing the margin of two vehicles for three months until 08/08/2025 at 23:59. I am advised that this will not have an adverse effect on the business. I accept the undertaking offered to submit an independent audit of all as aspects of the transport operation by Friday 14/11/2025.””
Hearing
The Public Inquiry was listed for today, 28 January 2026, in the Tribunal Room 1 of the Office of the Traffic Commissioner in Edinburgh. James McCann was present, accompanied by James McCann Jnr, Transport Manager.
Issues
The public inquiry was called following notice that I was considering grounds to intervene in respect of this licence, and I referred to the operator to the following sections of the Public Passenger Vehicles Act 1981:
- 17(3)(a) – statements relating to inspection intervals, that the nominated Transport Manager would exercise effective and continuous management, and to comply with conditions on the licence.
- 17(3(b) – notify changes relevant to mandatory requirements
- 17(3)(aa) – undertakings (vehicles to be kept fit and serviceable, effective driver defect reporting, complete maintenance records, drivers’ hours and tachographs)
- 17(3)(e) – material change:
- 17(1)(a) – repute, financial standing, professional competence.
- 28 Transport Act – Disqualification.
James McCann Jnr was also called to consider whether he had exercised effective and continuous management and therefore whether I should make a finding under section 17(1)(b) preventing him from relying on his Certificate of Professional Competence.
The operator was directed to lodge evidence in support including financial, maintenance and other compliance documentation by 14 January 2026. The average of the financial statements in Mr McCann’s own name, appeared to exceed the prescribed sum of £17,000. However, no further compliance documentation was produced.
Determination
An audit report prepared by OLMC Group Ltd was uploaded to the VOL record on 9 November 2025, together with the operator’s response. The auditor had apparently given the operator a “red” scoring under its own rating scheme. I was interested in the detailed findings, as against the operator licence requirements, since the previous Public Inquiry and the Traffic Investigation Visit Report completed on 31 December 2024 (page 81), but following a visit in November 2024
The Traffic Examiner, Mr Munro, recorded that the Operator operates 2 minibuses specified on the licence, RX71 TFK and RJ18 NZY, on SPT school contract (Douglas Academy and Condorrot Primary School) and private hire work (with only the operator as driver). The vehicles were the subject of a PSV school check in June 2024 where concerns were identified. The driver of vehicle BL18 SBY had D1 entitlement but with a 101-restriction code, so did not have the appropriate entitlement to drive the vehicle or insurance. Alleged offences were also identified against the operator, who was driving RJ18 NZY. Neither vehicle had appropriate school signs visible
In assessing compliance, Mr Munro noted that there was no induction package. The main drivers were the operator and Catherine Williamson (his sister-in-law). Copies of DCPC cards were retained. The operator relied on CPC Direct Training Ltd for his Driver CPC courses, but Catherine Williamson was expected to pay for her own courses. There was no system in place to monitor hours completed prior to CPC expiry date, advice given. The operator suggested that Catherine Williamson might be “self-employed” but was unable to produce any invoices for that work. He claimed that invoicing had stopped and she was in fact paid by BACS payment on a monthly basis, suggesting a permanent arrangement. Copies of driving licences were held on file, but only after the encounter. No driving licence checks had been completed.
2 spare print rolls were kept in both vehicles. Drivers Digital Cards and Vehicle Units were downloaded monthly, but only from November 2024. No downloads had been actioned at the time of the encounter, e.g. RJ18 NZY last download 15 October 2021 (in use since 13 March 2019). Operator claimed to have encountered issues with an old laptop. He now relies on Easytac software but had not generated any infringement or missing mileage reports. The Examiner described this as a basic package with no evidence of being to generate appropriate reports for instance on Working Time, but the operator was ignorant of those requirements. More positively, when operating solely under GB Domestic Rules, records of all activities had been kept as digital cards were used for school runs.
The Examiner noted a wall chart for inspections, Vehicle Excise, annual tests and tachograph calibration. He confirmed the presence of a vehicle file for RX71 TFK and RJ18 NZY but lacking calibration and annual test details.
He referred to James McCann Jnr, who gained his CPC qualification on 21 January 2016 but had undertaken no refresher training. He is apparently employed as a full-time air traffic engineer at Edinburgh Airport and was not present during the visit. I found the TM1 form at page 26 of my bundle to be incomplete. It became clear that the operator, James McCann Snr, manages the day-to-day transport operation. The Examiner described the Transport Manager as in name only. Following the encounter, the operator was downloading the driver and Vehicle Unit within the statutory deadlines, and the planning of journeys appeared to be resolved, but there remained a large number of shortcomings. He asked whether, if he only undertook school runs, whether the Easytac software would be suitable. He was advised that it was the private hire work which was beyond his current software. The operator suggested that he was planning to close the business within 18 months and retire.
Given the assistance provided by Mr Munro in 2024, I was surprised to note the following findings in the operator’s own audit of November 2025:
- OCRS system (unsatisfactory): TEVR – Operator was advised to sign up to OCRS. Audit - OCRS reports are not downloaded from VOL or checked on a monthly basis. Vehicle test history reports and vehicle encounter reports are not downloaded or checked on a monthly basis. First time pass rate for vehicle test history is not downloaded or checked following Annual tests. (Annual test failures were recorded for brakes and lamps.)
- Gate check (unsatisfactory): Not being completed or recorded in writing.
- Rolling Road Brake Tests (unsatisfactory): Only being completed at annual test, not being carried out on routine maintenance inspections.
- Wheel retorquing process (unsatisfactory): “There is no effective or documented wheel retorque process in place. One vehicle had a brake reline two weeks ago but there is no retorque documents when the wheels were refitted and there are no wheel retorque ‘tags’ or documents on file.”
- Wheel fixing retorques (unsatisfactory): “The operator has an ‘in-house’ torque wrench to torque and re-torque his own wheels, however, these is no calibration certificate the wrench”.
- Safety recall management (unsatisfactory): Not carried out on a regular basis. The operator relies on the vehicles going to Mercedes annually for MOT to check recall notice.
- Calibration certificates – Evidence of tachograph and LOLER calibration certificates but no calibration certificate for wheel torque wrench.
- Record retention and management: Maintenance inspection records (unsatisfactory): “Inspection sheets are not completed correctly by the maintenance provider, tyre tread depths are not being recorded nor is tyre age.”
- Are all Maintenance inspection sheets stamped by the repair agent as validation? (unsatisfactory): “Inspection reports are not stamped or verified by the maintenance provider.”
- Wall planner (there is one, but roller brake tests are not pre-planned as noted above, auditor noted this as unsatisfactory).
More positively, he noted that Driver Catherine Williamson appeared to have been properly retained, as was suggested by the monthly BACS payments. There was no information on the payment of National Insurance and tax deductions. I acknowledge the confusion which may have arisen amongst PSV operators as a result of the Upper Tribunal decision in 2018/066 Abus Ltd, which touched on the engagement of drivers under section 81(1)(b)(ii) of the Public Passenger Vehicles Act 1981. However, there was no reference to the approach taken by HMRC and concentrates on the question of material change and fronting, whilst making broad statements which did not accord with findings of the specialist Tax Chamber in TC/2015/03681 RS Dhillon and GP Dhillon Partnership v The Commissioners for Her Majesty’s Revenue & Customs. The GOV. UK website offers further guidance, as does the HMRC employment status checker tool. The Upper Tribunal decision in 2019/54 Bridgestep Ltd & Tom Bridge, referred to the dangers which arise from a lack of control of drivers. The issue of control was made clear to the operator and Transport Manager during the hearing.
There is apparently now a “basic In-house” driver handbook, including a code of conduct, written by Messrs McCann. The auditor confirmed Mr Munro’s findings that Digital and driver cards are held on file and tracked by Easy-Tac software. Driver licence checks are carried out on a quarterly basis. The operator has 3 penalty points (acquired on 21 August 2025). These were not notified. The operator found drivers’ hours, working time recording to now be effective.
The auditor suggested that the Transport Manager understood how to identify manage relevant risks. I contrast that with the above shortcomings and the admission that roller brake testing, wheel fixing retorques and deficiencies in maintenance records had not been addressed. I was told that Mr McCann Jnr attended Transport Manager refresher training in December 2025. He told me that he was aware of how to read a brake performance test report. However, he was unaware of the current guidance on the proper order for brake tests, inspections and the time limits. The operator continued to labour under the impression that brake tests are only required 4 times per year. The Guide to Maintaining Roadworthiness advises that every safety inspection should include a brake performance assessment using either a roller brake test, a suitable brake performance monitoring system, or a decelerometer, with a minimum of four laden roller brake tests per year, where that is applied. The current contractor’s brake testing equipment is dated, so the operator has been presenting vehicles for testing by Motus and Mercedes. The operator was not aware that: “Vehicles can be presented for roller brake testing up to 14-days before the safety inspection.”
The auditor noted that no driver detectable defects were being identified at Preventative Maintenance Inspections, but then no driver was reporting any defects either. The auditor described this as “irregular”. I found it incredible and that proved to be the case. The operator was simply unaware of his responsibilities – he very frankly admitted that what he clearly considered to be minor issues, such as warning lights on the dashboard, were not reported. Accordingly, there was nothing for the Transport Manager to audit. Both had attributed this to low mileage and low usage. That is not the case, and both Drivers must now be monitored by the Transport Manager to ensure proper recording.
Based on the evidence summarised above, I was satisfied that I should record the following adverse findings under the Act: 17(3)(a) – statements relating to inspection intervals, that the nominated Transport Manager would exercise effective and continuous management, and to comply with conditions on the licence; 17(3(b) – notify changes relevant to mandatory requirements; 17(3)(aa) – undertakings (vehicles to be kept fit and serviceable, effective driver defect reporting, complete maintenance records, drivers’ hours and tachographs); 17(3)(e) – material change. There had been improvements, as touched above, but not those findings could be described as historic and were indicative of a failure in effective management and oversight.
The comments regarding James McCann Jnr called into question whether there was a genuine link between operator and Transport Manager. In evidence I was told that there is no formal link with Mr McCann Jnr beyond the family connection and that he undertakes his duties around visits to his parents. His employer is aware of this role. He was directed to read and understand paragraph 60 of the Senior Traffic Commissioner’s Statutory Document No. 3 on Transport Managers.
The operator hopes to operate to the end of his current contract in June 2028. It was noted that his retirement date appears to have extended on a couple of occasions. That will depend largely on his ability to comply with the licence requirements in the future, but the basic nature of the undertakings offered illustrates the challenge here:
- Laden roller brake tests to be conducted at least 4 times per year and no more than 14-days before a Preventative Maintenance Inspection.
- A form of metred brake performance testing to be undertaken for every Preventative Maintenance Inspection, as per the Guide to Maintaining Roadworthiness.
- All defects encountered by drivers immediately before and during operation of vehicles will be recorded in writing, so that they can be audited by the Transport Manager.
The efforts to date were noted, but frankly, the above undertakings should not have been required. This was not the first Public Inquiry, with further opportunity given to demonstrate compliance through an audit report. Operators should not labour under the impression that an audit undertaking is an opportunity to have a go and then remedy any shortcomings thereafter. That would be akin to presenting a vehicle for annual test, waiting to see what defects are identified, and then fixing the vehicle afterwards. I am entitled to rely on the word of the operator that it will comply with all the conditions and undertakings on the operator’s licence. Deterrent action was required to drive that message home to the operator. I imposed a condition on the licence in effect curtailing operations to two vehicles only from 23:45 tonight, with 7 days to return the extraneous disc. Any application to increase operations would need to be referred to a Traffic Commissioner. The repute of operator and the repute of the Transport Manager have been badly tarnished. They should consider this a final chance or risk the loss of the licence in future.
R Turfitt
Traffic Commissioner
28 January 2026