Upper Tribunal Adjusts Transport Manager's Disqualification Period

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UKUT 0222 (AAC) Appeal No. T/2019/24 IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER [NAME] COMMISSIONER APPEALS

IN AN APPEAL FROM THE DECISION OF [NAME] Commissioner for Wales dated 27 February 2019

Before: Her Hon. Judge J Beech, Judge of the Upper Tribunal Stuart James, Specialist Member of the Upper Tribunal [NAME], Specialist Member of the Upper Tribunal

[NAME]:

[COMPANY] trading as [NAME] [COMPANY] [NAME] [COMPANY] trading as [NAME] attendance: [NAME] of [NAME] on behalf of the [NAME] with [NAME] in attendance.

Heard at: Field House, 15-25 Bream’s [ADDRESS], [POSTCODE] Date of hearing: 11 June 2019 Date of decision: 16 July 2019

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that the appeal in respect of the disqualification of [NAME] under s.85 of the [NAME] Act 1985 be ALLOWED to the extent that the period of disqualification of two years from the date of the public inquiry held on 4 October 2018 be set aside and replaced with a period of disqualification of eighteen months from 23.59 on 1 April 2019, the date of the [NAME] Commissioner’s decision. All other appeals are DISMISSED

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2 T/2019/24 SUBJECT MATTER:- Adequacy of evidence to establish unlawful use of an operating centre; good repute; proportionality of orders of revocation and disqualification.

CASES REFERRED TO:- 2009/225 Priority Freight & [NAME]; 2002/217 [NAME] No.2; [COMPANY] v Secretary of State for [NAME] (2010) EWCA Civ 695

REASONS FOR DECISION

1. This is an appeal from the decision of the [NAME] Commissioner for Wales (“the [NAME]”) made on 27 February 2019 when he:

a) Revoked the operator’s licence of [COMPANY] trading as [NAME] (“[NAME]”) under s.17 of the Public Passenger Vehicles Act 1981 (“the Act”) with effect from 0001 on 18 March 2019; b) Refused the application for an operator’s licence made by [COMPANY] (“[NAME] Wales”) under s.14 of the Act; c) [NAME] (“[NAME]”) from holding or applying for an operator’s licence for a period of two years under s.85 of the [NAME] Act 1985 with effect from 4 October 2018; d) [NAME] as a [NAME] manager until he re-qualified by passing the [NAME] manager CPC qualification; e) [NAME] (“[NAME]”) as a [NAME] manager until he re-qualified by passing the [NAME] manager CPC qualification (this determination is not the subject of appeal); f) Revoked the operator’s licence of [COMPANY] trading as EAT (“EAT”) under ss.14 and 17 of the Act with effect from 1 April 2019.

The Background

2. The background relevant to these appeals can be found in the appeal bundles, the transcript of the hearing, the written decision of the [NAME] and is as follows. [NAME] was granted a standard international PSV licence on 18 November 2003 in the [NAME] area authorising 10 vehicles with 10 discs in possession. The sole director was [NAME] who was also the [NAME] manager. The operating centres were The Former Grange Centre in Shrewsbury (“the Shrewsbury operating centre”) and more recently, Gledrid Truck Stop in Oswestry (“the Oswestry operating centre”) was added to the licence. The maintenance contractors notified to the Office of the [NAME] (“OTC”) were [COMPANY] and [COMPANY] (“[NAME]”) and the PMI frequency on the licence was six weeks. [NAME] operated under the easyBus branding and operated four [COMPANY] including service 64.

3. [NAME] was called to a preliminary hearing before the [NAME] Commissioner for the West Midlands on 29 March 2017 due to the cancellation of a registered

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3 T/2019/24 service prior to the 56-day notice period. The explanation apparently given was that a member of staff had cancelled the wrong registered service. No action was taken against the operator’s licence.

4. A maintenance investigation was conducted in December 2017 which was presumably marked as unsatisfactory (the report not having been included in our papers) as the [NAME] Commissioner issued a warning letter to the company on 10 January 2018.

Relevant Registered Services

5. On 1 April 2017, [NAME] began operating registered service 64 from Llangollen to Llanarmon DC under the easyCoach branding (the fourth registered bus service operated by the company). It was a rural route, servicing communities within Wales that did not have access to other means of public [NAME]. The service also provided [NAME] for pupils attending Ysgol Dinas Bran in Llangollen. The route was operated under contract with Wrexham Council. As a result of complaints received from Wrexham Council, [NAME], Bus Compliance Officer for Bus Users UK Cymru, commenced a monitoring exercise for 11 days between 10 April and 2 June 2017. She made 47 observations and calculated that service punctuality was 77% with 15% of the buses running early, 4% running late and 4% either failing to operate or running off route. A copy of the report was sent to [NAME]. [NAME] then re-monitored the route between 5 June and 21 July 2017 achieving 25 observations. She did not find any issues with the route and the company was sent a “well done” letter by Bus Users Cymru on behalf of the [NAME] Commissioner. The company did not respond to the monitoring reports or contact [NAME].

6. In January 2018, further complaints were received about service 64 and so [NAME] commenced a further monitoring exercise on 29 January 2018 but only completed three days before injury caused her to be absent from work for two months. She then recommenced the monitoring exercise. She achieved 75 observations over eleven days and found 4% of the buses to be running early, 7% running late, 21% failing to operate or operating off route. The overall punctuality figure was 60% and 73% of the buses observed were displaying incorrect destinations which was caused by two vehicles having faulty destination displays. Instead, the vehicles had an A4 size piece of card with “64” written on it which was stuck inside the windscreen. As there was no destination displayed and as the route involved three loops, it was not possible to guess which direction the bus was travelling in at certain locations. During the period of monitoring, Wrexham Council received sixteen reports of vehicles breaking down or failing to operate to the registered route from either passengers or the school. An email from the Council informed [NAME] that despite multiple requests, the company had failed to notify the Council of service updates or issues when incidents had taken place.

7. [NAME] noted that [NAME] had registered four further routes: services 2, 2D, 44, 42. All but service 2 operated entirely within Wales and operations were scheduled to commence between 27 and 29 June 2018.

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8. A copy of [NAME]’ report was sent to [NAME] who responded, expressing concern and disappointment with service 64 particularly in the light of the 100% compliance figure achieved in July 2017. He blamed complacency on the part of the regular [NAME] on the route and his/her decision to miss stops. [NAME] was unaware that this was taking place and had issued the [NAME] with a final written warning. Improvements had been made in the tracking systems used which had previously only monitored the two end points of a journey. [NAME] apologised for the inconvenience suffered by passengers and stated that the company was working with Wrexham Council to review the route timings which should improve timeliness. He invited [NAME] to monitor the service during the summer to ensure that the improvements “translate into reality for the passengers”. As for the faulty destination blinds, there was an intermittent fault in both vehicles and these had now been rectified and the drivers spoken to about the need to report faults.

9. On 17 July 2018, [NAME] for Wrexham Council, sent an email to [NAME] concerning service 64. He highlighted that the service was a fully tendered service and as such, with a timetable that met the [NAME] requirements of local students, utilisation of this service was made by the council for student [NAME]. Due to poor timetable compliance and numerous complaints from concerned parents, local elected members and representatives of the school, the council had recently been forced to remove qualifying students from the service and provide dedicated alternative school [NAME] arrangements. This had resulted in unnecessary additional cost to the council. Officers had been in continued dialogue with [NAME] concerning the service, both informally and formally but despite reassurances given concerning future performance, there had been no marked improvement to the disappointment of the council and those communities affected. This was the only local bus service serving those communities.

10. In the meantime, on 27 June 2018, in line with standard procedure in respect of new services, [NAME] commenced monitoring of services 2, 2D, 44 and 42 over a period of five days to 10 July 2018. She made 84 observations and found that 3.5% of the buses were early, 20.5% were late, 17.25% failed to operate or were off route and that overall punctuality was 56%. She noted that the buses were operating out of an unauthorised operating centre on [ADDRESS], [NAME], Wrexham (“the [NAME]”) for the entire period of observation. A copy of the report was emailed to [NAME] on 11 July 2018 to which [NAME] responded that all of the buses were satellite tracked and he had asked his staff at his Shrewsbury operating centre to compile a report comparing [NAME]’ records with the company’s. He added “I am not sure that sending any report to the [NAME] Commissioner at this time serves any real benefit, for either Bus Users Cymru, or the travelling public. Especially when we have had neither the opportunity or time to tweak or adjust rosters and running boards to accommodate any timing or failure issues that we have experienced in the first 10 days of operation. .. of course, if there is an agenda running behind the scenes that I am unaware of, then please do let me know …” [NAME] concluded by stating that he would

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5 T/2019/24 revert back to [NAME] the following week, although she did not receive any further correspondence from [NAME].

11. On 17 July 2018, [NAME] recommenced monitoring of the four new services to establish whether there had been any improvements in punctuality and reliability and to allow for possible initial teething problems to have been dealt with. She monitored the services until 8 September 2018. In the meantime, on 22 August 2018, [NAME] applied to cancel all five registered services operating in Wales with effect from 9 September 2018 and gave advance notice to the OTC of his intention to surrender the operator’s licence of [NAME].

12. [NAME] made 116 observations and found that 14% were late, 29% failed to operate giving an overall punctuality/reliability rate of 57%. She noted that only three of the five services continued to operate until the last day of registration. The operating centre at the [NAME] continued to be used until 8 September 2018.

13. It is relevant at this stage to interpose some detail about [NAME] Wales. The company was incorporated on 23 April 2018 with [NAME] as sole director. On 4 June 2018, an application for a standard international PSV licence was made to the [NAME] area requesting authorisation for 20 vehicles. The proposed operating centre was the [NAME]. The [NAME] manager was [NAME] and its maintenance contractor was [NAME] with a workshop address of [NAME], [ADDRESS], Shrewsbury (“[NAME]”).

14. That application took the usual course with requests for further information from the OTC and more unusually, a letter of concern was sent to [NAME] arising out of an article in the Wrexham Daily Post on 18 June 2018 which included an interview with [NAME]. The article was entitled “Budget bus operator launches in Wrexham with a promise about fares” and pictured [NAME] at the [NAME] which had been painted in the easyCoach colour and branding. The article referred to the new services that [NAME] had registered (as set out in paragraph 10 above) and went on to quote [NAME] who stated that [NAME] had already relocated his easyBus depot from Shrewsbury to Wrexham with the creation of local jobs. The OTC relayed the [NAME]’s concerns that neither [NAME] or [NAME] Wales had a Welsh operator’s licence entitling them to operate Welsh services. In email correspondence to the OTC, [NAME] explained that his businesses were moving to the Wrexham area where other bus companies had recently failed and that Wrexham Council and the Welsh Government were supportive of [NAME]’s endeavours. By incorporating a new Welsh company and establishing an operating centre in Wales, [NAME] Wales could gain access to government support. Upon grant of the new licence, the authorisations on the [NAME] licence and the EAT licence would be reduced and the registered services would be transferred from [NAME] to [NAME] Wales.

The DVSA investigation - Maintenance

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6 T/2019/24 15. [NAME] first came to the attention of [NAME] (“[NAME]”) [NAME] when on 6 February 2017, a minibus operated by the company became engulfed in flames in Wrexham whilst on a service run to Manchester Airport. He made reference to the previous maintenance investigation undertaken in December 2017 (see paragraph 4 above) and noted that since that investigation, the drivers defect reporting system had changed, the [NAME] was in use as an operating centre and additional services in the Wrexham area had been registered by the company. Further, the maintenance provider was different.

16. On 6 July 2018, at 5.50, [NAME] and [NAME] along with [NAME] (“[NAME]”) O’[NAME] and [NAME] made an unannounced visit to the [NAME]. The purpose of the visit and subsequent investigation was to: a) check the condition and roadworthiness of the vehicles being operated; b) check the maintenance arrangements and procedures in use; c) follow up multiple prohibitions issued to vehicles over the previous 16 months (seven immediate, two delayed and one advisory notice). The PG9 rate for the previous five years was 44% compared to the national average of 17%; d) confirm that the [NAME] was being used as an operating centre when not authorised for such use.

The DVSA officers found five vehicles being prepared for the working day by [NAME], the proposed [NAME] manager for [NAME] Wales. All five vehicles were inspected and two were clear of defects. Two PG9s (one immediate and one delayed) and an inspection notice for two items were issued to the other three vehicles (bringing the total of PG9’s issued in a period of sixteen months to twelve). [NAME] was told that the [NAME] and the [NAME] records were kept at the Shrewsbury operating centre. There were, however, [NAME] defect reporting cards in an office at the [NAME].

17. On 12 July 2018, [NAME] and [NAME] attended the Shrewsbury operating centre for a pre-arranged meeting with [NAME]. A maintenance agreement with [NAME] was produced dated 7 February 2018 which was for the provision of maintenance for vehicles identified in schedule 1 of the agreement. However, neither schedule 1 nor any other part of the agreement contained a list of vehicles to be maintained by [NAME] and the section entitled “safety inspection interval” was blank. [NAME] told [NAME] that he was very pleased with [NAME] as four vehicles had been prepared for annual test by them and had passed without advisories. [NAME] subsequently checked the annual test data available for the vehicles he was aware were being used by [NAME] and between the date that [NAME] had become the maintenance contractor and 12 July 2018, there had been eight vehicles presented for test with six passes and one fail (pg 82 of appeal bundle).

18. [NAME] was asked to produce [NAME] files for the five vehicles [NAME] had inspected at [NAME]. The file for [[NAME]] was missing. [NAME] thought that it might be at [NAME] because the [NAME] was undergoing repair at that site after a PG9 that had been issued for a leaking fuel tank on 3

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7 T/2019/24 July 2018. Two of the files contained only one PMI sheet each which had been completed as part of the annual test preparation of the vehicles and included the test card and brake test printout. [NAME] explained that both of the vehicles had only recently gone into service. [NAME] questioned this in his report as one of the vehicles, [[NAME]], had been encountered in Shrewsbury on 8 November 2017 whilst being operated by [NAME]. A prohibition had been issued in respect of a cracked windscreen. Further, whilst no [NAME] file had been produced for [[NAME]], that had been encountered on 1 February and 3 July 2018 whilst being operated by [NAME]. [NAME] concluded that [NAME]’s statement about the vehicles having only entered service recently was incorrect. Further, no explanation had been forthcoming in respect of the loss of the [NAME] file for [[NAME]].

19. [NAME] described the [NAME] defect reporting system as “very comprehensive” although he found examples of cards where drivers had failed to record dates and full registration numbers and the “nil defect” reporting was incomplete, contrary to the procedures set out in the company’s drivers handbook. There was no [NAME] at the Shrewsbury operating centre. [NAME] had explained that some of the [NAME] maintenance was carried out at [NAME] (one of his sites). [NAME] visited the premises later that day and viewed it from the outside only. It appeared to be a retail outlet and not wholly suitable for large [NAME] maintenance.

20. During the course of the visit, [NAME] was “keen” to discuss the PG9 issued on 3 July 2018 to [[NAME]]. He stated that the [NAME] had been left unattended and that when the [NAME] returned, there were two DVSA officers on site and a pool of diesel under the fuel tank of the [NAME]. He “insinuated” that the DVSA officers had sabotaged the [NAME] and showed [NAME] a photograph on his mobile phone which showed a rusty object with a large hole in it. [NAME] stated that the [NAME] had been repaired by the roadside earlier in the day and a fan belt replaced. Had the fuel leak existed at that time, the fitter/s would have noticed. [NAME] was of the view that as the fan belt was located at the rear of the engine on the [NAME] and not in the vicinity of the fuel tank, that was not necessarily the case. [NAME] attached a picture taken at the time the PG9 was issued which shows a large pool of fuel on the road. He inspected the fuel tank on 19 February 2018 at the [NAME] and concluded that the hole had been caused by corrosion and that it had been enlarged as a means of establishing whether a repair was possible. He noted evidence of some form of adhesive present which possibly indicated an attempt at a previous repair. A new fuel tank was fitted.

21. [NAME] also discussed a PG9 issued for the absence of legal lettering on the rear emergency window following its replacement. [NAME] was of the view that it was responsibility of the glass company to transfer the stickers to the new glass although in the experience of [NAME], that was the responsibility of the operator (and this was later confirmed by the [NAME] during the public inquiry).

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8 T/2019/24 22. On 13 July 2018, [NAME] visited the [NAME] and spoke to [NAME] who stated that he did not have the maintenance file for [[NAME]] and that the files were kept at Shrewsbury. The maintenance providers were not at [NAME] but were expected at 10.30. [NAME] returned to the site at 10.30 to find the site was locked. He waited until 11.15 before leaving.

23. On 19 July 2018, [NAME] was informed by an anonymous member of the public that a [NAME] in easyCoach branding had been involved in a wheel loss incident on A483 dual carriageway at about 18.00 on 18 July 2018. The incident had not been reported to the DVSA in accordance with PSV112 (which not only requires notification but prohibits operators from undertaking any maintenance work on the [NAME] concerned until it has been inspected by the DVSA). [NAME] attended the [NAME] at 12.30 and spoke to [NAME], the acting [NAME] coordinator for [NAME] Wales. He confirmed that there had been a breakdown the previous evening and thought it was a tyre. [NAME] of [NAME] was on site. [NAME] noted that three vehicles were in the workshop at [NAME], including [[NAME]] which was waiting for a replacement fuel tank. He concluded that [[NAME]] had been the [NAME] involved in the wheel loss incident and it was apparent that the wheel had run loose as the wheel stud holes were worn and elongated and the mating surfaces were bright, indicating movement had been present. Further, the outer wheel had deep marks in the centre consistent with wheel contact at the end of the half shaft as it left the axle. It was apparent from the [NAME] defect report that on 16 July 2018, the [NAME] reported smoke coming from the nearside rear wheel arch and as a result, the wheels had been removed and the rear hub oil seal and disc pads had been replaced on the morning of 18 July 2018. The wheels had then been replaced and torqued to 400NM as per manufacturer recommendations. The fitter then requested that the [NAME] be road tested and re-torqued. However, the [NAME] had been returned to service as the route it served was too tight for the larger vehicles. [NAME] confirmed that [NAME] had not been given a [NAME] and that all paperwork was sent to Shrewsbury.

24. [NAME] informed [NAME] that [NAME] had had a meeting with the [NAME] of [[NAME]] ([NAME]) on the morning of 19 July 2018 about the wheel loss. [NAME] informed [NAME] at 13.50 that the wheel loss should have been reported to the DVSA. At 14.30 [NAME] received an email from [NAME] enquiring as to the method of reporting the wheel loss to the DVSA.

25. [NAME] then attended Wrexham bus station to speak to [NAME]. She stated that she had repeatedly reported smoke coming from the rear nearside hub of the [NAME] and had eventually refused to drive the bus on 16 July 2018. The [NAME] was returned to her mid-shift on 18 July 2018. She reported a rumbling from the rear of the [NAME] at about 17.00 and was asked if she could limp the [NAME] back to the depot. The wheel then detached but remained close to the [NAME] which [NAME] took to be evidence that the [NAME] was travelling at low speed at the time.

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9 T/2019/24 26. [NAME] checked the details held by [NAME] for [COMPANY] and found that the company had been dissolved on 26 June 2018. Whilst the [NAME] building was big enough to house six large PSVs, he was concerned that the set of four wheel lifts which were in use on site were not suitable for conducting checks of the steering mechanism while under load. His concern was supported by the fact that when [[NAME]] was presented for prohibition clearance on 27 July 2018, it failed and a delayed PG9 was issued for a loose axle king pin.

27. Some aspects of the operation gave [NAME] cause for concern. Over the past eighteen months, the company had used six different maintenance contractors; two of the contractors, including [NAME], had not been paid satisfactorily for carrying out PMIs and repairs. [NAME] included a letter dated 5 July 2018, from [NAME] to that effect.

28. On 8 August 2017, a 16 seat minibus which was undertaking an airport shuttle service, was the subject of a roadside check. The rear row of seats had been removed to allow for luggage. This was an unauthorised alteration of the [NAME] which resulted in a tripping hazard created by raised seat fixing lugs. There were holes in the floor surface and seat belts were unrestrained. There was no means of securing luggage in the rear of the [NAME]. A PG9 was issued and this was appealed by [NAME] ([NAME] manager for EAT). Senior [NAME] (“SVE”) [NAME] re-inspected the [NAME] the following day and found that some of the items had been altered in an attempt to undermine the prohibition. The prohibition was not set aside.

29. [NAME] emailed the [NAME] to [NAME] on 20 July 2018. He did not respond. The outcome of the investigation was unsatisfactory because:

a) Only two vehicles of five were clear of defects when inspected; b) [NAME] was unable to determine inspection frequency inspections due to vehicles entering service in June 2018 and one maintenance file could not be located; c) No [NAME] was seen either at Shrewsbury or Wrexham and it was not with the maintenance provider; d) The maintenance agreement did not specify vehicles or inspection frequency; e) There was a noticeable lack of large workshop equipment at [NAME]; f) The [NAME] was being used as an operating centre when not authorised (see below); g) The number of prohibitions issued; h) The wheel loss incident on 18 July 2018.

30. On 3 August 2018, [NAME] wrote to the OTC making allegations about the operation of [NAME] and [NAME] Wales and the standard of maintenance. Ultimately, these allegations did not form part of the evidence the [NAME] considered during the course of the public inquiry.

The DVSA investigation – the use of [NAME] as an operating centre

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10 T/2019/24 31. [NAME]’s investigation commenced following the advertisement of the four new registered services being operated by [NAME]. She was concerned about the operation of those services from [NAME] when no operator’s licence had been granted for those services to be operated from that site.

32. On 28 June 2018, [NAME], accompanied by [NAME] and [NAME] attended Wrexham bus station to carry out routine [NAME] inspections. They encountered three vehicles liveried as “easyBus” and displaying operator licences in the name of [NAME] with legal lettering in the name of “[COMPANY]”. All three drivers were spoken to and they confirmed that their duties started at [NAME] where they collected the vehicles and that they returned the vehicles back to that site. They took their instructions from [NAME], the proposed [NAME] manager for [NAME] Wales. Later in the day, an easyCoach [NAME] was seen at the main car park in Llangollen. The [NAME] was spoken to. He said that his duties had commenced in Shrewsbury but that he had then been asked to attend [NAME] to collect a [NAME] and drive on the service 64 route. At the end of his duties, he would return the [NAME] to [NAME] and return to Shrewsbury in his own [NAME].

33. When [NAME] attended [NAME] on 6 July 2018 in the company of other DVSA officers (see paragraph 16 above), she noted that in addition to the five vehicles parked at the site, a sixth was leaving and a seventh was parked to the side of the main building with a “VOR” notice displayed. There were a further three vehicles parked inside the building awaiting mechanical work. [NAME] was interviewed. He denied that he “has any dealings” with the [NAME] licence although he presumed that [NAME] paid his and the drivers wages. He had started as a [NAME] Manager at the [NAME] at the beginning of June 2018 and his responsibilities were to keep an eye on the fitters; to tell them when the PMIs were due; to keep a wall [NAME] ([NAME]) although one did not exist at the time of interview; to oversee drivers’ hours and records and everything to do with the licence. VED was the responsibility of [NAME]. He confirmed that the [NAME] had been in use for two weeks and the drivers for services 2 and 42 were based at [NAME]. The drivers for service 64 were based in Shrewsbury. He accepted that all drivers spoken to at the Wrexham bus station on 28 June 2018 had started and finished their duties at [NAME] and further confirmed that none of the vehicles used at [NAME] returned to Shrewsbury as “there is no need for them to go back there”. As for the use of [NAME] when [NAME] Wales had not been granted an operator’s licence, [NAME] stated “the boss just said to take them all up there”, referring to [NAME] and the vehicles.

34. [NAME]’ evidence about [NAME] was that Gledrid truck stop in Oswestry was a specified operating centre although he could find no evidence of [NAME] using the site. [NAME] visited the operating centre on several consecutive Sundays when it was known that [NAME] did not operate services and no [NAME] vehicles were parked there. He had in fact found that the premises at [NAME] was where [NAME] parked its vehicles. He said the maintenance of the vehicles was carried out at [NAME] by two fitters and the [NAME] defect sheets were handed in to the office on site. He thought that

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11 T/2019/24 the maintenance paperwork for the vehicles was kept by the fitters in their van. The daily defect sheets were looked at on a daily basis by the fitters at [NAME].

35. On 12 July 2018, [NAME] was interviewed by [NAME]. He confirmed that he was a qualified [NAME] manager although he had not undertaken any refresher training. [NAME] was the proposed [NAME] manager for [NAME] Wales although he was not functioning in that capacity at the time of interview. He was paid by [NAME]. The drivers for service 64 were based in Shrewsbury and the drivers for services 2, 2D 42 and 44 were based in [NAME] and were paid by [NAME]. The site had been in use since 25 or 26 June 2018 and of the six buses based there, two or three had returned to Shrewsbury although four had not. He maintained that the vehicles were being rotated. There were eight discs in use at [NAME]. The vehicles were using the site because [NAME] were based there (as opposed to [NAME]) although the vehicles were normally kept in Shrewsbury. Whilst the [NAME] Wales licence was awaited, [NAME] had entered into an agreement with [NAME] Wales to operate the four new routes on a temporary period of four weeks and in that contract, [NAME] had confirmed that the vehicles had been kept at Shrewsbury for the previous 26 weeks and would return to Shrewsbury at the end of the period. Plan B was the use of the Oswestry operating centre should the contract come to an end and the operator’s licence for [NAME] Wales had not been granted.

36. [NAME] produced a document entitled “Contract for the provision of passenger [NAME] services” and was signed by [NAME] as director of [NAME] and as director of [NAME] Wales and was dated 26 June 2018, the day before the first of the four new services began to operate. Under its terms, [NAME] (the contractor) was required by [NAME] Wales to:

a) provide vehicles; b) provide drivers; c) ensure that the vehicles were maintained and insured; d) operate the four new services (which were registered to [NAME] not [NAME] Wales); e) pay to [NAME] Wales the sum of £600 per operating day on a minimum subsidy basis, whilst retaining the fares.

The use of [NAME] as an operating centre was dealt with in this way:

“the contractor may have temporary access, for its vehicles and drivers utilised under this contract, to the premises of [NAME] (Wales) Ltd at … [NAME] … for the following purposes only:

1. The day time or night time maintenance … by [NAME] .. 2. The temporary parking of its vehicles whilst used on this contract. 3. The temporary parking of private vehicles owned by its drivers .. 4. The temporary storage and supply of its own road diesel.

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12 T/2019/24 For the avoidance of doubt, nothing in this paragraph, or entire contract, creates the existence of a [NAME] for the Contractor”.

37. The contract then went on to require [NAME] to confirm that during every period of 2 weeks, vehicles used under the contract must return to their registered operating centre at least once and further confirm that all vehicles used under the contract have been normally kept at their registered operating centre for a least the previous 26 weeks at the commencement of the contract and would continue to be normally kept at the registered operating centre for at least the subsequent 26 weeks following the ending or termination of the contract unless otherwise disposed of.

38. As [NAME] was relying upon this contract to demonstrate that [NAME] was not being used as an operating centre, [NAME] forwarded the document along with [NAME]’s interview to the DVSA policy team which responded by stating that the parking of vehicles at the site, the deployment of drivers from there and with maintenance being carried out at the site made [NAME] an operating centre which was unauthorised. That information was forwarded to [NAME] on 18 July 2018 although [NAME] acknowledged that it was for the [NAME] to make a formal decision upon the issue.

39. In her public inquiry report dated 1 April 2019, [NAME] noted that even on [NAME]’s own account, four vehicles had failed to return to Shrewsbury for a period of 16/17 days contrary to provisions of the contract. It was the opinion of the DVSA that [NAME] was being used as an operating centre for the reasons stated in paragraph 38 above. Further, the advertisement on the company timetables gave the address and telephone number of the [NAME] to contact for information and enquiries.

40. On 6 August 2018, the OTC wrote to [NAME] reminding him that vehicles being used on registered services registered to the [NAME] licence should be returning to the authorised operating centre when not in use. The site at [NAME] was not authorised for that use.

41. On 8 August 2018, there were two DDA checks on [NAME] vehicles at Wrexham bus station and inspection notices were issued. It was confirmed by the drivers that the [NAME] was still being used as the place where buses were being parked overnight and where drivers collected them at the start of their shift.

42. By an undated letter received by the OTC on 13 August 2018, [NAME] gave advance notice of the surrender of [NAME] operator’s licence with effect from 9 September 2018 which was the date that all registered services were due to be cancelled. On the same day, the OTC received a further letter from [NAME] withdrawing the application for a licence made by [NAME] Wales. Neither the surrender or the withdrawal of the application were accepted by the [NAME].

Other concerns of [NAME]

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13 T/2019/24 43. On 28 June 2018, [[NAME]] was found to have been registered as SORN on the DVLA system. It was therefore being operated without VED having been paid. On 6 July 2018, the [NAME] was still registered as SORN and yet was being prepared for service again. The issue was raised with [NAME] on that day and the [NAME] was then taxed. [NAME] thought that as the [NAME] had come from another operator, [NAME], there had been some confusion when tax checks were undertaken.

44. Also on 28 June 2018, [[NAME]] was found to be displaying a void operator’s licence disc (and had been since 27 July 2017). The same disc was then removed and displayed in [[NAME]] on 3 July 2017. During interview, [NAME] stated that he was not aware of this issue. No record was kept of discs either at Shrewsbury or [NAME].

45. On 12 July 2018, [NAME] asked [NAME] to provide an insurance certificate for the [NAME] vehicles by 18 July 2018. He did not do so. She also sent him a copy of her record of his interview and requested that he sign it. He did not do so.

[COMPANY]

46. EAT was granted a Standard International PSV operator’s licence on 13 June 2017 authorising 13 discs. [NAME] was the sole director of the company and [NAME] had been the [NAME] manager but had resigned in December 2017. Notification of his resignation was not notified by him to the OTC until 16 April 2018. On 24 April 2018, an application was received by the OTC nominating [NAME] as [NAME] manager. On 27 June 2018, [NAME] made some serious allegations about [NAME] as a director of EAT. Ultimately, the allegations did not form any part of the evidence considered by the [NAME] at the conjoined public inquiry.

47. Whilst EAT did not have any regulatory history, the company was called to the public inquiry as a result of its connections with [NAME] (whose nomination as [NAME] manager was also going to be considered), [NAME] and [NAME] Wales and because of [NAME]’s allegations which were later excluded as evidence at the public inquiry.

The period leading up to the Public Inquiry

48. By letters dated 29 August 2018, the three companies, [NAME] and [NAME] were called to a public inquiry listed for 4 October 2018.

49. On 3 September 2018, [NAME] wrote to the OTC “requiring” all DVSA officers and [NAME] to attend the public inquiry hearing as it was “imperative” that they be available for cross examination and he confirmed that he would also be cross-examining [NAME]. [NAME] reminded the OTC of his right to a fair hearing and that as a result, he required a two-day hearing and demanded that [NAME] and [NAME] be issued with call up letters. Prior to the hearing, [NAME] filed 1,190 pages of evidence with the

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14 T/2019/24 OTC, the relevance of most of which was unclear and remained so even at the date of the appeal hearing.

The Public Inquiry

50. In attendance at the hearing as witnesses was [NAME] and [NAME]. [NAME] and [NAME] also attended and were unrepresented. [NAME] and [NAME] attended as observers. The [NAME] dealt with the issue of financial standing first. [NAME] had given notice that he was surrendering the [NAME] licence and withdrawing the [NAME] Wales application, he was in fact content to have the [NAME] Wales application proceed upon the basis of a five disc authorisation and in respect of EAT, a reduction to eight vehicles. [NAME] further confirmed that he now wished to be the [NAME] manager for [NAME] Wales as well as the [NAME] manager for [NAME]. He told the [NAME] that he been operating PSV’s for thirty years and had sold his operation in France in December 2017. He had taken his CPC examination in 1998 or 1999 but had not attended any refresher training since. He was booked on a two-day course in October 2018 (although the booking confirmation was for a one-day course).

51. The procedure for the hearing of evidence adopted by the [NAME] resulted in topics and issues being dealt with in a rather piecemeal fashion. During the evidence of the DVSA officers and in particular, [NAME], the [NAME] either asked [NAME] for his response to a particular aspect of the evidence or permitted him to interject and give his own account or make a statement. [NAME] was then quite properly allowed to cross examine but the result was that topics were covered in a rather unsatisfactory and disjointed way with some being returned to on more than one occasion. As a result, we have summarised the evidence topic by topic in order to provide a meaningful summary.

52. It is appropriate to note at this stage that whilst [NAME] insisted that [NAME] and [NAME] attend the hearing for cross examination, he did not in fact take issue with their evidence at the hearing. Further, he did not take issue with the evidence of [NAME].

The use of [NAME] as an operating centre

a) [NAME] confirmed that it was his view that the vehicles repeatedly seen by himself, [NAME] and [NAME] were being kept at the site and that when he attended on 6 July 2018, the engines of all the vehicles that were being prepared by [NAME] for service were cold, confirming that the vehicles had not been driven there from Shrewsbury at the beginning of the day. This was confirmed by [NAME] from the back of the hearing room.

b) [NAME] told the [NAME] that the only reason why vehicles were parked at [NAME] was because that was where [NAME] was based and that the vehicles would have been taken to [NAME] from Shrewsbury for

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15 T/2019/24 maintenance, although he accepted that vehicles were parked at [NAME] on occasions without maintenance being planned.

c) [NAME] stated that whilst the maintenance records were not kept at [NAME], the [NAME] daily defect reports were. [NAME] told the [NAME] that this was because the fitters needed to see them. The [NAME] pointed out that if the vehicles were not normally kept at the site, then only that day’s reports should be at [NAME].

d) [NAME] told the [NAME] that he had visited the Oswestry operating centre on several consecutive Sundays when none of the registered services were operated and did not see any vehicles operated by [NAME] at the site. He had also visited [NAME] on two or three Sundays and found the vehicles parked there. [NAME] took issue with this as no photographs had been produced of the Oswestry operating centre or indeed of [NAME] taken on a Sunday. [NAME] asserted that [NAME] did not include in his report evidence which did not suit [NAME]’ purpose. [NAME] stated that he had photographs of both operating centre taken on the same Sunday (15 July 2018) to illustrate his evidence. He was prepared to return home where his DVSA camera was and print out the relevant photographs. Ultimately, [NAME] did not require him to do so.

e) [NAME] produced the document entitled “Contract for the provision of passenger [NAME] services” (“the agreement”). [NAME]’s response to that was that it was an arrangement which was no different to any situation where a company with work, hires in another company to undertake that work on the latter’s operating licence. [NAME] was where the vehicles were being maintained and he accepted that [NAME] was being used as an operating centre “for a period”. He described the agreement as a temporary solution pending the grant of an operator’s licence to [NAME] Wales. He accepted that his “interpretation” of the law had been incorrect and it looked like [NAME] had been operating illegally “for a period”. He was fully expecting the operator’s licence to be granted by the 28 June 2018 (even though the application was not submitted until 4 June 2018). The letter from [NAME] had delayed the application process and [NAME] would use what had happened “as a learning process”. It was [NAME] operating from [NAME] without an operator’s licence rather [NAME] Wales.

The fuel leak

a) [NAME] denied that he intended to insinuate that the DVSA officers had sabotaged the fuel tank. All that he had said was “someone has sabotaged the [NAME] and it is coincidence that it happened whilst the [NAME] was parked up and the [NAME] was on his break, and coincidence that DVSA staff just happened to be there at the moment ..”. The DVSA officers had misinterpreted his words. Whoever did sabotage the fuel tank contacted the DVSA straightaway. The [NAME] considered that even upon that version, the perception of the DVSA officers would be that [NAME] was insinuating that they had sabotaged the tank.

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16 T/2019/24

[NAME]

a) [NAME] denied that that he had been told by [NAME] that a [NAME] existed and that it was kept at [NAME]. [NAME] had told him that [NAME] had it. [NAME] later confirmed that they did not. [NAME] could not recall [NAME] offering to take him to [NAME] and that he had declined the invitation as it was unnecessary ([NAME] could not recall the invitation either). If such an offer had been made, [NAME] would have accepted as he would have been interested in seeing the unit. In fact, the [NAME] who had undertaken the maintenance investigation in December 2017 had also stated that he would be interested in seeing the unit as he did not do so during his investigation. [NAME] had asked to see the [NAME] and it had never been provided to him. He did accept that [NAME] had planning permission for the repair of vehicles and [NAME] produced photographs of the unit in use.

b) [NAME] asserted that [NAME] did not want to see a [NAME] so that he could put into his report that the company did not have one.

[NAME] and maintenance

a) [NAME] denied that [COMPANY] had been dissolved but rather that it was “alive and kicking” and accused [NAME] of being “selective” in the evidence that he had given. [NAME] asserted that there had been an administrative error on the part of [NAME] and as a result, the company had been dissolved and then reinstated straight away. A separate maintenance agreement with the second entity was therefore not required.

b) The Company House documents were looked at. The present company was incorporated on 22 June 2018 and the original company (which held the maintenance contract) was dissolved on 26 June 2018. The company numbers were different and the registered addresses were different. It followed that they were separate legal entities.

c) [NAME] confirmed that he was concerned about the [NAME] lifts being used at [NAME] because the vehicles were lifted on theirwheels and it was difficult to check the steering by rocking it, which would be unsafe. [NAME] agreed from the back of the hearing room. [NAME] was also concerned that a mobile unit such as that used by [NAME] for carrying tools may not carry all those which were necessary.

Previous maintenance providers

a) [NAME] took issue with [NAME]’ evidence about the number of previous maintenance providers used by [NAME]. The company had in fact had four, not six in the relevant period and changes had been notified on line.

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17 T/2019/24 b) [NAME] told the [NAME] that when he attended the [NAME] fire on 6 February 2017, he was surprised when [COMPANY] attended rather than the specified maintenance provider, [NAME]. [NAME] pointed out that an operator was entitled to have more than one maintenance provider at any one time but accepted that the [NAME] must be informed. As for GK MOT etc, [NAME], son of the owner had been imprisoned for issuing 300 false MOT certificates through the company and [NAME] considered that this was a good reason for [NAME] moving on from that company.

c) [NAME] asserted that [NAME] had included the history of previous maintenance providers in order to discredit him and that he had failed to mention one who had confirmed that whilst the [NAME] account had to be put on hold/stop a number of times, the company did pay its bills.

Wheel loss incident

a) It was [NAME]’s case that it was [NAME], a qualified [NAME] manager who had asked the [NAME] to limp the [NAME] back once she had reported the fault. [NAME] accepted that the [NAME] should not have been on the road and that it was ultimately, his responsibility.

b) However, he took issue with the reference in [NAME]’ report that he had been told by [NAME] that [NAME] had had a meeting with [NAME] on 19 July 2018 following the incident as he was in hospital at the time. He accused [NAME] of lying. [NAME] produced a letter confirming an overnight hospital stay on 18/19 July 2018 and an email from the [NAME] in which she confirmed that she did not have a meeting with [NAME] although she commented in that email that [NAME] should have made it his business to speak to her face to face about “the harrowing episode”.

c) [NAME] questioned the truthfulness of [NAME]’ statement in his report that the wheel loss incident had been reported by an anonymous passer-by. That person must have had the telephone number of [NAME] to be able to report the incident and send him a photograph. He implied that [NAME] was in some way complicit in this incident.

Missing records

a) [NAME] was concerned by [NAME]’s explanation for the absence of records in maintenance files which pre-dated the annual test record found therein and in particular [[NAME]] which [NAME] had claimed had only been in operation since June 2018 when a PG9 had been issued to it on 8 November 2017 when being operated on the licence of [NAME].

b) [NAME] stated that he had no knowledge of the PG9 because he had been away and it had not been his intention to give [NAME] inaccurate information in an attempt to deceive him.

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18 T/2019/24 c) [NAME] confirmed that the [NAME] file for [[NAME]] had not been provided to him. [NAME] asserted that the file had gone to [NAME] and that it been removed by [NAME]. [NAME] commented that this explanation had not previously been given to him.

Prohibition for removing seats from [[NAME]]

a) [NAME] was asked to comment upon the appeal of this prohibition at the hearing. He stated that he went to the Shrewsbury operating centre and met [NAME] and [NAME]. To stack luggage in the area created by the removal of the row of seats was dangerous. When asked what attempts had been made to conceal or change the state of the [NAME], he recalled it was the positioning of the matting (although [NAME] had stated that matting was in place at the time the prohibition was issued). The issue of whether attempts had been made to alter the [NAME] so as to have the prohibition lifted was not resolved.

b) [NAME] asserted that the [NAME] was designed to allow for the removal of the rear row of seats by the provision of quick release mechanisms. [NAME] commented that had the [NAME] been constructed to carry luggage in that area, some sort of luggage restraint would have been provided and that had the seats been designed to be quick release, then he would not expect to see studs sticking out of the floor but rather some kind of rail mechanism.

The integrity of [NAME] where not otherwise mentioned

a) [NAME] put to [NAME] that he had been “groomed” by [NAME].

b) He had deliberately stated in his report that [NAME] had mentioned the figure of 4 vehicles that had been prepared for test by [NAME] when in fact the figure given by [NAME] had been 10. [NAME] looked at his notes of the meeting and informed the [NAME] that [NAME] had in fact given him the registration numbers of 6 vehicles.

Evidence of [NAME] on issues other than the use of [NAME]

a) [NAME] adopted her report. [NAME] told the [NAME] that the reason why [[NAME]] was being used whilst declared as SORN on 28 June 2019 was that he had bought three vehicles and when an employee checked whether the vehicles were taxed, the employee had mistakenly typed in the same registration twice ([[NAME]]) which was taxed. [NAME] thought it a “little harsh” for [NAME] to state in her report that it was clear that the work of that employee was not being checked.

b) As for the void disc, [NAME] did not dispute that it was being used.

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19 T/2019/24 c) As for the VOR sign in a [NAME] parked at [NAME] on 6 July 2018, [NAME] did not authorise this action and he did not know why the sign was in place. The [NAME] pointed out that if a [NAME] is VOR’d, then it should be at its operating centre (which of course, [NAME] ultimately accepted was [NAME]).

Evidence of [NAME]

a) She too adopted her reports. [NAME] queried the number of complaints she recorded as having been made about service 64. [NAME], Director for [NAME] confirmed during the hearing that he had received four or five complaints in around June and July 2018 although complaints were usually made to the local authority.

b) [NAME] stated that the company had not “set out to run rubbish services … and I recognised over the summer that I was very ill, was not as fully in control as I should have been …”. [NAME] paused and then apologised. It is clear from the transcript that [NAME] had become upset as the [NAME] asked him if he wanted some water. [NAME] continued “I was in and out of hospital like a yo-yo so this was not at the forefront of my mind”. The [NAME] then indicated that he could see that [NAME] had become agitated and that he would hear [NAME] to give [NAME] some time.

[NAME]

a) He did not take issue with the evidence of either of the DVSA officers or of [NAME] and confirmed that he had been working as [NAME] manager at [NAME] whilst it was being used an unauthorised operating centre.

b) [NAME] also confirmed that he knew that [NAME] should not be operating from [NAME] but questioned “is it my position to tell him?” He said that he had not wanted to lose his job.

c) His statement in interview that there was no [NAME] for the maintenance of the vehicles was not challenged by [NAME].

[NAME]

a) At the conclusion of [NAME]’s evidence, the [NAME] commented that he could see that [NAME] was feeling better and invited him to give evidence. He told the [NAME] that he had held the [NAME] licence since 2003 with an unblemished record until December 2016. It was then that [NAME] delegated responsibility to [NAME] and that was when vehicles started attracting prohibitions. It was only when [NAME] took back control in June 2018 that the prohibitions stopped. The MOT rate was excellent with 16 passes.

b) The intention was to move to Wales once the Welsh licence had been granted at the end of June 2018 and he would have had more direct control but because of his illness he was not able to do so. He employed

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20 T/2019/24 [NAME] and [NAME]. There were the issues identified by [NAME] and [NAME] had sent forty seven malicious communications about [NAME] to various authorities and [NAME] was having to deal with that as well. He accepted that he “took his eye off the ball”. He was in hospital and “the wheel came off the bus because [NAME] deliberately orchestrated that it would happen”. [NAME] then realised that he needed to stop the business and he applied for short notice cancellation of all the registered services. He gave the drivers more notice than was required by statute and they did not then turn up for work which resulted in the last few days of service without buses being operated although the reliability of services 42 and 44 improved. It was for these reasons that he had decided to surrender the [NAME] licence (the [NAME] interjected to indicate that surrender was not going to be accepted).

c) [NAME] understood the [NAME]’s position. He was seriously considering leaving the industry although in July 2018 he had booked himself on a [NAME] manager refresher course. He had already recognised that he needed to improve his knowledge of the current regulations. There had been no issues with the EAT licence. All the issues related to [COMPANY]. He had offered an undertaking if the [NAME] Wales licence was granted, he would not operate [COMPANY]. If his repute was lost, then he asked for time to find an appropriate person to take his place. He submitted that disqualifying him from holding or obtaining a licence would be a disproportionate response when neither he nor the companies he operated had not been before a public inquiry before. He had committed to refresher training; had offered the surrender of the [NAME] licence (the [NAME] indicated that the licence was going to be revoked); a licence reduction on the other licences. All he wanted to do is move to Wales although he may have gone about it the wrong way.

The [NAME] Commissioner’s decision

53. The [NAME] adjourned for a short while and upon his return, he advised that he had had some very serious IT issues and it was likely that the final written decision would take some time. He had decided to outline the “likely” decision he was to come to so that [NAME] was aware immediately that the [NAME] rejected the attacks made by [NAME] upon his integrity and that where the evidence of [NAME] diverged from that of [NAME], he preferred the evidence of [NAME] whom he commended for remaining calm and measured in the face of some very difficult questioning.

54. The [NAME] was unimpressed with [NAME]’s lack of professionalism. The fact that he had not taken basic legal advice and he had not kept up to date with [NAME] law. He was particularly concerned by [NAME]’s attack on the integrity of [NAME] which was wholly unjustified. [NAME] had suffered from ill health and had had some fundamental disputes with former employees, the issues he had raised went to the issue of trust. So that [NAME] could plan for the future whilst waiting for the written decision, the [NAME] advised him that the application for a licence by [NAME] Wales would be refused

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21 T/2019/24 and the licence of [NAME] would be revoked. The [NAME] was also considering disqualifying [NAME] so that he could reflect and learn and that if he intended to return to the industry, he would be able to demonstrate that he was capable of accepting constructive enquiries from DVSA examiners in the future.

55. In the days following the public inquiry, [NAME] sent to the [NAME] 20 pages of questions he had prepared to cross examine [NAME] at the hearing which he felt he had been unable to put because of feeling unwell.

56. The [NAME] produced his written decision on 27 February 2018. He noted the “remarkable change in tone” of [NAME] after the lunchtime break. In the morning, [NAME] had made substantial challenges to the veracity of the DVSA evidence and made aspersions in respect of the independence and professionalism of the examiners. [NAME]’s tone was one of confrontation and challenge. In the afternoon, [NAME]’s demeanour and tone changed and he became visibly upset, requiring the [NAME] to take evidence out of turn to allow [NAME] to compose himself. Eventually, [NAME] accepted a number of factual issues. The 20 pages of questions that [NAME] had prepared for the cross examination of [NAME] and which he had submitted after the hearing, cause the [NAME] further concern. The questions included allegations of untruthfulness with the words “lie” or “liar” appearing on a number of occasions. It was clear that [NAME] felt that [NAME] was part of a conspiracy against him.

57. The [NAME] observed that [NAME] was not unintelligent and the paperwork he submitted demonstrated a detail of preparation. He was also hard-working and tenacious as illustrated by him continuing to undertake work from his hospital bed on 19 July 2018. Unfortunately, his evidence demonstrated a woeful lack of understanding and appreciation of the PSV licencing regime in Great Britain. Matters were made worse by his failure to seek legal advice. The [NAME] was prepared to accept that [NAME] genuinely believed that he was acting properly when he drafted the agreement which purported to suggest that premises at [NAME] were not an operating centre when they were. The [NAME] had no hesitation in finding that the operating centre was being used by [NAME] without lawful authority. If [NAME] had sought specialist legal advice, he would have learned that the device he utilised to circumvent the need for an operating centre in [NAME] was unlawful. Over the lunchtime adjournment, it was clear that [NAME] had reflected upon the position and accepted that [NAME] had been used as an operating centre and this contributed to [NAME]’s change of demeanour. Neither did [NAME] appear to have sufficient appreciation of the principle of ostensible authority, blaming others for matters which had gone wrong, including those that went to the safety of the travelling public. It was [NAME] who had appointed those he blamed.

58. The [NAME] was also concerned by [NAME]’s lack of appreciation of the role of bus compliance officer and his lack of appreciation of his responsibility in relation to timetable failures. This was illustrated by his comments in his response to [NAME]’ email of 11 July 2018 (see paragraph 10 above). The

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22 T/2019/24 [NAME] expected operators to have undertaken effective research including local [NAME] matters prior to registering a service. The [NAME] accepted the evidence of [NAME].

59. With regard to the challenges made by [NAME] to the evidence of [NAME], in every respect, the [NAME] preferred the evidence of the [NAME] and in particular in relation to:

• what [NAME] had been told about [NAME] having a face to face conversation with [NAME], • where the responsibility lay for legal lettering, • the issue of the prohibition for the removal of seats in a mini-bus particularly as [NAME] had failed to produce any evidence from the manufacturer, • the reasonableness of looking into the number of maintenance contractors used by [NAME] which demonstrated that [NAME] had at times, had a poor relationship with providers (his challenges also illustrated [NAME]’s lack of appreciation of the role of [NAME] examiners); • the discussion about MOT pass rates; • the use of [NAME] and the existence of a [NAME]. [NAME]’s comments about [NAME] not really wanting to see one were unjustified and illustrated [NAME]’s poor judgment and again, his lack of appreciation of the role of DVSA examiners. • The evidence of parking arrangements on Sundays between [NAME].

60. In undertaking the balancing exercise, the [NAME] had regard to [NAME]’s successful bus operations in France and that he has operated successfully in Great Britain. He had also received a “well done” letter when service 64 had been monitored on the second occasion. The most positive feature was [NAME]’s own evidence at the hearing. [NAME] had a “pitifully inadequate understanding of compliant PSV operator licensing within GB” he was not a rogue. The positive features were easily offset by the fact that the [NAME] could not trust [NAME] to run a compliant PSV business as his failings were far-reaching. The [NAME] hire agreement illustrated the fundamental problem with [NAME]. He came across as someone who was very much used to confrontation.

61. The [NAME] could not trust [NAME] going [NAME]. He referred to 2012/034 [NAME] t/a [NAME] and 2006/277 [NAME] which emphasised the importance of trust. He reminded himself of the real commercial advantage in operating without an authorised operating centre in Wales and he repeated paragraph 9 of NT/2013/028 [COMPANY] v [NAME] which describes the impact of unfair competition and referred to 2007/459 [COMPANY] and the importance of making an example of an operator so as to send a warning to the industry as a whole and the stay decision in [COMPANY] which warned of the risk of the licensing system being undermined by poor conduct which was then copied by other operators. He answered the Priority Freight question in the negative

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23 T/2019/24 and the [NAME] question in the affirmative. The [NAME]’s decision to revoke existing licences and to refuse the new application was an obvious one. [NAME]’s repute as a [NAME] manager was lost, his specialist knowledge and competence falling woefully short of the minimum required. It was in his interests and that of the PSV industry generally that he re-qualify as a [NAME] manager and was disqualified from holding or applying for a [NAME] manager position until he had done so. As for the disqualification of [NAME] and [NAME] under s.28 of the [NAME] Act 1985, the company had operated in Wales illegally and the [COMPANY] were neither safe nor compliant. [NAME]’s failure to take advice reflected a level of arrogance that made it necessary to keep him out of the operator licensing system for a period of time. He had caused considerable reputational damage to the PSV industry and he was personally responsible as sole director of all the legal entities before the [NAME]. There had been an abject failure to comply with minimum standards in relation to road safety and basic legal principles. The unwarranted confrontational demeanour to DVSA examiners was unacceptable. Having considered paragraph 100 of the statutory document number 10 “The principles of decision making and the concept of proportionality”, the [NAME] concluded that a period of disqualification of two years from the date of the public inquiry was appropriate (so back dated by over four months). Whilst EAT did not have a regulatory history, its sole director and [NAME] manager had been disqualified. However, it was proportionate to allow some time before revocation of the licence to allow for the assets to be sold or a different director and [NAME] manager to be appointed.

The Appeal

62. At the hearing of these appeals, [NAME] appeared on behalf of all the [NAME] and submitted a detailed skeleton argument for which we were grateful, particularly as the grounds of appeal previously lodged, amounted to nothing more than a discourse extending to thirty eight paragraphs which did not clearly identify grounds of appeal. In addition, the [NAME] had provided copies of the audio recording of the five-hour hearing that had taken place before him so that the Tribunal could judge the change in [NAME]’s tone between the morning and the afternoon of the hearing. We should state at the outset that whilst [NAME] put some serious allegations to and about [NAME], he did not do so in an aggressive or inappropriate manner and we did not discern any notable difference in his tone, save when [NAME] became upset after lunch and appeared to be more accepting of his failings. The hearing generally was well mannered and polite.

63. [NAME]’s first point was that the approach to the issue of unlawful operation of vehicles in Wales by [NAME] and the [NAME] was fundamentally flawed as they did not apply the correct test when considering whether the [NAME] required an operator’s licence. S.12(3A) of the Act provides:

“ … a PSV operator’s licence authorises the holder to use anywhere in Great Britain a [NAME] which has as its operating centre an operating centre specified on the licence”.

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24 T/2019/24

It follows that the holder of an operator’s licence can operate vehicles in any [NAME] area and can, from time to time, park those vehicles at places other than the operating centre. The definition of operating centre is contained in s.82 of the Act and provides:

““operating centre”, in relation to a [NAME], means the base or centre at which the [NAME] is normally kept;”

It was submitted that the test of “operating centre” was [NAME] specific, yet no attempt had been made to track the location of individual vehicles which were being operated from [NAME] to establish where they were being normally kept and that exercise should have included not only the [NAME] and the Oswestry operating centre but also the Shrewsbury operating centre. The question of where individual vehicles had been or were normally kept could not be answered on the basis of the evidence before the [NAME]. The life of each individual [NAME] was not followed.

64. [NAME] submitted that the peak [NAME] requirement for the operation of services was five and that is the number of vehicles being prepared for service on 6th July 2018. The fleet itself consisted of no more than ten vehicles. There were ample opportunities to rotate the vehicles as [NAME] asserted and that assertion needed to be examined. There is nothing wrong in principle for an operator to temporarily relocate a fleet to perform work in a different [NAME] area or even a different EU country.

65. We are satisfied that the [NAME]’s approach to the issue of whether [NAME] was an operating centre is not open to criticism. The evidence that [NAME] was being used as an operating centre by [NAME] was overwhelming and in the circumstances, the detailed analysis of [NAME] movements contended for by [NAME] was not required:

a) The [NAME] was a bus depot developed by [NAME] and painted in the livery of easyCoach. It was where the maintenance of the vehicles being operated on the registered services was being undertaken and it was where the daily [NAME] defect reports were kept; b) The Wrexham Daily Post article published on 18 June 2018, in which [NAME] featured, heralded the move of [NAME]’s operations to the [NAME]. We are satisfied that this was not a mistaken statement and if it had been, we would expect to see some evidence that [NAME] had attempted to rectify it in view of the agreement that had been drafted to give the impression that [NAME] was not an operating centre (see below); c) [NAME] repeatedly monitored the registered services operated by [NAME] and on each occasion that she attended the [NAME], she took photographs of PSV vehicles parked in line against the boundary fence; d) [NAME] did the same as did [NAME] and he gave clear evidence that he had visited the Oswestry operating centre on several consecutive Sundays and did not see any [NAME] vehicles parked there whereas when he passed the [NAME] on several Sundays, vehicles were parked

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25 T/2019/24 there. He had taken photographs on one Sunday at both sites to illustrate his findings. We do not agree with [NAME] that in his evidence, [NAME] “back peddled” from the contents of his report about the number of observations he had made; e) The drivers who had been spoken to by [NAME] all said that they collected their PSV vehicles from [NAME] and dropped them off to the site at the end of their shifts. There was no evidence produced by [NAME] at the hearing to demonstrate that the vehicles were being rotated; f) The engines of all of the vehicles examined on 6 July 2018 were cold; g) The unchallenged account given by [NAME] to [NAME] was that the vehicles did not go back to Shrewsbury as there was “no need”. He also confirmed that [NAME] was being used as an operating centre; h) The agreement entered into by [NAME] with [NAME] Wales was clearly a device utilised in an attempt to circumvent the need for an operator’s licence in Wales until [NAME] Wales had been granted a licence. It was pure fiction, not least because by the agreement, [NAME] was undertaking to operate it’s own registered services on behalf of [NAME] Wales and paying for the privilege to do so. The very existence of the agreement demonstrates that [NAME] was aware that some form of device was needed to give the appearance of lawfulness; i) Even on [NAME]’s own initial explanation to [NAME] on 12 July 2018 and in apparent breach of the above agreement, some of the vehicles had not returned to Shrewsbury within the previous fourteen-day period. There was no evidence produced at the hearing that any of them had returned; j) [NAME] ultimately accepted that he had been operating from [NAME] unlawfully “for a period”. We disagree with [NAME] that this concession was the result of the [NAME] giving [NAME] an incorrect interpretation of the statutory provisions.

We are satisfied that this a clear case of unlawful use of a site as an operating centre and the [NAME] was plainly right to come to that determination.

66. [NAME]’s next point concerned the way in which the public inquiry was conducted. He submitted that the [NAME] inadvertently but substantially inhibited the conduct of [NAME]’s case during his questioning of [NAME]. It was “a bit strong” to describe [NAME]’s questions as an attack on the integrity of the DVSA officer. [NAME] was simply asserting that the report of [NAME] did not “paint the full picture”. It was a misleading report and [NAME] was entitled to suggest that it was either wrong or incomplete. [NAME] whilst intelligent, had no experience of public inquiry procedure and his questioning of [NAME] must be considered in that context. [NAME] had lacked candour in the way he had presented his evidence not least about the use of the [NAME] sites and [NAME] was entitled to question [NAME] on the issues. His questioning was proportionate. However, the [NAME] criticised [NAME]’s cross examination in all respects. [NAME] was further critical of the introduction of “new evidence” from [NAME] during the hearing in relation to the prohibition for the removal of the minibus seats. In introducing evidence in that way, it was difficult for [NAME] to respond to it. The hearing should have been more structured. Further, it was obvious that [NAME]’s state of mind was affected by his

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26 T/2019/24 serious medical condition (which remains unspecified). All in all, [NAME]’s approach to [NAME]’ report and his evidence did not go to the issue of trust.

67. We have already described the procedure adopted by the [NAME] as being rather piecemeal but his role is inquisitorial in nature and it was for him to determine how best to conduct the hearing. In this case, there were in excess of 1700 pages of documentation with significant evidence to be given by two DVSA officers and a bus compliance officer. The [NAME] cannot be criticised for adopting the approach that he did although it transpired that it was not ideal. It did not prevent [NAME] from asking relevant questions nor questions probing the veracity of [NAME]’ report. It became clear at an early stage, that [NAME] was making serious allegations about the conduct of [NAME] and was attacking his truthfulness and integrity and it was perfectly proper for the [NAME] to confirm by interruption, whether that was [NAME]’s intention and by pointing out the seriousness of the allegations he was making. Those interruptions and those informing [NAME] that he was for example, making a statement rather than asking a question, were proper. As for the introduction of evidence from [NAME], it is often the case that an observing senior DVSA officer who has had some input into the case, is asked to confirm or clarify matters. He did not materially contribute to the evidence already given by [NAME]. And in any event, in respect of the minibus prohibition, the onus was on [NAME] to produce some evidence that the manufacturer of the minibus had designed the rear row of seats so that they could be removed. He did not do so.

68. The next ground raised by [NAME] concerned the decision-making process adopted by the [NAME], which he contended, was fundamentally flawed. First of all, the [NAME] announced the revocation of the [NAME] operator’s licence during [NAME]’s submissions without giving himself time to consider the [NAME] questions and without any obvious balancing exercise having been undertaken. The [NAME] then retired for a short period so that he could reflect upon the evidence and then returned to announce his decision without proper reasons, balancing exercise or demonstrating that he had asked himself the relevant questions. The procedure he adopted was procedurally unfair although that may not have been his intention. He was then obliged to confirm the oral decisions that he had made denying himself the opportunity to reflect. [NAME] was further critical of the [NAME]’s balancing exercise then set out in his written decision. He had not mentioned [NAME]’s period of ill health and that there were no prohibitions prior to 2017 and then none that were “S” marked”. There was an evidential basis for saying that [NAME] could be trusted in the future and that he did not deserve to be put out of business. Further, revocation of the operator’s licence of EAT was not inevitable and a period of grace could have been given to find an alternative [NAME] manager.

69. This Tribunal has previously warned [NAME]’s of the danger of delivering oral decisions in serious cases when their reasoning may not be as finely honed as otherwise would be the case if distilled into a written document and that in all such cases, an oral decision must be followed by a full written one. It is

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27 T/2019/24 preferable not to give an oral indication in serious cases involving significant regulatory action save in exceptional circumstances. The difficulties that the [NAME] was having with IT and his desire to put [NAME]’ mind at rest amounted to exceptional circumstances.

70. There will be many cases where after a long hearing, the answers to the relevant questions, the result of the balancing exercise and the resulting outcome will be obvious to the [NAME] without any or any significant period of reflection at the end of a hearing. In this case, the [NAME] had heard evidence over about five-hours and had considered the documentation beforehand. We do not consider the [NAME]’s announcement made prior to retirement that the [NAME] licence would be revoked was either unfair or procedurally wrong. Neither do we consider that the [NAME]’s announcement of his decisions for the benefit of [NAME] and because of the likely delay in publication of his decision, are open to criticism, particularly as he made it clear that his decisions would not take effect until he had published a written decision. This was an obvious case. There were significant failures in maintenance, very significant failures in the operation of [COMPANY], the unlawful use of an operating centre and [NAME] had demonstrated, by virtue of his stance towards [NAME]’ evidence and his unfounded attack on [NAME]’ integrity and truthfulness that he was a man who could not be trusted in the future to co-operate with DVSA officers or be compliant within the regulatory regime without considerable reflection and further education. The [NAME]’s determination that the evidence of [NAME] was preferred over that of [NAME] is not plainly wrong. He was in the best position to assess the credibility and truthfulness of the witnesses. It was inevitable that the operator’s licence of [NAME] would be revoked and the application of [NAME] Wales would be refused. Further, the [NAME]’s approach to EAT was perfectly proper in allowing that company time to sell its assets or to appoint a different director and [NAME] manager. Disqualification of [NAME] and [NAME] was a proportionate response to make in the circumstances for the reasons given by the [NAME].

71. The final ground of appeal concerning the start date of [NAME]’s disqualification succeeds. The [NAME] should not have ordered that the disqualification of [NAME] be backdated to the date of the public inquiry. The effect of that retrospective order was that during the period of delay before the decision was published, [NAME] would have inadvertently and unknowingly been in breach of the order (not yet made) whilst he managed the affairs of [NAME]. That simply cannot be right. In the circumstances, we vary the order of disqualification so that it commenced at 23.59 on 1 April 2019 (the date of revocation of the EAT licence) for a period of eighteen months.

72. The appeals are otherwise dismissed.

Her Honour Judge Beech 16 July 2019