Maintenance and operational failings

Significant failings and a failure to heed previous warnings meant little hope for an operator at its latest public inquiry, and O-licence revocation was all but inevitable

An operator has been disqualified by Traffic Commissioner Dorrington in the West Midlands Traffic Area following extensive failings which led to the loss of repute of both of its transport managers. Travel Express Ltd (PD1140735) and its Transport Managers Mr Kishan Chumber & Nirmal Johal were called to public inquiry (PI) on 10 April 2024.

The operator was granted a standard national public service vehicle operator’s licence in March 2016 and at the time of the PI had a licence authorisation of 15 vehicles. Its sole director was Mr Kishan Chumber, and there were two transport managers specified on the licence; Mr Chumber and Mr Johal.

As a result of an unsatisfactory Maintenance Investigation Visit Report (MIVR) by the DVSA on 21 October 2023 and an unsatisfactory Bus Operator Account Management (BOAM) report dated 1 December 2023 a decision was made to call the operator to a PI.

PI history

This was the operator’s fourth public inquiry. The first two were held on 2 March 2016 and 10 November 2017. The third was held on 20 November 2019 before the then Traffic Commissioner (TC) Nick Denton where it was found as fact that there had been poor maintenance and that 51% of its local registered bus services had not been operated on time.

At that time, TC Denton said that in some ways he regretted having re-instated Mr Chumber’s good repute at the beginning of 2019, and that while Mr Chumber had fulfilled the requirement that he retake and pass the transport manager CPC exam, and there had been a reduced rate of three prohibitions, the restoration of his repute was followed by seven roadworthiness prohibitions in 2019 and a very poor MOT pass rate. The same timetabling incompetence which had caused the presiding TC to ban Mr Chumber in 2016 from any involvement in timetabling as also found to have re-emerged since that ban was lifted in January 2019, and there was found to be some evidence that vehicles had been deliberately run a few minutes ahead of rivals regardless of the timetable.

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TC Denton suggested that Mr Chumber had slipped back to his ‘old slipshod methods of management, timetabling and operating.’ He did however accept that on the whole he had good intentions and had not set out deliberately to fail to comply with vehicle roadworthiness requirements.

In setting out conditions to allow the licence to continue and for Mr Chumber to retain his good repute, TC Denton required him to step back from some of the responsibilities, which he said were too much for him to cope with given the fleet size.

April 2024 PI

The previous PI was the starting point for this PI. Appearing for the operator was the sole director and transport manager Mr Chumber together with the second transport manager Mr Johal, both represented by specialist road transport solicitor Mr M Oliver. Witness for the DVSA was Austin Jones who was the vehicle examiner who undertook the MIVR and also completed the BOAM report.

After considering the evidence, TC Dorrington made a number of findings of fact regarding maintenance and service operation.

The allegations made by vehicle examiner Jones were found to be proven. In October 2023 a tyre worn below the legal limit of 1mm was found on an outer nearside wheel during a check, which the TC concluded had been ‘a longer-standing defect.’ The operator accepted that the vehicle had been in service with the defect present, which should have been picked up on a walk-round inspection by a driver.

The operator was also criticised in the MIVR for having an ineffective system for walk-round checks undertaken by drivers.

At the time of the MIVR, and since the public inquiry in November 2019, there had been a 16.13% final fail rate for MOT tests, over double the national average of 7.28%. The TC noted that not only did the operator fail to reach the required standard despite criticism at the previous public inquiry for its MOT failure rate, but it also failed to do that despite having an industry standard IRTEC qualified mechanic.

The specific undertaking relating to roller road brake testing for all vehicles every 12 weeks given to TC Denton at the public inquiry in 2019 was found not to have been fulfilled. Vehicles presented for MOT had been found to have multiple failure items present, including with brakes, headlamp aim, accessibility features, direction indicators and hazard warning lamps.

“It was the nature of the prohibition imposed on 21 October 2023 for the worn tyre that gave me serious concern,” said TC Dorrington. “Not only did I consider it to be a road safety critical defect, I could not, from the evidence before me, be satisfied that Mr Chumber was checking tyres in the manner he claimed in his oral evidence and I could not be satisfied that drivers were doing any, or any effective, walk round check of the vehicle before it went into service on a public road. Those adverse findings go directly to the issue of trust and good repute.”

Not effective

It was concluded that Mr Chumber, as a transport manager, was not exercising effective and continuous management of the transport undertaking. As the sole director, it was also clear that he was not effective in ensuring that the general undertakings on the operator’s licence that related to maintenance were being fulfilled, the TC found, including in regards to keeping vehicles in a fit and serviceable condition.

In addition, it was found that Mr Johal was not exercising effective and continuous management of the undertaking. “Were he doing that then the adverse findings in the MIVR would not have been present,” TC Dorrington found.

A supplemental maintenance report from vehicle examiner Jones dated 8 April 2024 showed a significant improvement compared to what he had found at the MIVR on 21 October 2023, it was recorded. There had been four roadside encounters with no prohibitions and the last six presentations for MOT had resulted in two initial fails and four passes. Documents appeared to be filled out correctly too and roller road brake tests had been completed on a 12-weekly basis in accordance with the undertaking recorded on the operator’s licence.

Mr Chumber said that he was now thoroughly checking PMI sheets against driver defect reporting sheets to ensure drivers were doing a proper walk-round inspection and that vehicles are given a thorough PMI.

However, the TC noted inconsistencies between what was recorded on PMIs and driver defect checks, including an example of a bus fresh from PMI being found to have a defective wiper blade by a driver.

“It is a huge leap to go from the PMI sheet recording nothing being wrong with the wipers to a wiper blade being reported as falling apart by the driver. How, if Mr Chumber was checking the PMI sheets and driver defect reporting sheets properly, was this apparent significant inconsistency not found and investigated,” TM Dorrington asked. Mr Chumber failed to give a persuasive explanation.

New staff

The operator said it had employed an additional member of staff to assist the in-house mechanics, which was why the later supplemental report from vehicle examiner Austin Jones showed such improvements; the TC gave credit for that and for the improvements in compliance detailed in the supplemental report from the vehicle examiner.

Bus performance

Turning to the issue of bus service operation, and looking back at the 2019 PI when TC Denton found that 51% of all registered services were not operating on time (within the specified tolerances) with reasonable excuse, TC Dorrington saw that the company had received a £6,000 penalty as a warning that it was expected to improve its punctuality.

The TC said that the BOAM report prepared by Mr Jones was one of the most detailed and well planned that he seen for a long time. Mr Jones looked at 207 journeys in 11 geographical areas across the operator’s registered bus service network on 17 days over a two month period from 5 August until 5 October 2023, including data for services over the school summer holiday period as well as capturing data outside of the summer holiday period.

None of the journeys looked at were registered as ‘frequent’ services, and all were registered to run at specific stated times. The results of Mr Jones’ investigation were, TC Dorrington said, ‘shocking.’ Half of the 207 journeys observed were not on time. 61 of the 207 journeys failed to operate at all (29.4%). Of the 146 journeys that did operate, 32 departed early (21.9%) and nine were late (6.16%).

In total, 93 out of 207 journeys observed were either no-shows or early departures, which equates to 45% of the total number observed. “The travelling members of the public clearly suffered significant inconvenience, disruption and frustration by this operator over the course of this bus monitoring exercise,” the TC concluded.

At the time of the bus monitoring exercise the operator needed 11 vehicles and 11 drivers to meet its peak vehicle requirement. It only had available 11 drivers, and therefore lacked any resilience to deal with periods of holiday, sickness, or staff leaving. Asking whether there was a reasonable excuse for all or any of the non-compliant services, the TC said that the answer was ‘no’ and certainly not enough to materially affect the penalty under section 155 of the Transport Act 2000.

‘Shocking’

The TC added that there was no doubt Traffic Commissioner Denton will have explained to the operator at the previous PI that it must have sufficient drivers available. He also took into account by way of context the ‘quite shocking’ fact that the operator’s timetables had not been changed in any way since the public inquiry in November 2019. No attempt has been made to meet the ever-changing traffic and road network problems along all of its registered routes, he said.

Furthermore, no persuasive answer or explanation was given for the failure. On the issue of using short notice applications to vary or cancel a service both Mr Chumber and Mr Johal claimed they were not aware of such a provision, something which TC Dorrington rejected ‘without hesitation.’ “Both gentlemen are experienced in the PSV industry,” he said, “and it is common knowledge for operators of registered services that you can make a short notice application to vary/cancel a service.”

The TC also rejected the argument that there had been a shortage of drivers, an argument also used at the previous PI. Whilst it was a recognised industry problem that there was a shortage of PSV drivers, operators were expected to be agile and adapt, the TC said, suggesting that steps such as paying for non-driving staff to take a PSV driving test so that they could be called upon when required as back up drivers might have alleviated the problem.

If all else failed, “the operator should have varied or cancelled its affected timetable(s) by short notice application if necessary so that the travelling members of the public are put front and centre. That simply did not happen here,” the TC said.

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

Specific concern

The TC noted that one area of significant concern was the 32 instances of early departures, especially given that if there were only 11 drivers, either all drivers had more than one instance of departing early recorded against them or a few drivers had a lot of early departures recorded against them, but he did not see tangible evidence of robust disciplinary action being taken against repeat offenders.

The operator’s answer was that only one driver, who had only been with the operator for a few months, was dismissed. Mr Johal said that a ‘commercial decision’ had been made not to deal robustly with offending drivers because the operator was fearful that drivers would leave; the operator knew there was a problem with early departures and yet still allowed, caused or permitted that problem to persist at the expense of the travelling members of the public.

“That is totally unacceptable and a matter that goes to directly to the issues of trust and good repute,” the TC said.

Closing submissions

In his closing submissions, the operator’s solicitor Mr Oliver said he had conducted a recent exercise which revealed that the overall punctuality was now showing 22.4% of services were not on time; that equated to only 77.6% of services running on time, the TC pointed out.

The TC was asked to consider that this was an improvement for which credit should be given, but suggested instead that the evidence showed the operator had gone from being ‘hopelessly non-compliant’ to merely being ‘very non-compliant’ and as such he was unable to give meaningful credit for that.

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

Looking at the evidence before him, the TC summarised that since the last public inquiry in November 2019 two serious issues relating to maintenance identified then were found to have returned, whilst the specific undertaking given at the last public inquiry relating to roller road brake testing was breached. Punctuality remained extremely poor. No effective management of timetable planning, monitoring or management had been undertaken by Mr Johal, who had specifically been brought in to cover those areas of compliance.

Credit was given to the positives identified and for improvements made to bus punctuality but given the weight of the negatives, it was ‘very clear’ said TC Dorrington that the balance only tips in one direction, in favour of the negatives.

Asking how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime, TC Dorrington said he fully agreed with what Traffic Commissioner Denton had said at the previous PI, adding: “I go one step further and conclude that [Mr Chumber] does not have it in him to be a compliant operator. I simply do not trust Mr Chumber and I certainly do not trust him to be compliant in the future. His track record speaks for itself and I am satisfied that it is more likely than not that he would, again, go back to his non-compliant manner of operating.”

He also considered the failure of Mr Johal to ensure compliance across the operator’s registered bus services meant that there was ‘absolutely zero trust’ left with the operator.

Moving on to ask whether the conduct was such that the operator ought to be put out of business, TC Dorrington answered in the affirmative. The operator has lost its good repute, he found, leading to a mandatory revocation of its operator’s licence.

No rehabilitation

Mr Chumber’s good repute as transport manager after the last PI was left in a very precarious position, and he had continued to be ineffective as a transport manager for both maintenance compliance and for bus punctuality compliance. The TC said he was satisfied that Mr Chumber had lost his good repute, and as a result he was disqualified as a transport manager. It was deemed proportionate to disqualify him as a transport manager for four years, until 2359hrs on 3 May 2028. “Despite giving this case a lot of thought I cannot think of any rehabilitation measure for Mr Chumber,” the TC added.

Mr Johal exhibited similar failings, but this was his first public inquiry. The TC determined that it was proportionate to disqualify him as a transport manager for three years ‘to reflect not only the gravity of his failings but also the inconvenience, misery and frustration he will have materially contributed to have caused to the travelling members of the public.’ Mr Johal’s period of disqualification ends at 2359hrs on 3 May 2027, and like Mr Chumber, the TC said he could not think of any rehabilitation measure for Mr Johal.

Since the operator was now no longer professionally competent, it was therefore a mandatory requirement that its operator’s licence be revoked. The TC determined that this would be from 2359hrs on Sunday 16 June, allowing time for the orderly winding down of the transport operation and for an alternate provider to be made available for any home to school work that the operator may be involved in. As a result of the decision, all bus services registered by the operator will be cancelled with effect from the same date.

A period of grace was granted to cover the loss of good repute and the loss of professional competence until 2359 hours on 16 June.

Concluding, the TC said he had no hesitation in determining that this operator must pay the maximum financial penalty of £550 for each vehicle authorised on its operator’s licence, a total of £8,250, before 2359hrs on 16 June.

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