An operator of school minibuses which attracted the eyes of the Traffic Commissioners thanks to an extremely poor MOT pass rate has shown signs of improvements, Traffic Commissioner Gerallt Evans found
In November, Gerallt Evans, Traffic Commissioner for the North West of England, published his decision in the case of Buzz2Go Minibuses Ltd and associated Transport Manager Carl Mann. The company was called to public inquiry followed two unsatisfactory DVSA assessments.
The operator, Buzz2go Minibuses Ltd holds a standard national public service vehicle operator’s licence (PC2042979) authorising the use of seven vehicles. It was issued on 19 April 2021. Its directors are Nigel Rogers, Kay Colvin and Carl Mann; Mr Mann is also the Transport Manager.
On 19 August 2022, a DVSA Vehicle Examiner undertook a maintenance inspection visit, and the subsequent report (MIVR) detailed a number of shortcomings including stretched inspection frequencies, with 53% overdue; a VOR system that was ineffectively managed; an annual test history which indicated poor management control and poor maintenance standards; no pre-MOT inspection of vehicles; and that improvements were required to wheel security systems.
The Operator responded at the time with assurances that it would address the shortcomings, including that inspections would be arranged in closer proximity to annual test to improve its pass rate.
However, the MOT pass rate deteriorated further after the DVSA visit. This prompted a further DVSA desk-based assessment (DBA) in June 2023. That assessment again resulted in unsatisfactory findings and highlighted continuing issues with the annual test history which were an indicator of poor management control and/or poor maintenance standards. The operator had an 80% failure rate since the MIVR in August 2022; five vehicles had been presented for annual test and only one had passed.
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Over the life of the licence from April 2021 to 1 August 2023 the initial failure rate for the operator’s vehicles at annual test was 90%, well above the national average of 11%, and a figure which Traffic Commissioner (TC) Evans called ‘very poor.’
In April 2023, the operator applied to increase the number of vehicles authorised on the licence from seven to 10 vehicles. Due to the concerns about its existing compliance, the application was also referred for consideration at public inquiry alongside the question of whether regulatory action was needed on the existing licence. This was the first public inquiry (PI) for the operator and directors.
The operator was called up to public inquiry by letter dated in August 2023, which gave notice of the issues of concern to be considered at the PI and that it would additionally consider the variation application. Transport Manager Mann was called up by letter at the same time, which gave notice that his good repute and professional competence would be considered.
The inquiry
The PI was initially scheduled for 26 September 2023 but was adjourned as the DVSA vehicle examiner had not had the opportunity to consider the operator’s up to date evidence as a result of confusion over a new process for serving such evidence. The operator was represented in person by all three of its directors, including Carl Mann as Transport Manager.
In advance of the inquiry, the TC was provided with a report dated 26 September 2023 from Vehicle Examiner (VE) Snelson on the evidence that the operator had provided in readiness for the public inquiry. VE Snelson noted that some improvements had been made, but that there were still some minor issues with recording of preventative maintenance inspections. He also noted that the driver defect books for two of the vehicles had no defects recorded over 15 months.
VE Snelson reported that his greatest concern was the continuing high MOT failure rate, which he put at 57% over the 12 months since August 2022, a figure well above the national average of 7%. Two of the three vehicles presented for annual test in 2023 had failed. VE Snelson noted that both had been used for some days in between their most recent inspection and presentation for annual test; it appeared to him that the operator had not acted on the shortcoming and was failing to arrange inspections immediately prior to MOT.
TC Evans was also provided with written submissions by the operator’s legal representative Mr Jones, supported by witness statements from Mr Rogers and Mr Mann and a recent audit by Transport Consultant Grahame Robinson.
In giving further evidence at the hearing, Mr Mann admitted to a lack of experience and said this had resulted in him failing to appreciate the significance of the MOT failure rate. He said he had learnt much from the experience of dealing with the DVSA and the public inquiry process as well as the assistance now being provided by Transport Consultant Mr Robinson.
The TC asked if they had considered whether the business would be better served by investment in newer replacement vehicles than acquiring additional vehicles. Mr Mann said his life would be made easier if he had newer vehicles, and Mr Rogers accepted that they should have acted sooner to replace the maintenance provider. He also pointed to the transition from operating two vehicles to seven vehicles as being a contributory factor in the issues that arose. He then also indicated that he had no immediate plans to increase the number of vehicles and would concentrate on improving the condition of the existing fleet.
The submissions broadly conceded the findings of the Vehicle Examiner’s two reports and that of the desk-based assessment. It was accepted that the failings were sufficiently serious to fall into the category of ‘moderate’ for consideration of regulatory action against the operator, and that the failings had tarnished Mr Mann’s repute as Transport Manager.
In mitigation, it was argued that the operator had, albeit belatedly, addressed the issue with its MOT pass rates by changing its maintenance provider in August 2023. The early indications were that this had started to bear fruit in terms of improved pass rates at annual test.
It was therefore argued on behalf of the operator that its licence should not be revoked; in addition to the improvements claimed, the TC was also asked to consider the difficulties that would be caused to the local authority if it was unable to use the operator’s services for school transport.
TC’s findings
Given that the findings of the DVSA reports had been conceded by the operator and TM Mann, TC Evans was able to make the findings of fact that: the operator had failed to fulfil the statement made when applying for the licence that its vehicles would be inspected at the 10-week interval it promised they would be; the operator had not honoured the undertaking it gave at the grant of the licence to keep its vehicles fit and serviceable; and that those matters also combined to call into question the good repute of the operator and of its Transport Manager Carl Mann.
TC Evans was satisfied that financial standing had been demonstrated both for the existing licence and for the purposes of the variation application, had it been progressed. Having reached his findings, and considered the positive and negative features of the case, alongside the representations made by the operator’s legal representative who argued that he should consider the matters fell within the bracket of ‘moderate’ for the purposes of determining the appropriate outcome, the TC was able to find a number of positive features.
He noted that there did now appear to be appropriate systems and procedures in place to prevent operator licence failings, and that some changes had been made, with tangible evidence provided to support the assertions, to ensure compliance. He also noted that the operator co-operated with enforcement investigation, and that this was its first time at a PI.
However, he balanced those with a number of negative features. He found that the persistently high MOT failure rate raised concern that there was a risk to road safety, which he said was especially troubling for a school transport operator.
He also found that until the months prior to the PI, there had been ineffective management control and insufficient systems and procedures in place to prevent operator licence compliance failings. The persistently low average first time pass rate at MOT was of significant concern.
The TC also noted that he had taken account of the fact that these shortcomings were first raised with the operator at the time of the DVSA visit in August 2022 and that, whilst some changes had been made in the year that has passed since that initial visit, they had not yet been demonstrated to be swift or effective enough.
Having considered all of the factors, TC Evans concluded that the matter fell into the category of ‘moderate to serious.’ Asking the question ‘how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime?’ TC Evans said he had some confidence that the operator and its Transport Manager were capable of operating compliantly in future, but that he remained concerned at the slow pace of change to date.
To ensure that the operator clearly understood the expectation of compliance going forward and the urgency with which the outstanding issues must be addressed, he considered that regulatory action was both appropriate and necessary, in the form of a time limited suspension of the licence.
“I have taken note of the submissions made as regards the inconvenience any decision I make may have on the local authority. I make it clear that I consider such submissions to be of limited relevance to my ultimate decision,” he said. “The paramount concern that I must address is about road safety and the safety of the passengers and that outweighs any inconvenience to the local authority.
“That said, I consider that I can reach a balance between the action I need to take in the interests of future compliance in this case and the interests of the local authorities and those using the operator’s services.
“Accordingly, I determine that the proportionate course of action is to suspend the licence for a period of 14 days that will run concurrently with the school Christmas holiday period.”
He went on to note that Mr Mann had properly conceded that his good repute as Transport Manager had been tarnished by the case, adding that he made the same criticism of him as of the company in relation to the slow pace of change. However, he balanced this with the fact that Mr Mann had played his part in effecting some changes.
“Having read his witness statement and heard from him today, I consider that he could become an effective Transport Manager, especially if he takes the opportunity to refresh his professional competence training,” concluded TC Evans. “I also note the support to be provided to him in the next few months by an experienced Transport Consultant. For that reason, I do not find that Mr Mann’s good repute is lost but I record it is tarnished. I also record a formal warning.”
The operator conceded during the hearing that it did not wish to pursue the variation application, and as a result the TC made no determination on that and recorded the application as withdrawn. He made clear that it was unlikely that the application would have been granted had it been pursued: “Whilst I acknowledge the changes made by the operator and the progress towards full compliance, it is also evident that much remains to be done,” he said, “especially in terms of delivering a tangible improvement to the initial pass rate at annual test to a figure that is much closer to the national average. Until that has been shown, I consider it would have been premature to make a finding that the operator could be trusted to operate a larger number of vehicles in a compliant manner.”
He added that if the operator can demonstrate it has achieved and sustained a marked improvement in its annual test pass rates over a prolonged period as well as avoiding other indicators of non-compliance such as prohibitions, the pathway will be open to it to make a renewed application for a variation. Although he chose not to prevent any earlier application, the TC observed that it will be 12 months in July 2024 from the date the maintenance provider was changed with the intention of improving MOT performance, and that an application to vary made after July 2024, and supported by an improvement in pass rates and a satisfactory audit, would be likely to inspire more confidence from the Traffic Commissioner than another potentially premature application.
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