Penalty imposed for significant service failures

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Clayton Jones’ Street Buses operation failed to operate a significant proportion of services punctually, or at all

In early March, Deputy Traffic Commissioner (DTC) for the Welsh Traffic Area Anthony Seculer published a written decision in the case of Clayton Jones t/a Street Buses, following a public inquiry (PI) held on 27 January.

Clayton Jones, trading as, Street Buses, was the holder of a Standard National Passenger Service Vehicle Operator’s Licence authorising eight vehicles. The licence was granted following a public inquiry held on 7 December 2021. On 8 December 2021, the operator agreed to ‘standard undertakings’ on a PSV licence relating to small vehicles and limousines and to an undertaking to provide an independent audit on compliance systems by no later than 13 September 2022.

In a move which Deputy TC Seculer said he found somewhat surprising, the operator appealed against the grant decision. On 18 July 2022 the Upper Tribunal dismissed the appeal stating that there was ‘no merit in this appeal whatsoever. It is now for Mr Jones to comply with the undertaking he has given if he has not already done so.’

On 18 January 2022 the operator was granted 13 registered bus routes to commence operation with effect from 7 February the same year. A week later on 14 February the operator wrote to the Central Licensing Unit in Leeds stating he wished to suspend eight of the registered services, because of the failings of others, something which there is no power in law to do; indeed, the operator conceded that he was aware of that fact.

Also on 14 February, Bus Compliance Officer Sian Thomas commenced routine observations of the newly registered routes in order to check punctuality compliance. The 12 routes checked were failing to operate. A punctuality monitoring exercise was also carried out between 14 February and 6 May 2022. The findings of the 499 observations were a 26.85% punctuality rate, with 68.14% of services failing to operate at all, falling far short of the target punctuality rate of 95%. A call to public inquiry was initiated in December 2022 in respect of failing to operate registered services and not complying with registered timetables. The call-up also noted that the undertaking to provide the audit report had not been met.

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The operator was called up in respect of his repute, financial standing and professional competence as the designated Transport Manager. He was also the holder of a Special Restricted Operator’s Licence permitting two private hire vehicles to provide a local service, granted on 8 September 2022; vehicles have not been operated on this licence and the call-up to public inquiry related solely to the issues on the Standard National Licence.

Preliminary matters

The operator attended the PI on 27 January 2023, along with his maintenance contractor who was released as maintenance was not an issue. Bus Compliance Officer Sian Thomas also attended. The DTC outlined the key issues and the evidence which he had considered in advance of the hearing; he said he was concerned to hear that Mr Jones said he had not received either the public inquiry brief or the Bus Compliance Officer’s report, though it was confirmed that the brief had been sent by recorded delivery to the operator’s address; Mr Jones then stated that he had not signed for any recorded delivery envelopes.

The clerk stated that an electronic brief had also been sent to Mr Jones’ email address on 1 January which Mr Jones denied having received; the DTC was able to refer to a reply from Mr Jones dated 2 January. Mr Jones contended that he had not received the attachments (the brief) with the email, though it was pointed out that his reply had made specific reference to the email attachments, a fact he reluctantly accepted. Mr Jones had also discussed the contents of the Bus Users punctuality exercise with Mrs Thomas and Bus Users Cymru Director Barclay Davies on 10 June 2022.

Mr Jones also complained regarding the call-up being issued shortly before the Christmas break with response dates in mid-January, though the DTC noted that he had specifically requested a hearing before the end of January. DTC Seculer said he was satisfied that Mr Jones had had more than adequate notice.

Evidence

Compliance Officer Sian Thomas attested to the accuracy of her report dated 17 June, and referred to the additional punctuality monitoring carried out after the June report. Between 23 June and 12 October 2022, she found that 84.64% of services failed to operate and the overall punctuality rate was 8.99%.

Mr Jones produced a large file of documents at the hearing, despite having being told that all documents should be submitted in advance; the DTC considered these documents during an extended adjournment in order to ensure that all Mr Jones’ evidence was fully taken into account, and also took into consideration further documents submitted by email on 31 January 2023, after the PI.

The operator did not dispute the results of the bus monitoring exercise, and sought to rely on ‘reasonable excuse,’ identifying five specific areas:

  • Non-delivery of 3 new buses by EVM Ltd;
  • Non-receipt of ticketing machines by Caerphilly C.B.C. Ltd;
  • “Complicity” created by Rhondda Cynon Taff (RCT) Council;
  • Non-receipt of funding from Monmouthshire County Council and the Welsh Government;
  • “Fundamental faults” at the Office of the Traffic Commissioner (OTC).

Prior to the hearing the operator requested the attendance of 11 witnesses including: EVM Limited (re alleged breach of contract); the Welsh Transport Minister; RCT officials (re Road Transport Orders, private hire bus requirements, driver licensing delays); RCT elected members; Monmouthshire County Council (re national funding issues); a Welsh Government official (re funding); and a Caerphilly County Borough Council official (re ticket machines). The DTC believed this would potentially result in a series of ‘trials’ on tangential issues not within the proper jurisdiction of the tribunal which, whilst it may have satisfied Mr Jones’ desire to hold others to account publicly for what he perceives to be their ‘dysfunctionality,’ the DTC said was not legally appropriate, practicable or desirable. In the event, none of the individuals requested attended.

The DTC dealt with the five issues outlined only as far as they were deemed relevant to the issue of ‘reasonable excuse’ under the relevant Act. With regards to EVM Ltd, he said that the issue of non-delivery of three of the six vehicles purchased in August 2021 is a contractual matter that Mr Jones has stated will be subject to civil proceedings involving ‘complex issues relating to Covid-19, Brexit and supply-chain responsibilities.’ However, he stated that from a bus registrations perspective, the duty of the operator is either to source alternative vehicles before the timetable start date or to apply for short-notice cancellation using the prescribed documentation. By the scheduled start date, Mr Jones had done neither.

With regard to ticket machines, the DTC said that again it was a dispute that he cannot be expected to make definitive findings on, but noted that in December 2021, the Transport Officer for Caerphilly C.B.C. was writing to the operator stating that he had not supplied all the information required to allocate the ticketing machines. “Again, I do not find the failure of the operator to have the vehicles ready for the registered service to be a ‘reasonable excuse’ under the Act,” DTC Secular wrote.

Turning to the operator’s complaints regarding RCT Council, the DTC noted that he found it hard to see how a Road Closure Order for a route in Pontypridd had had any relevance to the initial bus monitoring exercise, contrary to claims by Mr Jones. The operator’s second issue regarding RCT CBC related to the administration involved in the issue of Private Hire Licences and the required qualifications for drivers and was deemed to be of no relevance to the failure to operate the registered PSV services. On a third point, the DTC said that Mr Jones frustration at the rules relating to the use of the Pontypridd bus station and his opinion as to the Local Authority’s “dysfunctionality” did not form a ‘reasonable excuse.’

With regards to Monmouthshire County Council and its delegated responsibility to allocate bus funding in South East Wales, the DTC said it was already clear from the letter sent to the operator that the Bus Funding Management Group considered that the operator failed to meet the published criteria for funding and that he should have carried out due diligence as to eligibility to public funding before registering the services. The decision on funding was not publicised until July 2022 so had no bearing on the monitoring exercise carried out between February and May. The operator’s action to cancel all services after the July announcement was a commercial decision and not a ‘reasonable excuse,’ he said.

Turning to the allegations about the Office of the Traffic Commissioner, in which Mr Jones commented on every aspect of the call-up papers, the DTC said the sole purpose seemed to be to allege “dysfunctionality” in another public body. “It is unfortunate that in using standard public inquiry templates,” DTC Seculer said, “some of the statutory references (e.g. to the Goods Vehicle Act) are incorrect and Mr Jones makes great play of the mistake in Bus Compliance Officer Sian Thomas being named Sian Williams. Where errors have been identified prior to the hearing, corrections have been made (e.g a new TM call-up letter issued) but essentially, the operator has not been misled and, none of the errors are material to “reasonable excuse” or any other issues in the inquiry. Whilst Mr Jones complains of the staff living in a “parallel world” in sending out documents immediately prior to Christmas and requesting responses by 13 January, some of the pressures were created by meeting his request to have the hearing listed before the end of January rather than in February, as originally planned.” Again, he determined that the reasons did not amount to a ‘reasonable excuse.’

“I also have to have regard to the purpose of the legislation regarding bus punctuality. It is to deal with unforeseen events which prevent operators providing a registered service on a particular route at a particular time, not to deal with contractual, financial or other disputes which make an operator decide to “suspend” services across the board,” the DTC continued, adding that the application to change the registered services failed to meet the criteria or to meet the procedural requirements.

In relation to the audit undertaking, of which none was produced, the operator sought to lay blame at the door of the recently-deceased Anthony Burnell, though the DTC noted that Mr Burnell would not have been eligible, or qualified, to carry out an independent audit, and who passed away a number of months before the report was due. Mr Jones stated that “his main record book known as the black book has never been recovered” but the TC reminded him that an operator should always have access to such documentation.

Mr Jones added that his failure to produce the audit was based on his decision to cease services following the announcement regarding national funding for bus operators. This was not accepted as a reasonable excuse by the DTC.

Decision

Considering Mr Jones’ repute as Operator and Transport Manager, the DTC found that the operator’s reasons for not providing the registered service did not amount to a ‘reasonable excuse’ though accepted that there was a genuine intent to run the services. He accepted that reasons such as the non-delivery of the newly-purchased buses and the problems associated with the ticketing machines did amount to mitigating circumstances. He added that the actions and communications from Mr Jones paid insufficient regards to the bus users in the local community.

He determined that although loss of good repute would be disproportionate, the operator still needs to demonstrate that he can work effectively within a regulated industry, to ensure that formal applications are made on the prescribed forms within correct timescales and to make communications timely, relevant and manageable.

“I consider it appropriate and proportionate to reduce the authorisation on the operator’s Standard Licence to one vehicle,” DTC Seculer concluded, imposing a financial penalty ‘in order to reflect the failure to the local community and to focus the operator’s mind on future compliance,’ chosing a sum at the lower end of the scale and imposing a penalty of £400 for each of the eight authorised vehicles, a total of £3200.

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