‘Serious shortcomings’

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BK63 ZSP was one of a number of relatively unusual King Long and BMC vehicles in the fleet. DUNCAN COGHLAN

Bain’s Coaches of Oldmeldrum has lost its O-licence following significant failures in record-keeping and maintenance

In August, Traffic Commissioner (TC) for Scotland Claire Gilmore revoked the operator’s licence of Oldmeldrum-based Bain’s Coaches along with the related licence of ABC (Methlick) Ltd, and disqualified licence holder Douglas Bain.

Douglas Bain traded as a sole trader under the Bain’s Coaches name and had held a standard international operator’s licence with authorisation for 12 vehicles since 1994. He was also the sole director of ABC (Methlick) Limited which also held a standard international operator licence since October 1990 and with authorisation for six vehicles. Mr Bain was the nominated transport manager for both licences.

The Traffic Commissioner’s office received reports from DVSA Traffic Examiner (TE) Jill Jarvis and from DVSA Vehicle Examiner (VE) Henry Mackie alleging various infringements on the part of the operator’s drivers that had not been identified by the company. It was also alleged that there were ‘serious shortcomings’ in the compliance systems for drivers’ hours and maintenance used by the operator.

Mr Bain had attended a preliminary hearing and a public inquiry in 2019, following which the Deputy Traffic Commissioner issued a warning. In light of the recent evidence, Mr Bain t/a Bain’s Coaches was called to public inquiry (PI), and given the nature of the concerns and his sole directorship and role as transport manager of ABC (Methlick) Ltd, the TC directed that that operator also be called to inquiry.

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The public inquiry took place on 6 April 2023 with Mr Bain in attendance and represented by Mr O’Leary, counsel. TE Jarvis and VE Mackie gave evidence remotely via video link.

Documentation was produced by the operator in advance of the inquiry. An invoice in relation to a booking made for Mr Bain on a CPC refresher course in May 2023 was also lodged on the day of the inquiry, though the TC noted that as at the date of her decision, no certificate of attendance has been provided.

Evidence

TE Jarvis explained that she had carried out an investigation into the operator’s systems after a roadside stop had highlighted several instances of his vehicles being driven without driver digital tachograph cards inserted. She advised that DVSA had also received intelligence highlighting concerns around the operator’s transport operation.

As part of her investigation, she had requested drivers’ hours data from the operator; despite repeated requests, the required documentation was not provided. Piecemeal documentation had been received late, she said, but what was provided was incomplete and out of date.

Following Mr Bain’s initial failure to provide documentation, TE Jarvis made an unannounced visit to his operating centre. No one was able to provide her with the data she required and she believed that neither Mr Bain, nor anyone working for him, knew how to use the computer software, let alone carry out any analysis. No analysis of driver hours information was being undertaken and it was clear that it had not been for a significant period, she concluded. Mr Bain had allowed her access to the software during her visit and TE Jarvis had tried to download data for herself. However, she found there to be no data of any substance for her to view on the system.

TE Jarvis said that during her visit she was made aware by a member of Mr Bain’s staff that they were having problems with the software. However, despite the repeated requests for data that had been made, Mr Bain had not brought that to her attention.

Another pair of King Long coaches in the fleet are XMQ6129Y BX14 KPF and tri-axle XMQ6130Y BX14 KRG, both new in 2014. The latter was new to Tate’s Travel and passed to Bakers of Biddulph and Globe of Barnsley before entering service with Bain’s. DUNCAN COGHLAN

Drivers’ hours offences

The small amount of data that TE Jarvis was able to gather during her investigation disclosed that drivers’ hours offences were being committed by the operator’s drivers. When asked, the operator was unable to specify which vehicles were being used for service runs to try and ascertain how much driving off card was taking place. TE Jarvis advised that she had looked at the documents produced for inquiry and noted that some of the information she had requested during her investigation, such as driver CPC records, had been provided, and could not understand why it had not been made available to her during the investigation. She advised that Mr Bain had told her that he was going to retire but understood that he had changed his mind since her investigation.

Vehicle Examiner Mackie advised that he had carried out a maintenance investigation in relation to Bain’s Coaches between September and November 2022. He had also carried out an investigation in 2019, the outcome of which had also been unsatisfactory.

On this occasion, in September 2022, he visited the operating centre unannounced and spoke to Mr Bain, who advised that the assistant transport manager was out on a job and therefore the vehicle records were not available for inspection.

VE Mackie attended again unannounced on 3 October, and the assistant transport manager was present. He stated that Mr Bain had instructed the transport manager not to allow access to the files, following which he left, having agreed to come back on 11 November whereupon he examined 3 vehicles, reviewed the vehicle files and completed the investigation report.

Prohibition

A prohibition was issued in relation to one of the operator’s vehicles during the fleet check. VE Mackie noted that the maintenance documentation was not up to date or completed properly. Inspections were being carried out late, the MOT failure rate was twice the national average and safety critical defects were being identified at test, which indicated the preventative maintenance regime was poor. He was concerned that brake testing was not being carried out as it should be, as many of the inspection records had no record of brake testing. The operator’s roller brake tester was inoperative and was also out of calibration, as was the operator’s wheel torque wrench.

VE Mackie advised that several of the deficiencies found in 2022 had been highlighted during his earlier investigation, and of particular significance were the issues of record keeping and brake testing. He said it was of great concern that he had been prevented from accessing the vehicle files and suspected that remedial action was being taken between his visits which in turn led him to believe that the operator knew things were not as they should be yet had done nothing until the DVSA visit. He also noted that when he eventually was given access to the documentation, that many of the safety inspections appeared to have been completed retrospectively.

Having looked at a sample of the PMIs lodged for the inquiry, the VE found that they appeared generally OK, with some minor issues. However, brake testing was still not being recorded properly despite all the advice given during the two previous inspections, and it was still not possible to tell if the vehicles were undergoing any meaningful brake testing.

A recent addition to the Bain’s fleet was this Neoplan Starliner. DUNCAN COGHLAN

Long history

Mr Bain stated that he had been operator and transport manager since 1975. The operator carried out a mixture of work including private hire, service work and school contracts; ABC (Methlick) did similar work. He explained that his wife had passed away in June 2020 and prior to that she had been dealing with the downloading and checking driver hours. His daughter also helped out for a time.

He stated he had hired an individual called Murray Cowie as an assistant transport manager in June 2020 after his wife’s death. Mr Cowie had worked for him previously and he had put him through his CPC. Mr Cowie had stayed for around a year but Mr Bain said he was not happy with his performance. When Mr Cowie left, he hired Billy Davidson to help out, and oversee drivers’ hours and walk-around checks.

Frustration

Mr Bain said that he became frustrated with the emails going back and forward with TE Jarvis and had largely stopped engaging. He went to Stonebridge which had supplied him with the system for recording and analysing drivers’ hours to ask for help. He denied trying to obstruct TE Jarvis in carrying out her investigation. He admitted that he had told examiner Jarvis he was thinking of retiring but had since changed his mind, and denied that he had done so in an attempt to evade regulatory action.

Mr Bain admitted that no proper downloading or analysis of drivers’ hours had been done for some time. Things had slipped and he was ‘too busy’ he said. He explained that following the last maintenance investigation he had put in new roller brake tester, but it was broken and he was waiting for parts being delivered, and vehicles were having their brakes tested in a layby along the road from the operating centre. Mr Bain told the TC he did not know what the guide to maintaining roadworthiness said about brake testing and could not explain how ‘locked wheel’ readings were being obtained during such road testing as his more recent PMIs indicated.

Although Mr Bain said he had been booked onto a CPC refresher course, he said he had not done any transport manager refresher training before because he didn’t see the need for it. He had not read the senior traffic commissioner’s guidance but did accept that he should have. He added that he was ‘thinking about’ entering into a contract with Stoneridge to download and analyse his drivers’ hours.

The operator denied that he had been obstructive with DVSA and acknowledged that the Deputy Traffic Commissioner had issued him with a warning in 2019 for failing to co-operate with police in dealing with anti-social behaviour on ‘party’ buses which he was operating, but denied that his behaviour this time was obstructive. VE Mackie should have asked him, not his employee, for documents when he visited the operating centre, he said, and admitted telling his employee not to give the DVSA examiner the requested documentation.

Mr Bain did not refute the allegations of retrospective completion of maintenance documentation and accepted that there was no evidence presented to the TC showing driver licence checks being carried out or to demonstrate that driver hours were now being managed effectively.

On his behalf, Mr O’Leary submitted that there were issues of concern but that there were some positives. Although things were clearly not right with the management of drivers’ hours, it was contended that Mr Bain had hired two people – one of whom was CPC qualified – to help out following his wife’s death, and that when the problems were brought to his attention, he had sought external help to try and get things sorted.

Furthermore, VE Mackie’s report was said to be ‘not the worst of its kind’ and there had been no further MOT failures or prohibitions issued since VE Mackie’s final visit in November 2022, and the TC was reminded that Mr Bain was booked on a CPC refresher course and was said to be taking his responsibilities seriously now. Mr O’Leary suggested that this was a case which could be dealt with by way of a significant curtailment and undertakings, and an audit undertaking was offered.

The TC was asked to believe that Mr Bain had not been obstructive with DVSA, rather he had displayed a misguided sense of affront when VE Mackie asked his staff for documents rather than him as the boss, and his failure to comply with TE Jarvis’ requests were borne out of computer illiteracy. Since the 2019 inquiry focussed on different issues, the TC placed less weight on that PI in deciding upon the current matters.

Another King Long in the fleet was BX15 MKZ, which had also seen use with Airparks at Luton Airport. DUNCAN COGHLAN

Consideration

TC Gilmore said she found Mr Bain to be a reluctant and unreliable witness, noting that he spoke under his breath during much of his evidence and had to be prompted to provide full answers to many of the questions asked.

It was clear from TE Jarvis’ evidence that no downloading of data or analysis was taking place at the time of her investigation and had not been for a considerable period. Periods of driving off card and drivers’ hours infringements were identified. Meanwhile, VE Mackie’s evidence was that there were significant shortcomings in Mr Bain’s arrangement for the maintenance of his vehicles. Serious shortcomings which had been identified in 2019 were still evident despite DVSA advice and assurances being given by Mr Bain, the TC believed.

“Those findings, coupled with Mr Bain’s very obvious lack of knowledge or understanding of the current rules relating to transport operation or his transport manager responsibilities, led me to conclude that there had in fact been no proper management of Mr Bain’s transport operations for a considerable period of time,” she concluded.

Mr Bain said he had delegated some responsibilities to others, but whilst a level of delegation for certain tasks may be acceptable, it is incumbent on an operator and transport manager to oversee operations and ensure that the undertakings on the licence are being met, the TC warned, something which Mr Bain grudgingly admitted that he had not done. Of concern was that he did not appear to accept that his failure to keep his knowledge or skills up to date was an issue.

By the date of the inquiry, there remained an absence of evidence to show that proper brake testing was being carried out or that vehicles were being properly maintained according to schedule, which led the TC to find that road safety and fair competition had been significantly compromised.

Serious

The TC went on to suggest that perhaps the most serious aspect of the case was the allegations concerning Mr Bain’s failure to co-operate with, and obstruction of, DVSA officers in the course of their duties, and subsequently failed to deny that there had been retrospective completion, and therefore falsification, of maintenance records.

“I accept that Mr Bain’s computer illiteracy may have contributed to his failure to co-operate with TE Jarvis’ requests. However, he made no proper attempt to bring his difficulties to her attention and admitted to disengaging out of frustration instead,” said TC Gilmore, noting that documentation which had been requested was later provided for PI.

Mr O’Leary submitted that Mr Bain was not being deliberately obstructive but acted as a result of a misplaced sense of affront; the TC did not accept that, and found that his attitude at the PI was one of arrogance rather than of concern for compliance and operating within the rules, adding that it seemed likely that Mr Bain’s failure to co-operate was also an attempt to hide his shortcomings and attempt to evade regulatory action.

“Mr Bain’s actions have undoubtedly prolonged the risk to road safety that his transport operations have posed. His behaviour is entirely inconsistent with the obligation upon all operators to operate in a trustworthy manner. If I cannot trust Mr Bain to co-operate with the authorities, or to face up to and remedy shortcomings where they occur, then I cannot trust him to safely operate vehicles outwith the gaze of the regulator,” TC Gilmore found, adding that when taken with the evidence from the 2019 PI, Mr Bain’s behaviour to amounted to a course of conduct.

“Given my finding that Mr Bain’s maintenance documents had been falsified, I am unable to rely on any of the documentation produced by him for inquiry. There was, therefore, little evidence before me even at the date of inquiry to suggest that operations were now compliant,” the TC found, noting also no evidence of Mr Bain’s attendance at a CPC refresher course.

Among the many vehicles stored long-term out of use in the Oldmeldrum yard is 611 LFM, new in 1984 to Stagecoach, but subsequently fitted with the more modern, less stylish form of front panels. DUNCAN COGHLAN

Positives

In balancing the facts, the TC did find some positives in that Mr Bain was a long-standing operator and had hired two people – one of whom was CPC qualified – to help out following his wife’s death. He had also, on occasion, sought external help to try and improve things. There had been no further MOT failures or prohibitions issued since VE Mackie’s final visit in November 2022. The TC also accepted that the loss of his wife likely impacted on his ability to run his businesses.

Nevertheless, the positives were insufficient to outweigh the negatives and TC Gilmore concluded that she was no longer able to trust Mr Bain or believe his assurances that he is operating compliantly.

Asking the question ‘How likely is it that this operator will, in future, operate in compliance with the operator licensing regime?’, TC Gilmore believed that he had failed to heed an earlier warning and much of his evidence was inconsistent and incredible, and therefore considered it highly unlikely that he would comply in the future.

Revocation & disqualification

Mr Bain contended that regulatory action would probably mean the end of his businesses; he wanted to carry on and wasn’t ready to retire yet. However, answering the question of ‘Is the conduct of this operator such that it ought to be put out of the business?’ the TC found that Mr Bain has obtained a commercial advantage over other operators and compromised road safety by deliberately failing, for a significant period of time, to keep his vehicles in a fit and serviceable condition or to ensure that the laws on driver hours were complied with, and had attempted to conceal his failures by falsifying documentation.

Since dishonesty was a feature of the case, the starting point for regulatory action was severe. The TC found that Mr Bain had lost his repute as an operator and transport manager. In disqualifying him and revoking both licences under his name, the TC allowed a short period of grace for Bain’s Coaches to allow for the retendering of the one registered service operated, ordering her decision to take effect from 2359hrs on 20 September. The linked ABC (Methlick) licence was revoked from 2359hrs on 6 September to allow for an orderly winding down of the business.

Since Mr Bain has attended a public inquiry before, as recently as 2019, at which similar concerns were raised and it appeared he had failed to heed the warning, the TC considered that a period of disqualification was necessary to meet the objectives of the operator licensing regime. Acknowledging the seriousness of the case, but giving credit for the positives that she was able to find, she decided to disqualify Mr Bain from holding an operator’s licence for a period of five years.

“It was clear from Mr Bain’s evidence that his knowledge and skills as regards the running of a transport operation were severely lacking and out of date,” the TC concluded, setting the requirement to resit the full transport manager course and exam if Mr Bain wishes to be appointed once again as a transport manager, along with the stipulation in such a case that he appear before a Traffic Commissioner to determine whether his repute should be restored.

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