Nick Jones, full-time Traffic Commissioner for Wales, has delivered his inaugural annual report to the Welsh Government, as Dominic Ward writes
In his first annual report as Traffic Commissioner (TC) for Wales, Nick Jones is calling for more open dialogue and a streamlined process within the PSV sector.
Mr Jones assumed the role of full-time TC for Wales in October 2016, after working part-time in a role that covered both Wales and the West Midlands. The move came about thanks to a £210,000 increase in Welsh Government funding.
Bus registrations
Back in 2015, announcements were made confirming that devolution would include service registrations being undertaken in Wales.
Current legislation requires local bus services to be registered with the TC, though Mr Jones says there are always potentially more effective and efficient options available with devolution. “Before deregulation in the 1980s, TCs had power to determine if there was a need for a particular service,” says Mr Jones. “Whether and how often a service should run is now a commercial decision for the bus operators. If there is to be an impediment to that, surely it is for elected Local Authority (LA) members to determine?
“My current responsibilities for bus registrations can feel little more than acting as a post box, and a relatively inefficient one at that. Too often complaints and queries are received from people or organisations that obviously do not appreciate that under existing provisions, the TC only has decisions to make in a tiny number of instances – essentially where an application is made without the proper 56 days’ notice.” [wlm_nonmember][…]
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Mr Jones feels that it is by historical accident that bus registrations have remained with him in his post as TC for Wales. He says that this could be undertaken by alternative bodies, and hopes the outcome of the “devolution of this function will result in no more than referrals if there is a need to make a decision.”
IT infrastructure does not work well with the existing arrangements for bus registrations and, as a result, Traveline Cymru and other organisations often need to duplicate the work they undertake, so says Mr Jones. He also says that, with devolution of the bus registration function, they have “a clear opportunity to have a more efficient effective registration service that meets the needs of the travelling public in Wales.
“Currently, the chargeable fees for bus registrations adequately meets the administrative costs and there are opportunities for Wales to provide a better service at less cost if proper systems are put in place. I have suggested that fees might be set at a level whereby there is a heavy discount if service standards are met as set by the Welsh Government. This would include matters such as liaison with LAs where appropriate, and additionally, use of IT.
“Any benefits in bus registrations being put to a TC are more than offset by the disadvantages. Devolution provides an opportunity for reform.”
Taxi and private hire law
Following a review by the Law Commission on taxi and private hire legislation, a number of recommendations were made which, as a result of the Wales Act – which sets out amendments to the Government of Wales Act 2006, and is based on the proposals of the St David’s Day Agreement which were not included in Wales Act, devolves further powers to Wales – might be possible to implement.
These include a closer alignment of taxi and private hire vehicles licenced by local authorities, and PSVs licensed by a TC – changes which, Mr Jones says, will suit the people of Wales.
Says Mr Jones: “Current approaches to regulation by the two licensing regimes are sometimes at contrasting purposes – a feature which does not always assist the travelling public and is sometimes used by rogue operators to their own advantage.”
Mr Jones believes that there may be obvious scope for reform to the special restricted PSV – a subcategory of PSV licences. Restricted PSV licences are granted by TCs to holders of LA private hire licences who want to run registered local bus services. On considering whether to grant these licences, TCs are currently unable to take into account factors relating to the applicant’s repute and/or finances.
On this point, Mr Jones notes: “Effectively, the legislation assumes that these matters have been addressed by those who issue private hire licences. Devolution of taxi and private hire legislation to Wales would enable this to be addressed.”
One of the key roles undertaken by all TCs concerns reviewing a professional driver’s conduct in order to determine they are fit to hold a vocational driving license. Prior to the DVLA’s establishment, TCs were the sole licencing body and the people who made the decision on whether an individual could, or should, hold PSV or HGV licences. However, now these decisions are made following referral from the DVLA and those decisions are binding on the Secretary of State. Mr Jones adds: “There might be greater clarity if, in the new devolved structure, the TC for Wales was an appeal body determining fitness for private hire and taxi drivers, as well as PSV and HGV vocational licence holders.”
DBS checks
One of the biggest frustrations for the operators, says Mr Jones, is they “often have to separate DBS checks (formerly CRB, and provides thorough background checks to prevent unsuitable people from working with vulnerable groups) checks on drivers for each and every local authority area where they operate. The lack of transferability presents a significant regulatory burden and can lead to inconsistency; indeed LA officers have pointed out to me what they consider to be considerable inconsistencies of approach.”
To address this, Mr Jones has mooted a potential solution with both representatives from LAs and the PSV industry – establish a new pan-Wales body to administer appropriate checks on behalf of all licencing bodies within Wales, with authorisations being required for anyone who drives one of several categories of vehicle. Mr Jones also suggests that the appeal body could be TC for Wales, who currently determines the fitness of PSV drivers.
It is in the public belief that DBS checks are carried out on all bus drivers, it being a matter of safeguarding. In reality, however, this is not the case – there is no DBS requirement for driving PSVs. This means that, occasionally, unsuitable individuals have been found to be driving PSVs. Mr Jones comments: “It may be that the Welsh Government will wish to consider whether it has the power to require a DBS check for a PSV driver on a registered service as a condition of Bus Service Support Grant (BSSG) payments, or that it be paid at a far lower level. For the avoidance of doubt, whether or not DBS checks are compulsory for PSV drivers is not a devolved matter, however payment or otherwise of BSSG is devolved; potentially, Wales could lead the way on this.”
Financial constraints on PSV operators
In line with legislation, PSV operators must meet minimum standards in terms of financial standing, and for this to be an ongoing requirement. Mr Jones says that concern has been expressed in some quarters in relation to the number of decent family PSV operators that have ceased trading as a result of financial difficulties within the last few years. “In one case before me within the last year, “ Mr Jones says, “I was faced with a formal request from a county council that I not revoke a PSV operator’s licence on the basis that other local PSV businesses had failed and there was no obvious alternative available; revocation would result in significant problems for the travelling public.
“In another case before me in North Wales, there was considerable publicity as result of my revoking a PSV business. That business thrived as a result of it putting commercial considerations above road safety and was operating in a manner that had a significant adverse effect on the local PSV industry and bus users.”
Mr Jones also went on to add that the DVSA – the enforcement agency – has commented that a number of good family businesses that were not a prior cause for concern to them had ceased to exist as a result of their failing to obtain contracts, and that some were as many as second or third generation family businesses.
Similarly, members of the Welsh Assembly have also expressed their concern over the number of family-run PSV operators that had ceased to operate in the past few years. Mr Jones added: “I am concerned at the link in some instances to the contracting of passenger transport services – the outcome can be what has been described as ‘a race to the bottom.’ In such cases, good compliant family businesses may not be prepared to bid so low, knowing that they would struggle to comply with safety legislation.”
As a result of his concerns, Mr Jones met with the Association of Transport Co-ordinating Officers (ATCO) and representatives from LAs that make decisions on the award of contracts. After discussions and a survey with ATCO’s members, the following points emerged:
- Most, although not all of the 22 LAs, responded to a request for copies of criteria for the award of contracts. Comments from ATCO members suggested that where there was a lack of response, it was usually as a result of tendering being undertaken by a separate local authority procurement team;
- Both written and oral pleas were made to have central guidance and clarity of advice;
- In some areas, LAs endeavour to work collaboratively and to use the same criteria as neighbouring authorities. This joint working can both improve efficiency and provide greater transparency;
- Some – but not all – LAs award contracts using both quality of service and price. A typical authority might contract on the basis of 30% quality and 70% price, although other authorities will reverse this ratio and award contracts on the basis of, say, 70% price and 30% quality. In a number of instances the ratio is 60:40;
- A feature of particular concern is that a number of authorities award contracts solely on the basis of price. This is where there is an increased likelihood of there being the ‘race to the bottom’ referred above;
- Some authorities award contracts solely on the basis of both tenders and reverse auctions. Mr Jones says he has limited sympathy with those authorities which find themselves in difficulties as a result of their good family businesses opting to cease trading; and
- In some cases officers from authorities that award contracts solely on the basis of price have indicated that they deal with problems by ensuring appropriate penalty clauses for failures. Whilst he accepts that there will be a need for arrangements to ensure a contract is carried out satisfactorily, Mr Jones added he has grave concerns where the sole criterion for the award of a contract is price.
In the case outlined above, there was a significant gap in the market as a result of Mr Jones closing seriously non-compliant businesses. He suggests that, if authorities continue to issue contracts based solely on price, there should be an expectation that standards will be reduced for the traveling public, and that LAs will be more likely to go cap-in-hand to the Welsh Government to bail them out.
Mr Jones also says there seems to be an absence of service level standards in relation to payment of reimbursements such as concessionary fares. “In the case of small and medium-size businesses,” says Mr Jones, “this can create real difficulties, and I have considerable sympathy with those PSV operators who would like to see agreed standards. PSV operators will be expected to pay their bills with a degree of promptness; I do not consider it unreasonable that they should also expect that their income streams are not held back arbitrarily.”
The Welsh Government is planning an initiative involving Business Wales, which will see a series of workshops planned for PSV operators and providing them advice on finance, which Mr Jones applauds. However, he has made it clear that the two most significant features that would assist small to medium-size operators would be to:
- Introduce service standards to ensure PSV operators are not financially disadvantaged by late reimbursement of moneys such as concessionary fares; and
- Commence a review of criteria for the award of contracts by LAs. This should consider both whether cooperative regional working might be more effective and, additionally, the review should ensure that the award of contracts does not solely consider issues of money, but considers quality too. The safety of the traveling public – especially schoolchildren – is too important to allow the award of contracts on price only.
Bus Service Support Grant
One of the differentiating features between England and Wales is the grant rebate for bus operators. The existing arrangements in Wales have the early stages of a scheme whereby there is a weighting to take into account issues relating to the quality of the bus service provided. Mr Jones says that, whilst it may be perceived to be relatively crude, the scheme is benefiting from the input of the Confederation of Passenger Transport (CPT). Says Mr Jones: “the principle is a fine one.”
He thinks that it is an anomaly if all registered local bus services receive the same level of support grant, and therefore seems eminently sensible to decide how limited resources are allocated to address the needs of its people. On this point, Mr Jones commented: “Paying all operators the same flat rate of BSSG does not obviously assist in the targeting of limited resources. Often I hear of representations made in relation to, for example, cuts in rural services where, although relatively few people may be adversely affected, the lack of a bus service has a very significant impact on the lives of the individuals concerned.”
One of the proposals that have been mooted relates to whether BSSG can be configured so that it addresses the needs of the traveling public, for example a slightly higher rate in remote rural areas. There is a limited pot of money available to BSSG which, in basic terms, equates to around £25m a year. Mr Jones therefore invites the Welsh Government to consider an extension of the existing scheme so that there is greater emphasis on quality of service provided by an operator on a registered service, but accepts that quality of service is a feature of the current provisions.
Mr Jones says there are options available which could determine there be a specific BSSG element capable of being withdrawn in certain circumstances, with examples including:
- Referrals by either a LA or Bus Users Cymru for failures to run to the registered timetable;
- Referral by the Welsh Language Commissioner (WLC) for failure to adhere to Welsh language standards as set out in existing devolved legislation. Within a few years, all those who register services will be required to meet the standards set by the WLC;
- Referrals from DVSA or the police in relation to road safety or fair competition issues; and
- Referrals from organisations prescribed by the Welsh Government in relation to failures to comply with new standards required for registering bus services (this would be an incentive to utilise IT as set out by the Welsh Government, and to liaise appropriately and cooperatively with LAs).
Other options are potentially available, says Mr Jones, and theoretically a higher rate of BSSG might be available on particular routes as determined by the Welsh Government, though he admits that an impediment to this would be that the money currently distributed by the Welsh Government is relatively low.
Concessionary Fares
Mr Jones has said he has discussed the matter of concessionary fares with a range of individuals from different backgrounds, and it has been suggested that he sets out issues with the intention that there might be a debate within the National Assembly for Wales, though he does admit that, should any decision be made which would change the status quo, it would be a political one he should avoid.
The existing scheme was introduced at the beginning of the century to address mobility needs for those who were retired. In early 2010, the Welsh Government confirmed that the age of eligibility would not rise in line with changes to the state retirement age, but would remain at 60. However, as reported in CBW1313 the Welsh Government is currently holding a consultation, part of which asks whether this should continue to be the case. Mr Jones says that an increase in retirement age results in an increasing proportion of those who commute to work using concessionary passes.
At present, of a population of around 3m, around 760,000 concessionary passes have been issued in Wales. The Welsh Government’s consultation document on Bus Services Policy in March 2017 indicated that, although bus passenger numbers have declined, the number of concessionary journeys undertaken has increased. As a breakdown in the latest figures – 2014/15 – the percentage of concessionary journeys are: England – 34%; Scotland – 36%; and Wales – 46%.
Most concessionary journeys are registered through the use of a card. However, not all operators have the infrastructure to facilitate this, meaning they will be manually noting the number of bus passes used. Mr Jones said: “I have concerns at the potential scope for mistakes. There has been at least one prosecution for major fraud.
“If funds are limited, it is important that they are not misused and are appropriately targeted. There is a case for requiring operators to use equipment, if necessary supplied by the Welsh Government. Again, it might form part of the eligibility for BSSG to require the use of IT at the specification set from time to time by the Welsh Government.”
Approximately, for every £1 spent on BSSG, £3 is spent on concessionary fares. The more that is spent on concessionary fares, the less money available for BSSG. Mr Jones says that, if it is the view that BSSG be used to shape funding for bus services in Wales, additional funds might be needed from another source or, alternatively, consideration could be given to reducing concessionary fare expenditure.
“As indicated, it would be inappropriate for me to offer a settled view, and research might be required to understand the impact if concessionary fares in Wales were at the same levels as those in England.
“In the event of a shift to match concessionary fare arrangements with those in England, there will need to be a carefully planned transition and that existing pass holders do not lose out.”
Community Transport
Mr Jones says he is conscious that there is debate taking place within both the PSV and Community Transport (CT) sectors in relation to the demarcation between the two regimes, but feels that it would not be helpful to become embroiled in this area.
The issue of CT permits is undertaken by a variety of organisations that, says Mr Jones, have an almost complete lack of transparency and/or accountability. New permits are granted for five years, but there could still be old permits in use as regulations were not introduced as anticipated by legislation, bringing them to an end. Mr Jones explains that there are three types of body that grants permits:
- TCs;
- LAs; and
- Designated bodies – there is a sundry list of about 60 bodies that have authority to issue permits.
Mr Jones adds that, if there was one licencing body with a single coherent rulebook, leaving the TC for Wales as the appeal body, there ought to be a process whereby bodies such as local authorities and the CPT could be able to object to applications for permits and/or their continuation. Presently, the Community Transport Association (CTA) issues permits to a wide variety of organisations. Paradoxically, this includes issuing permits to organisations on the list of designated bodies.
Whist the CTA is regarded by many as the principal issuer of community licences amongst the list of designated bodies, it has also been described by some as a trade association, reflecting how highly it is regarded. This is also recognition of its invaluable training role. Mr Jones goes on to say that, constitutionally, it would be logical to ensure that any future organisation that issues community permits could not also be a trade association.
The impact of congestion on bus services
Mr Jones says he did not respond to the formal consultation from the National Assembly for Wales’ Economy, Infrastructure and Skills Committee this years, which led to the publication of its report ‘Taming the traffic: The Impact of Congestion on Bus Services’ (CBW1303), as it was pending the General Election to the Westminster Parliament. However, he did say that the crux of the problem is that, at peak times, there is avoidable congestion on the road, especially in urban areas. This is most prevalent during school term times, and has a significant impact on both the economy and environment. He further adds that the provision of timely bus services can have a positive effect on both levels of congestion and the environment.
In some parts of the country, LAs have allowed HGVs to use bus lanes where the roads are planned so this can be facilitated. On the point of HGVs, Mr Jones says: “Alternatives to using HGVs usually result in a considerable number of unregulated large vans, thereby increasing congestion and causing far greater environmental damage.
“As the regulator for the HGV industry, I also point out that a single modern, efficient HGV will produce far less pollution that a traditional five-year-old family diesel car.”
Certain parts of Central London, where there is an acute shortage of road space, have seen only PSVs allowed to use bus lanes – taxis are excluded from them. Mr Jones is of the belief that, where a bus lane is introduced, thought should be given to who is allowed to use it. Says Mr Jones: “Good planning is required and unintended consequences should be avoided.
“I am conscious that some cities which have introduced separate road spaces for bicycles for understandable safety reasons have had problems when emergency service vehicles have had their access limited as a result of ordinary cars and other vehicles being unable to pull over and leave sufficient space.
“A number of excellent initiatives have taken place involving specialist training for HGV drivers to better understand the needs of cyclists, and vice versa. Specialist cycle awareness is not yet to my knowledge one of the modules for HGV CPC, although this might change in the future.”
Liaison and communications
Concluding his first annual report, Mr Jones says he is endeavouring to set up pan-Wales forums, with a view to improving communications within both the haulage and PSV industries. Preliminary meetings have been held, with the first formal meeting due in October 2017.
Whilst he seeks to communicate effectively with all relevant organisations in Wales, Mr Jones is clear that there are some there are some organisations where it would be advantageous to meet to discuss potential synergies.
The Welsh Government has already indicated support for Mr Jones to hold regular seminars with a view to both educate and communicate with operators, thereby improving road safety and assisting in achieving a level playing field for operators.[/wlm_ismember]
