Written decision revokes The Skiers Lodge Ltd’s licence

In a written decision by the Traffic Commissioner (TC) for Wales Nick Jones, The Skiers Lodge and Express Airport Transfers (Europe) had their licences revoked, and TSL (Wales) Ltd saw its licence refused. Madaline Dunn reports

In a damning report upon review of evidence from 4 October 2018’s Public Inquiry (PI), the TC for Wales found Andrew Martin and his three entities unfit to operate services.

The report gave an overview of the PI as well as the TC’s reflections on the conduct of those involved.

In attendance at the PI on 4 October 2018 was Andrew Martin, Director of all three entities, to consider his repute as a Transport Manager; John Alan Jackson, (commonly known as Alan), called to consider his repute as a Transport Manager; Vehicle Examiner (VE) Mark Williams; Traffic Examiner (TE) Sarah O’Brien; Martin Garlick, DVSA Vehicle Enforcement Manager (SVE) for North Wales; Simon Jenkins, DVSA Traffic Enforcement Manager (STE) for North Wales; Bus Compliance Officer Nesta Jones and Barclay Davies, Director of Bus Users Cymru. [wlm_nonmember][…]

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The PI for all three entities where Andrew Martin was Director was held due to a number of concerns that had come the attention of the TC. It was apparent that Shrewsbury-based The Skiers Lodge Ltd had registered services in Wales but there were significant issues raised with both timetable and road safety problems, and TSL (Wales) Ltd appeared to being operating without a licence having been granted. Additionally, The Express Airport Transfers (Europe) Ltd licence had apparent issues including ones relating to professional competence.

Former transport managers Stephen Bryce and Neil Jones were also in attendance and had both submitted allegations against Andrew Martin. Bundles were produced by Andrew Martin too, which according to the TC contained very detailed allegations in respects to former employees Stephen Bryce and Neil Jones. Neither Neil Jones and Stephen Bryce’s or Andrew Martin’s bundles were used as evidence within the PI due to issues of legality and propriety.

The evidence presented

The TC explained to Andrew Martin that much of his approach to matters including that relating to finances was set out in statutory guidance issued by the Senior Traffic Commissioner, and it transpired that the statutory guidance had not been seen by Andrew Martin.

It was established in respect of the requirement for financial standing that the licence PD1025479 for the West Midland Traffic Area, the Skiers Lodge Ltd granted in 2003 had sufficient finances for the 10 discs authorised. For TSL (Wales) Ltd there was an application for 20 discs in the Welsh Traffic Area and sufficient finances for the five discs that were sought at the commencement of the PI. The licence PD2003185 for the West Midland Traffic Area, Express Airport Transfers (Europe) Ltd t/a EAT, however, only had sufficient finances for eight discs and not the 13 discs authorised at the time of the PI.

Additionally, whilst Andrew Martin was sole Director for all three entities, he was also Transport Manager for The Skiers Lodge Ltd and sought to remain in that position. John Alan Jackson was nominated as Transport Manager for the applicant company TSL (Wales) Ltd, but Andrew Martin sought to replace him. Stephen Bryce was formerly Transport Manager for Express Airport

Transfers (Europe) Ltd and there was no current authorised transport manager in post, however Andrew Martin sought to fulfil that role too.

It was subsequently established that if the TC granted a licence for TSL that the licence for Express Airport Transfers would be surrendered.

Andrew Martin explained that he had been involved in PSV operating for 30 years, including in France, where he had sold his PSV business to another entity in 2017. He had operated in Great Britain in the 1980s and 90s. Andrew Martin confirmed that he qualified as a transport manager in approximately 1998 and whilst he had not attended a specialist transport manager refresher course, one was booked for later in the year.

The operating centre in Rhosymedre

One of the significant features of the hearing related to whether or not premises apparently being used amounted to being an operating centre.

Andrew Martin had claimed that the DVSA had provided no evidence that the vehicles were at an operating centre in Rhosymedre, Wrexham. In addition to this Andrew Martin added that he had asked the DVSA about the legal position relating to the definition of an operating centre. The TC responded he would have been given an answer had he asked a specialist transport lawyer or specialist transport consultant and that the law was very clear that vehicles should normally be parked at an approved operating centre when not operated or maintained.

The TC referred to VE Mark Williams attending Rhosymedre on 6 July 2018, on an inspection where it was found that the vehicles had been there overnight and the engines were cold. Andrew Martin stated that this was due to an arrangement with Fleetserve Engineering Ltd who shared the same unit, and that the vehicles were on the premises for maintenance. When challenged by VE Mark Williams, asking if the vehicles were being maintained every night they were there, Andrew Martin said that on occasion the vehicles were not being maintained at the site in Rhosymedre but claimed that this was not illegal.

One of the annexes provided to DVSA reports included a copy of a contract dated 26 June 2018 between TSL (Wales) Ltd and The Skiers Lodge, which purported to allow The Skiers Lodge Ltd access to premises owned by TSL Ltd as its proposed operating centre in Rhosymedre.

Paragraph 15 confirmed that access was provided for the following purposes only:

1. The daytime or overnight maintenance, repair, defect rectification, safety inspections, MOT preparation of its vehicles used on the Contract by the Contractor’s registered maintenance provider: Fleet Serve Engineering Ltd;

2. The temporary parking of its vehicles whilst use on this Contract;

3. The temporary parking of private vehicles owned by its drivers used on this Contract; or

4. The temporary storage and supply of its own road diesel.

The contract also set out in bold type: “For the avoidance of any doubt. Nothing in this paragraph, or entire Contract, creates the existence of a Vehicle Operating Centre for the Contractor.”

Paragraph 16 of this document noted that during every period of two weeks a vehicle is used for this temporary contract, it must be returned to the registered operating centre of the contractor as recorded on their PSV operator’s licence at least once.

The TC noted that paragraph 17 of the Contract read: “The Contractor confirms that all vehicles used for this Contract have been “normally kept” (sic) at its registered operating centre for at least the previous 26 weeks prior to commencement of this Contract. (Unless the vehicle has been acquired by the Contractor within this period). The Contractor further agrees that all vehicles used for this Contract will continue to be “normally kept” (sic) at its registered operating centre for at least the subsequent 26 weeks following the ending or termination of this Contract. Unless the vehicle is sold, transferred, hired, loaned, assigned, or otherwise dispose of, during this period.”

Upon reflection the TC commented: “This appeared to be an attempt to circumvent the legal requirement for an operating centre and pointed out that case law referred to the desirability of full and proper records of any hire agreement between the two parties. In this case the two limited companies had Andrew Martin as sole director and the arrangement was signed by him twice, in the capacity as director of the two entities.”

VE Mark Williams maintenance investigation

VE Mark Williams confirmed that his maintenance investigation commenced on 6 July 2018 and that it sought to check the condition and roadworthiness of the vehicles being operated and check the maintenance arrangements and procedures currently in use. Additionally VE Mark Williams noted he had intended to follow-up after multiple prohibitions issued to vehicles within the previous 16 month period and confirm that an unauthorised operating centre in Rhosymedre was in use.

VE Mark Williams considered the investigation to be unsatisfactory as:

1. Five vehicles were inspected at a fleet check but only two were clear of defects;

2. The examiner was unable to determine the inspection frequency due to vehicles entering service in June 2018;

3. The Maintenance file for one vehicle could not be located at the Shrewsbury depot on one day or the Wrexham depot the next day. It was also confirmed that that file was not with the maintenance provider;

4. No maintenance forward planner was seen at either location (Shrewsbury or Wrexham) and it was confirmed that it was not with the maintenance provider. Andrew Martin disputed this at the PI saying that maintenance records were kept at more than one site. The TC then pointed out that the stable establishment requirements for the operator’s licence include a requirement to keep records at one site;

5. Whilst a copy of a maintenance contract was provided, there were no vehicles specified and the inspection frequency was not set out;

6. It was noticeable that there was a lack of large workshop equipment. Further to this it was noted that this was a problem which occurred when using mobile mechanics that do not necessarily have access to rolling road brake tests. Andrew Martin said they had taken place, DVSA found no evidence of this;

7. The premises at Rhosymedre were being observed as being used as an operating centre for vehicles assigned to Wrexham and Llangollen service routes. Mark Williams found that none of the occasions where he visited the Gledrid truck stop, did he find the operators PSVs parked there;

8. Since 15 March 2017 11 vehicles had been issued with a prohibition notices for 11 immediate and five delayed defects; and
9. The Wheel loss incident of 18 July 2018 – 19 July 2018 where VE Mark Williams was given the details of an anonymous report relating to a wheel loss that occurred on the A483 dual carriageway between Wrexham and Oswestry, involving a PSV in the livery of Easybus (a trading name of The Skiers Lodge Ltd and TSL (Wales) Ltd). The incident was not reported to the DVSA.

In motion the outer wheel of a vehicle had become detached. The wheels had been removed from the nearside rear axle after a temporary repair affected at the roadside. It was confirmed that the wheel studs, nuts and wheels had been replaced and returned to service the next morning. When VE Mark Williams visited Rhosymedre, he inspected the Optare Solo MX07JOJ and found that the wheels had been run loose as the wheel stud holes were worn and elongated, the mating services were bright, indicating movement had been present. The outer wheel had deep marks in the centre, similar to that which would have been made as the wheel contacted the end of the half shaft as it left the axle. After work had been done on the vehicle the technician requested it to be road-tested and re-torqued however it was returned to service instead as the route was too tight for the larger vehicles in possession of the operator. The examiner was asked if he thought the vehicle should not have been on the road. He said yes, and Andrew agreed and blamed Neil Jones.

The driver defect card for 16 July 2018 indicated the vehicle had been defective with smoke coming out of the nearside rear wheel arch after the first trip. It had been returned to service on 18 July, with the nearside rear hub seal, disc and pads replaced.

The driver of the vehicle, Nicola Benson, had reported smoke coming from the vehicle, and was not listened to until she refused to drive the vehicle. The vehicle was repaired and then returned to her. After this it was noted that she noticed the wheel, and that there were no wheel nut indicators fitted to the vehicle. Further to this she stated Andrew had been aware of the wheel loss incident, although he refuted this. An email was sent by Andrew to begin the process of reporting the incident, however this was not completed.

Sabotage

Andrew Martin told the examiners that the company vehicles had been the subject of sabotage and showed a piece of copper pipe which he stated had been removed from one of his vehicles. He stated that he suspected his former transport manager. Here the drivers handbook was checked in relation to driver defect reporting and walk-round checks.

Andrew Martin was described as being keen to discuss a recent prohibition issued to a vehicle on 3 July 2017 from a leaking fuel tank. He stated that the vehicle had been left unattended by a driver in Llangollen while on a break, and when the driver returned there were two DVSA officers on side and a pool of diesel under the fuel tank of the vehicle. He insinuated that the DVSA officers had sabotaged the vehicle and showed the two examiners a photograph on his mobile which showed a rosary object with a large hole in it.

It was claimed that the vehicle had broken down earlier that day and had been repaired at the roadside; Andrew Martin suggested that if the fuel tank had been leaking it would have been noticed by maintenance staff at that time. VE Mark Williams explained to me at the hearing that his understanding of the breakdown was that it was a fan belt broken on the rear of the engine and was it not in the vicinity of the fuel tank.

Maintenance files

When asked for maintenance files for three separate vehicles only two were produced. These files contained a PMI report that had been completed as part of an annual test preparation and included the test card and brake print out. When the third file couldn’t be found, Andrew suggested it was probably at the Wrexham depot, due to ongoing repairs.

VE Mark Williams found the driver defect reporting very comprehensive, but also found examples of completed cards where the driver had failed to record dates and vehicle registrations.
The premises that Andrew Martin states was used for vehicle maintenance (Vanguard Industrial Estate, Battlefield, Shrewsbury) was also found to be a retail outlet and unsuitable for large PSV maintenance.

According to the evidence considered by the TC, Andrew claimed that he offered to take Williams to the unit to view the forward planner and that the examiner said it was not necessary. Williams told the TC that he did not remember Andrew Martin offering this.

On Friday, 13 July 2018 at 0800hrs VE Mark Williams visited the operating centre at Rhosymedre and spoke to employee Alan Jackson who was asked for the maintenance file for the vehicle referred to above where no files were available in Shrewsbury. Alan Jackson told the examiner that all maintenance files were kept in Shrewsbury. Maintenance providers were not on site but were due in at 1030hrs, but when the examiners returned at that time the premises were locked up and VE Mark Williams waited until 1115hrs before leaving.

Maintenance arrangement

The SVE Martin Garlick was not satisfied with the maintenance arrangement at the Rhosymedre depot. The TC said that the evidence showed it was not safe to check steering using the type of lifts utilised. A satisfactory check of the steering should involve rocking of the steering which, in his view would make the vehicle unstable on the lifts.

Andrew also claimed that the vehicles had just entered service; however, these vehicles would have required a pre-first use check. This would have included rolling road brake tests.

Comment was made that the pro forma vehicle defect card, which provided space to record defects together with action taken with a box to sign off rectification work, also provided for nil defect to be recorded as set out in the company’s driver handbook, was not complied with.

Unauthorised vehicle alterations

Another concern raised by VE Mark Williams – one not accepted by Andrew Martin – followed an incident on 8 August 2017, after a DVSA road check on a 16-seat minibus operated by one of Andrew’s companies, which operated on an airport shuttle service. The vehicle had unauthorised alterations which were safety hazards. The next day after inspection however, the items had been altered in what he considered an attempt to undermine prohibition, which was later cleared in the usual way at an ATF.

Andrew said the vehicle manufacturer had designed it in such a way for quick release of seats to be replaced by luggage. Martin Garlick refuted this.

There was also concern raised over one of the vehicles’ rear emergency window glass replacement, and the subsequent lack of replacement of mandatory legal lettering. The TC noted that this was Andrew’s responsibility as an operator. On the topic of Andrew Martin’s expectations of others, the TC told him that he: “Needed to manage that expectation and the buck stopped with him as the director of the entities holding operator licences.”

Undermining ostensible authority

On being cross-examined by Andrew Martin, it was put to VE Mark Williams that he had been manipulated and influenced by Stephen Bryce and this created bias in his investigation and report.

VE Mark Williams disagreed. Andrew Martin confirmed that he was questioning the integrity of VE Mark Williams.

Andrew Martin and VE Mark Williams disagreed on evidence relating to whether or not a technician would have noticed a fuel leak whilst replacing a fan belt.

At this point of the hearing VE Mark Williams told the TC that he wished to clarify a point referring to the number of vehicles which Andrew Martin claimed had received MOTs. He told the TC that he had a notebook which formed the basis of his PI statement and wrote the six registrations that Andrew Martin gave him, so those were the ones that he undertook research on. Accordingly he was not given details of 10 vehicles.

The TC sought clarification from Andrew Martin as to the discussions that he had with the examiner about the forward planner. He told the TC: “He didn’t really want to see a forward planner because… so he could write into his report that there wasn’t one.” He went on to show the TC a copy of a planning application which revealed that the premises at the Vanguard Industrial Estate had permission for the repair of vehicles and that if the examiner had gone into the premises he would have seen that they were suitable for this purpose.

Referring to whether or not there had been issues relating to payment for maintenance providers Andrew Martin told the TC: “My suggestion is he has put in evidence that suits, i.e. he wants to discredit me so he’s put in where there are disputes.”

Further evidence against the operator

TE Sarah O’Brien confirmed that her investigation commenced following the advertisement of four new registered services in the Wrexham area when no operator’s licence had been granted in Wales.

Two separate vehicles on two separate occasions had discs registered as void in July 2017, and there was also improper use of VOR procedure. The TC also noted the vehicles should have gone back to the West Midlands every night after maintenance, because not doing this meant it was an operating centre.

The evidence supplied by Nesta Jones was not challenged. She noted that whilst the operator had previously been congratulated on the running of its services, there were incidents where drivers made mistakes, or there were mechanical issues. A monitoring exercise was subsequently conducted from 29 January 2018, which concluded that the operator had a punctuality/reliability rate of 60%.

When four new services were introduced, and monitored, it was found the punctuality rate was 56%. Further to this, subsequent additional monitoring found that there was a punctuality rate of 57%.

Alan Jackson, the proposed Transport Manager for TSL (Wales) Ltd was then asked if he was aware that Andrew Martin was running a business without an operator’s licence in Wales. He responded that he was aware and did not report it. He had also not undertaken transport manager refresher training since he qualified in 1988.

Andrew Martin then went on to note that The Skier’s Lodge Ltd had an unblemished record until 2016, when he began to delegate powers, which was where problems commenced.

Potential disqualification under section 28 of the Transport Act 1985 was discussed with Andrew Martin who felt that that would be disproportionate due to this being his first PI; he also reminded the TC that he was committed to some refresher training.

TC noted that he accepted the factual accuracy of VE Mark Williams, and he was not impressed with Andrew Martin’s lack of professionalism, which made an attack on the integrity of a DVSA examiner which was unjustified.

The findings

The TC’s findings were that whilst Andrew Martin felt that people conspired against him, and that VE Mark Williams was complicit, he believed Andrew Martin thought he was acting properly when he drafted paperwork; however he was operating a business in Wales without lawful authority. The TC also found that Andrew Martin did not appear to have a sufficient appreciation of the principle of ostensible authority. The TC also found little merit in imposing any financial penalty, due to the revocation of licences and the refusal of an application. It was also found that Andrew

Martin also failed to understand his responsibility in relation to timetable failures.

It was understood by the TC that incidents such as the legal lettering on rear glass of his vehicles, and the prohibition issued following the removal of seat from a minibus reflected Andrew Martin’s lack of appreciation of standard industry practice.

The TC stated that whilst he was not a rogue, he had a ‘pitifully inadequate understanding of compliant PSV operator licensing within Great Britain’ and that as a result he could not trust him to run a compliant PSV business.

The TC added: “It is in Andrew Martin’s interests as well as that of the public service vehicle industry generally that he be required to requalify as a transport manager, if he were ever to seek to fill such a position within Great Britain.”

The TC found Alan Jackson as wholly unprofessional and subsequently he lost repute, and is required to requalify before holding or applying for any new transport manager position.

Under section 28 of the Transport Act 1985, the TC considered an order of disqualification in respect of The Skiers Lodge Ltd appropriate, as it was operating illegally, and also bus users found the services to be neither safe nor compliant with registered timetables.

Ultimately the TC found that there had been abject failures to comply with minimum standards in relation to road safety and basic legal principles. There was additionally unwarranted confrontational demeanour to DVSA examiners and so he found an order of disqualification for period of two years appropriate.

The TC said: “In this case I allow the two-year period to commence from the date of the PI.”

It was found that the application for TSL (Wales Ltd) must fail, due to the operator being unable to satisfy that it was of good repute, and additionally there was no individual with the necessary transport manager good repute and professional competence.

In the case of Express Airport Transfers (Europe) Ltd the sole director was disqualified under section 28 of the transport act 1985 and lost repute as manager. The operator was found to no longer possess good repute or professional competence.

The TC accepted that in the case of Express Airport Transfers (Europe) Ltd licence that most failings related to Andrew Martin and so the formal revocation was not immediate, in order for assets to be sold, meaning that there could be a different director and transport manager.

Andrew Martin as sole director concluded by making comments that perhaps he should consider a different career path. The advice that TC gave to Andrew Martin was to reflect carefully prior to seeking to re-join the PSV industry and that he would need to demonstrate that he can both seek and take independent objective advice.
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