[2023] UKUT 264 (AAC)

The public inquiry took place on 15^th February 2023. Mrs Millman and PHW attended and were represented by Andrew Banks, solicitor of Stone King. Witness statements and a bundle of documents were submitted in the lead up to the hearing. Finances were dealt with as a preliminary issue and it was agreed that the company’s vehicle authority should be reduced to seventeen. The evidence was summarised by the TC in this way:

“9.

Mrs Millman adopted her statement. She told me that she had been in the business since 1991 but more in an administrative capacity. It was only after her husband’s death (May 2020) that she took a wider role. She was attending an operator licence training course the following week. She had realised that her experience on the operational side was not as good as it could be. The easier option might have been to close the business in 2020 but she felt an obligation towards her staff and towards Devon Council. There was a real shortfall of providers in the area.

11.

The company had issues with attracting and retaining skilled technical staff. One technician, Paul Marshall, had left in April 2022. PHW took on the inspections. With hindsight, juggling the engineering and operations roles was too much and she should have brought in another transport manager. They should have considered outsourcing the maintenance. They now had Alex Hamilton, a driver, assisting with inspection and the paperwork. They had invested in new vehicles. PHW had completed the Irtec course the previous day.

12.

Technician Martin Janes had a light vehicle background. He had worked for a local grounds maintenance company looking after vans and pick-ups. I asked about the replacement vehicles and Mrs Millman accepted that they were still relatively old, ranging from 1999 to 2009.

13.

PHW told me that he had been a driver. He had worked alongside Mr Millman in the workshop. He attended a three day basic inspection course in 2015 and refreshed it over the previous days. He hadn’t been able to get the bookings for the roller brake testing. They had now moved to Adams Morey. Taking on the maintenance himself was “foolish” and “unwise”. That would not happen again.

14.

I asked about the prohibitions incurred at annual test. The missing U-bolt on DA52 .. in February 2021 had been fine when it was inspected and must have sheared on the way to test. His technician, Mr Shepherd had provided that explanation. PHW thought that it may have been loose.

15.

The old tyre on the steer axled of GN05 had been the technician’s error using the spare wheel from the back of the vehicle following a puncture without checking whether it was fit for service, symptomatic of Kevin Shepherd’s falling standards. When Mrs Millman challenged him, he resigned on the spot. Mr Hamlyn-White told me that they now recorded tyre age during an inspection. It had always been the way that only new tyres were used on front wheels.

16.

DA52 .. had been prepared to MOT in 2022 by Paul Marshall. (His) background had been working for the RAC. He had been booked on an Irtec course in February 2022 but it had been cancelled as other course members have Covid. It had not been rebooked. … I was told that Mr Marshall had been insistent that he knew what he was doing. Following the failure, the vehicle had been scrapped. ..

17.

I asked then about the fleet inspection. A tyre on WX03 .. had been prohibited for splits in the tread with cords exposed caused by having been recut too deep. That again was Mr Marshall’s fault. The policy was not recut minibus tyres. He had recut it without PHW’s knowledge.

18.

YJ53 had not been used since the end of the school term. They were aware that there were some seatbelt faults. It would have been inspected and put right before the start of the new term. I suggested that the vehicle was likely to have been in service with broken seatbelts. PHW said that was not the case. They had been damaged on the vehicle’s very last journey of the term along with other damage to the window surround and the carpet.

16.

YN53 had been prohibited on 29 September 2022 because of a piece broken from the ring-eye end of the spring. The vehicle was used in a very rough route across Dartmoor.

17.

The driver of WX03 hit a wall on the morning of 13 October 2022 just before DVSA inspected the vehicle at a school and prohibited it for an exterior body panel likely to cause injury and for a fuel leak, which PHW described as seepage from an injector pipe that was a quarter turn loose.

18.

On 28 October 2022, Kevin Northam prepared VU06 for MOT. It was prohibited for a positive hydraulic leak. PHW told me that was seepage from a banjo bolt at the back of a calliper which he believed was caused by the rubber brake pipe flexing as the chassis moved causing wear. It was a tiny amount of brake fluid and PHW had not himself prepared the vehicle.

19.

I asked about an incident referred to by the Examiner of a serious leakage of diesel causing the council to need to re-surface 100m of road. I was told that one of three fuel tanks had been removed from a Volvo coach. Then something in the road struck one of the remaining fuel tanks causing it to twist to the extent that diesel was pouring out of the filler neck which had been dislodged. The incident had not been notified to DVSA so they had not inspected the vehicle.

20.

I challenged PHW on the appropriateness of him undertaking the “head of engineering” role when his qualification was a three-day course. I asked him about some of the investigations he had undertaken on front-axle brake imbalance. He told me that he had been told to investigate anything more than 30%. I pointed out that, on almost all occasions, both front wheels had locked so there was nothing anyone could do to get more effort out of a brake; the limiting factor was the friction between tyre and roller. PHW simply did not understand the basic physics”.

In his closing submissions, Mr Banks accepted that in August 2022, the company had been in a state of flux. It had been naïve and a poor decision for PHW to undertake the maintenance. There were the options of employing another transport manager or sub-contracting the maintenance work. There had been training (the failure of Mr Janes to attend the Irtec course leading up to the hearing was understandable in the circumstances). There would be further training including on how to read a brake test printout. The newer vehicles were still of a considerable age. The company was prepared to install its own RBT and had produced the quote and related paperwork. The systems were now much better and the company had good intentions. Mr Banks submitted that the TC could trust the company to be compliant in the future. It had proved impossible to get an expert in PSV engineering and an undertaking was offered to invest further in training and recruitment. The company had been in business for 110 years. It had a number of employees and PHW had accepted that the failings had arisen on his watch. Revocation would close the business and have an adverse impact on the local community. A suspension would be survivable if at a weekend or over Easter. A curtailment to sixteen would be survivable. The TC observed that it would appear that he was being told that any meaningful regulatory action would end the business and so he could not distinguish the impact of a curtailment affecting the operational fleet to some extent and revocation. The TC rose in order to give Mr Banks some time to take instructions and upon his return, the TC was informed that:

“In terms of the reduction in the authorisation and in terms of viability, Mrs Millman has reiterated to me that she indicated to you which was 16 vehicles is about what they need to be operating in order to make this a viable concern. If you’ll recall at the outset, the initial voluntary surrender was for three licences, so if there’s an additional licence on top of there, there’d be no margin whatever as a consequence of that, no expansion ..”

Mr Banks offered an undertaking on behalf of the company that a suitably qualified external supervisor would attend once a week to oversee maintenance.