[2025] UKUT 062 (AAC)

The Commissioner’s reasons for her decision included the following description of VE Mackie’s evidence:

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

16.

VE Mackie attended again, unannounced, on 3 October 2023 [judge’snote: 2022mayhavebeenintended]. The assistant transport manager was present and VE Mackie asked him if he could view the vehicle files. VE Mackie advised that Mr Bain had, however, instructed the transport assistant not to allow VE Mackie access to the files.

17.

VE Mackie left, having agreed to come back on a specified date. He made a third, announced, visit on 11 November 2022 whereupon he examined 3 vehicles, reviewed the vehicle files and completed the investigation report.

18…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. VE Mackie was extremely concerned that brake testing was not being carried out as it should be for many of the inspection records had no record of brake testing…

19.

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. It was of great concern to him that he had been prevented from accessing the vehicle files during his visit. He 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, when he eventually was given access to the documentation, that many of the safety inspections appeared to have been completed retrospectively.

20.

VE Mackie advised that he had looked at a sample of the PMIs lodged for the inquiry. 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. It was still not possible to tell if all the vehicles were undergoing any meaningful brake testing.”

The Commissioner’s reasons described Mr Bain’s evidence as follows:

“23.

When he got the request from TE Jarvis he was unable to get the information from the computer. He couldn’t operate the computer. He had asked a consultant, Gary Hughes, to help but Mr Hughes couldn’t download it either.

24.

Mr Bain advised that he became frustrated with the emails coming back or forward from TE Jarvis and largely stopped engaging. He went to Stonebridge who 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. He denied that he had done so in an attempt to evade regulatory action.

25.

Mr Bain admitted that no proper downloading or analysis of drivers’ hours had been done for some time. Things had slipped and he was just too busy…

27.

Mr Bain denied that he had been obstructive with DVSA during their investigations. He 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 more of the same. There was ‘a right way and a wrong way’ to do things and VE Mackie should have asked him, not his employee, for documents when he visited the operating centre. He admitted telling his employee not to give the DVSA examiner documentation that he had asked for.

28.

When asked about VE Mackie’s concerns in relation to the retrospective completing of maintenance documentation Mr Bain did not refute the allegations. He commented that ‘it was a job being right all the time’. He also accepted that there was no evidence before me at the inquiry of driver licence checks being carried out or evidence to demonstrate that driver hours were now being managed effectively.”