Every operator and transport manager dreads receiving the letter calling them to a Traffic Commissioner Public Inquiry … and perhaps with good reason given in the most recent reporting year, there were over 100 Public Inquiries relating to non-compliance by existing coach and bus operators, with almost a third of those hearings resulting in revocation of the O-Licence and less than 10% of operators coming out of the process with no action taken.
When presented with statistics like these, the obvious question is how can you avoid going to Public Inquiry in the first place … or, if you do find yourself there, how can you ensure you are in the strongest possible position to avoid, or minimise the severity of any, action.
The key is to act early!
We all know that, from time to time, things can, do and will go wrong – even in the most compliant and well-managed of operations. It is when, and how effectively, you respond to issues that ultimately determines the outcome of any DVSA and/or Traffic Commissioner intervention.
It is incredibly rare for a Public Inquiry to come with no prior warning – there will typically always be a ‘trigger’ event that should put you on notice of a specific issue and of potential further intervention from either DVSA and/or the Traffic Commissioner. So, recognising those early warning signs (the triggers!) and dealing with them appropriately is key.
We regularly talk to our clients and the wider industry about the different trigger points on the road to Public Inquiry – how these translate to different ‘categories’ of operator and/or transport manager and, ultimately, different outcomes (dependent on how early in the journey action is taken and how effective that action is) ranging from no action through to revocation of the Operator’s Licence and disqualification of statutory directors and transport managers at Public Inquiry.
Some operators and transport managers are incredibly pro-active. They have regular refresher training at all levels of the business (up to, and including, the statutory board) to ensure key personnel have up-to-date knowledge and understanding of the operator licensing regime and their obligations; regular independent auditing of compliance systems to test those systems against current standards and expectations and pro-actively identify any areas of weakness or shortcoming; and routine monitoring and reporting of key O-Licence metrics to senior management and the statutory board – all before they ever experience a trigger event. This degree of supervision, monitoring and oversight of O-Licence compliance will likely (albeit not always) keep operators and transport managers out of the Public Inquiry room.
Others use the opportunity presented by a trigger event (be that a roadside encounter, a DVSA investigation or even a call-up to Public Inquiry) to take action to solve the particular issue, and to review all their compliance systems and address any other areas of weakness. How early in the journey action is taken and how effective that action is will ultimately determine the outcome.
Then, at the other end of the scale are the operators and transport managers who only act when it is a case of ‘far too little far too late’. These are the operators and transport managers who typically bury their heads in the sand and turn up to Public Inquiry with little more than promises of future action. You can perhaps guess how these operators and transport managers fare before the Traffic Commissioner!
The Triggers
The first – and most important – trigger might be some significant event, such as a wheel loss or a bridge strike, but far more commonly it is something far more subtle and less obvious – such as a prohibition being issued during a DVSA roadside encounter of one of your drivers and/or vehicles.
Either way, this first trigger should put you on notice of an issue and provides you with an opportunity to both address the particular issue and review your entire compliance regime – if you have a weakness in one area of compliance, it is possible (in fact in most cases likely) you might also have a blind spot elsewhere; taking steps to pro-actively address any shortcomings at this early stage will put you in a much stronger position when the DVSA turn up (either in person or remotely) to investigate … and, as experience tells us, they will!
The most common scenario triggering Public Inquiry is an ‘S’ marked prohibition notice issued at the roadside for defects relating to tyre condition (such as damage, low tread, cords exposed etc.)! The ‘S’ marking indicates the DVSA consider the defect to be the result of ‘significant failings in the company’s compliance regime’ (i.e. the company’s maintenance systems and procedures could and should have identified the problem that led to the ‘S’ marked prohibition notice).
A roadside encounter such as this will not only adversely affect your OCRS (and may also result in fixed penalty notices being issued to the driver – which need to be notified to the Traffic Commissioner), but will always lead to a follow-up investigation (typically an unannounced maintenance investigation, or a desk-based assessment) by the DVSA (that investigation is trigger 2) with the most likely next step thereafter being a call to Public Inquiry (which is trigger 3).
When faced with an ‘S’ marked prohibition scenario, you should use the opportunity to: (i) thoroughly investigate the prohibition to identify the root cause (this might involve training/disciplinary action for a driver or technician, but should also involve a review of the relevant systems to identify any gaps and take steps to plug them – e.g. changing maintenance provider or introducing additional mandatory tyre checks); and (ii) audit all compliance systems to identify and address any other ‘blind spots’.
The Upper Tribunal repeatedly re-confirm that “the attitude of an operator when something goes wrong can be very instructive” and our significant wealth of experience advising coach and bus operators in connection with DVSA investigations and Traffic Commissioner Public Inquiries consistently tells us that, should you experience a ‘trigger’ event, the most effective approach to safeguard your O-Licence and your business is to take specialist legal advice at the earliest possible opportunity – as the sooner you take effective steps to address any issues, the better the outcome!
For a FREE initial consultation and 10% off legal fees, contact us on 0345 450 7726 or laura.hadzik@jmw.co.uk
