The revocation of the international O-Licences authorising a total of 13 vehicles held by Blackburn-based Abbey Coaches (Darwen) Ltd and Rigby’s Executive Coaches Ltd by Deputy Traffic Commissioner (DTC) Simon Evans has been quashed by the Upper Tribunal on appeal.
The Tribunal directed that the matter be remitted to a different Traffic Commissioner (TC) to rehear and determine after the issue of clear calling in letters.
In revoking the licences, the DTC said that the 10 prohibitions that were issued at Glastonbury Festival to four of the operators’ vehicles on 22 June 2023 amounted to serious failures to secure the safety of passengers.
There was no evidence of any formal investigation or analysis of what had gone wrong, despite the extent of the encounters. There was little evidence that MoT pass rates were improving. Since the beginning of 2023, three of five vehicles had failed at first presentation. It was admitted that some drivers were deployed on a self-employed basis when the operators were unable to justify such status.
DTC Evans was unable to conclude that Rigby’s met the required financial standing requirements. Even where financial standing was met mathematically, there was a reliance on the finances of Coach Travel Solutions Ltd, a separate entity. Finances must be held exclusively in the name of the licence holder.
The Companies House requirements for Rigby’s had been breached by a failure to file evidence for the preceding two financial years. He was unable to be satisfied that vehicles were being operated by the individual company that held each licence. The evidence was to the effect that employed drivers were in the employment of, and paid by, Coach Travel Solutions, therefore the operator was neither Rigby’s nor Abbey.
The Tribunal said that it was satisfied that the DTC erred in deciding that the test for financial standing was not satisfied. However, it had real sympathy with the DTC as to whether the sums in the bank accounts did represent the true or fair financial standing in relation to the companies. He was entitled to have concerns as to the companies’ true financial standing. However, there was insufficient evidence, considering the material presented to him, to go behind the documents served at face value when they satisfied the statutory guidance.
Had the DTC wanted to, he could have undertaken a full and thorough investigation as to the true financial picture of the companies and whether they were simply keeping sufficient sums in a discrete bank account while holding liabilities, debts or the like elsewhere, which undermined their position, or whether the funds were the assets of a different company.
The danger of relying on the bank accounts alone was that a misleading picture could be presented as to the true financial standing of a company. These were exactly the type of issues and concerns that could be addressed at a reconvened Public Inquiry (PI).
The Tribunal was satisfied that there were errors which made the revocation decisions wrong on the basis of maintenance arrangements and loss of good repute. However, it did not agree with all the criticisms of the DTC’s findings regarding the poor maintenance arrangements and record of the companies. For instance, the DTC was plainly right to have very serious concern as to the MoT failure rate of Rigby’s and the failure to present for MoT in the case of Abbey Coaches.
The DTC rightly identified that the operators were “in the last chance saloon” having been given a final warning as a result of the PI in 2021.
The DTC was also entitled to have real concern about the gravity of the four prohibitions notices resulting from the Glastonbury Festival inspections in June 2023. Even if the defects were caused by passengers during travel, could not have been identified by pre-inspection by the drivers and did not disclose a failure to maintain the vehicles by the operator prior to their journeys, they were still concerning as regards the roadworthiness of the vehicles and post-journey inspection regime of the drivers.
It was only at MoT or roadside encounters that the vehicles were inspected independently, rather than the operators ‘marking their own homework’ such as in PMIs. However, the DTC did not state that the Glastonbury prohibitions and MoT failures/absences were sufficient to find a loss of repute or breach of undertakings given by the operators. For that reason, the Tribunal could not find that it was inevitable that the DTC would have found a loss of repute on those bases alone.
Again, the DTC had insufficient evidence before him and gave insufficient reasons for the findings that there was something unlawful or worthy of a loss of repute in the driver engagement or in the co-mingled, or unclear, company structures. The Public Passenger Vehicles Act 1981 did not necessarily prohibit the use of self-employed drivers being engaged by an operator, albeit that was harder to regulate, and one would expect formal or written documentation that recorded the legal nature of the driver engagement.
A lack of clarity or care taken in respect of the nature of driver engagement might reveal something about the repute of a company. The findings that the operating entities were not the two companies appeared insufficiently reasoned and without evidential support. The company structures and co-mingled use of companies might reveal something going to statutory compliance, financial standing or repute, but the evidential position would need full investigation. The DTC was entitled to have concerns.
The DTC made a significant part of his adverse determinations against both companies on issues which were not identified as an issue at all within the calling in letters and documentation. Consequently, the DTC’s decision was based materially on grounds which were not identified in advance to the companies.
Thus, the decision was undermined by procedural unfairness. It was established law that an operator was entitled to proper notice of the issues to be considered at a PI and here there was no notice at all. The failure to so provide was plainly procedurally unfair.
