Tribunal upholds compensation order after agreeing ‘little progress’ was made on timetable reliability since 2016
Tividale, Warley-based Diamond Bus has lost its appeal against an order to compensate passengers in the Kidderminster area to the tune of £9,075 by Traffic Commissioner (TC) Nick Denton.
The TC made the order following the company’s third appearance at a Public Inquiry (PI) over bus reliability issues.
In October 2014 the company was ordered to pay £57,000 for failure to operate to timetable, later reduced to £34,200 on appeal [routeone/Court Report/7 October 2015].
In November 2016 the company was given a formal warming by TC Denton [routeone/Court Report/21 December 2016 and 8 March 2017]. The company, with a licence authorising 275 vehicles, was called to a Kidderminster PI after the TC had received a large number of complaints from the public and as a result DVSA had carried out a further monitoring exercise [routeone/Court Report/18 July 2018].
Imposing a penalty of £33 per vehicle, the TC said that it was clear that Diamond Bus had made little substantive progress on timetable reliability since the PI in 2016, despite the measures it had introduced.
Non-compliance remained at around 9% of services even after every reasonable excuse for failure to operate to time had been applied. The level of actual non-compliance experienced by passengers at bus stops or bus stations was clearly much greater, at around 20%.
He was especially disappointed that the compliance levels in and around Kidderminster continued to be poor – around 15% even after reasonable excuse has been accepted.
In November 2016 he was told that remodelling of Kidderminster town centre had been responsible for poor timetable compliance and that things should improve. That had simply not happened. Timetable compliance in that area had remained unacceptably low. He considered that, despite the undoubted operational difficulties encountered by Diamond Bus, passengers in the Kidderminster area had been particularly poorly served [routeone/Court Report/15 August 2018].
For the company, James Backhouse argued that it was now evident that the approach to regulatory enforcement and sanction needed more nuance and to actually work in the context of the actual real time data now available.
To maintain an arbitrary approach as had happened here with regard to reasonable excuse was, to punish operators who were doing as well as could reasonably be expected of any operator in their network. That reduced confidence in the system and was unjust.
Dismissing the appeal, the Tribunals said that the appeal was not a policy review of the regulatory system, or part of it, and it was not a philosophical enquiry into the nature of regulatory enforcement.
The question of reasonable excuse must be read together with the Senior Traffic Commissioner’s Statutory Guidance. They noted the flexibility built into that guidance that in general 95% of buses should meet the target. In The Ribble Motor Services case the Court of Appeal explicitly rejected the argument that it was unlawful to have the 95% rule.
The TC concluded that the company had made little substantive progress on timetable reliability since the PI in 2016. The Tribunal agreed with that conclusion.
