Not fancy being called to Public Inquiry? 9 top tips for operators

06 February 2024

Amy Smith, one of our Regulatory Solicitors recently attended the virtual UKCOA members meeting whereby the Traffic Commissioner for the West Midlands Traffic Area, Mr Miles Dorrington, was invited as guest speaker.  Mr Dorrington discussed some of the common “do’s and don’ts” for bus and coach Operators that he has seen throughout his career and we summarise what we understood to be the key takeaways below.

1. Keeping up to date

The Traffic Commissioner stressed that both Operators and Transport Managers should continually review whether they are up to date and if not, what can be done to ensure that they are up to date.  This applies to the operation but also in relation to the rules and the guidance provided.  Mr Dorrington said that this is “essential” and a good starting point is to ensure that both the Operator and the Transport Manager is reviewing the Senior Traffic Commissioner’s Guidance document number 3 (Transport Managers) and in particular, checking the genuine link with the Operator and the duties from paragraph 56 of that document.  This should act as a “shopping list” for the Transport Manager to ensure that all elements are met to ensure continuous and effective management of the transport activities of the business.  We would also suggest that it is worth Operators and Transport Managers taking a look at the training courses that we offer through Back Academy and our free bi-monthly webinars which are great for keeping up to date.

2. Do not assume anything

This point relates to employees that have perhaps been with the business for a long time and  Operators and Transport Managers “assume” that tasks are being done correctly without the need for oversight.  Mr Dorrington stressed that it is the Operator’s and Transport Manager’s responsibility to check on the completion of any delegated tasks and scrutinize/challenge those where appropriate.  It is the Operator and the Transport Manager who is within the visibility of the Traffic Commissioner, and it will be those individuals who may need to deal with the consequences of delegated tasks not being done correctly – should the completion of those tasks affect the continuous and effective management of the transport activities.

3. Have regular meetings

This element of the Traffic Commissioner’s talk links hand in hand with the first point about keeping up to date.  In order to keep up to date, various individuals within a business are expected to have regular documented meetings to ensure that any issues are discussed together with any solutions moving forward.  Mr Dorrington explained that one common example is in relation to driver defect type items appearing on safety inspection sheets.  Those issues should be discussed between the Operator and the Transport Manager to ensure that a more robust approach is taken to driver walkaround checks, driver defect reporting and gatehouse checks.  The Traffic Commissioner explained that he had suspended an Operator for four weeks just last week for this particular issue.  Any meetings held need to be recorded and Mr Dorrington explained that a contemporaneous record is key.

4. MOT first time pass rate

The takeaway point here is to make sure that there are no “silly mistakes” being made which are causing PRS’ or even fails at MOT.  The Traffic Commissioner explained that this statistic says a lot about the Operator’s maintenance regime and is an easy way for a business to ed up at a Public Inquiry.  It is important that the Operator and Transport Manager keep a weather eye on the MOT first time pass rate and scrutinize any PRS’ or failures to understand what happened and what the action will be moving to prevent this from reoccurring.  Again, a contemporaneous record is key and that means that a full investigation is documented.

5. OCRS

The Traffic Commissioner, similarly to the point above, also commented that Operator’s and Transport Manager’s should be checking the OCRS score periodically, as the DVSA will check this data for the purposes of conducting targeted stops and targeted investigations.  Again, meetings should be held between Operators and the Transport Managers to discuss any issues/patterns arising and any actions that can be taken to perhaps work on improvements.

6. Driver CPC

This is an issue that is being seen frequently.  The Operator and Transport Manager should be checking to make sure that drivers do have a valid Driver CPC and are keeping on top of the required training.    The point here is to forward-plan and set reminders for the periodic checking of Driver CPC, Driver Qualification Cards and Driver Licence checks so Driver CPC requirements are satisfied.

7. DVSA Investigations

The Traffic Commissioner briefly spoke about both DVSA Desk Based Assessments (“DBA”) and Maintenance Investigations (“MIVR”).  Mr Dorrington made it clear that if the outcome of either of those investigations is assessed as ‘unsatisfactory’ or even ‘Report to OTC’ then the Traffic Commissioner would welcome an additional response from the Operator directly to the Traffic Commissioner’s office to perhaps address any of the concerns/shortcomings raised by the DBSA and importantly, what the Operator is now doing to rectify some of those issues moving forward.  In reality, if the Operator can demonstrate that significant improvements have been made, then the Traffic Commissioners will take that extra response into account and this could make the difference between going to Public Inquiry or not.  Mr Dorrington gave a helpful tip on how to deal with the responses and said that Operator’s should use the “yellow brick road” methodology by responding to the shortcomings with “because, because, because, because, because” in mind!  The takeaway point here is to make sure that the responses are comprehensive and if you are making a point, evidence it.

8. Call to Public Inquiry

Mr Dorrington explained that if the dreaded call to Public Inquiry arrives, the Operator should not sit on their hands.  The strong message here was to get advice quickly and get the documents ready to submit to the Office of the Traffic Commissioner in accordance with the Case Management Directions.  The documents that are submitted in advance of a Public Inquiry is the Operator’s opportunity to show that they have made significant improvements – remember, that the Traffic Commissioner has to consider the Operator as at the time of the Public Inquiry and therefore any improvements that have been made since the issue causing the referral to the Public Inquiry is absolutely key.

9. Timings

Timings are very important. Operators cannot expect the Office of the Traffic Commissioner to send reminders to Operators as they simply do not have the resource.  Mr Dorrington explained they understand that there have been issues with the postal; service and particularly receiving letters/documents in a timely manner.  As a result, if there is a deadline stipulated in correspondence, the general rule of thumb at the Office of the Traffic Commissioner will extend that deadline by three working days to allow for the issues with the postal system.  However, our advice would be to stick within the deadline that you have been given as that extension is of course within the discretion of the Office of the Traffic Commissioner!  If you do receive any such correspondence with important dates noted, please do diarise those dates and seek advice from our Regulatory team who can work with you to ensure that the date is complied with.

Four points to think about

As a summary, the Traffic Commissioner asked that Operators think about the following four key points:-

1. Periods of Grace – The Traffic Commissioner explained that a Period of Grace is there for the Operator and are there for if financial standing or professional competence cannot be met. An Operator is entitled to a Period of Grace of up to six months if there is evidence that granting such a Period of Grace would be worthwhile.  The Traffic Commissioner made the point that the evidence is key and he would want to understand the issue and what the plan is moving forward.
2. Undertakings – This is a promise that has been made to a Traffic Commissioner by an Operator to do something. It is the Operator’s responsibility to diarise dates for undertakings.  If there is an issue in complying with an undertaking, then the Traffic Commissioner expects that the Operator writes in advance of the undertaking date to explain why that undertaking cannot be satisfied on time.  Mr Dorrington explained that an undertaking is given on trust and if that cannot be met then a fundamental finding with adverse consequences is likely to be made.
3. Correspondence/email addresses – This is a point that has been discussed on various occasions in the past, but Mr Dorrington made it clear again that it is the Operator’s responsibility to make sure that all contact/correspondence details are correct on VOL. The Traffic Commissioner made reference to the Upper Tribunal Appeal case of Philip Drake whereby the Operator had not kept their contact details correct on VOL which meant that the Operator’s Licence was revoked due to no response having been received from the Operator.  The Upper Tribunal upheld the revocation which serves as a strong reminder to make sure that all contact/correspondence details are correct on the Operator’s Licence through VOL.
4. Registered Services – Mr Dorrington reassured Operator’s that if they are struggling to meet journey requirements in accordance with the timetable due to roadworks and unplanned partial/full road closures then the Operator affected should contact the Traffic Commissioner to explain the issue and how this is affecting their services. The Traffic Commissioner does take sympathy with those sorts of situations and will remind the Operator of the fact that there is such a thing as “reasonable excuse” which will allow for the Operator to continue running under relaxed rules.  However, the Operator must document each issue stating what the problem is which has led to the inability to meet the timetable requirements and why the circumstances leading to that were unforeseen.  Again, this goes to the point that Traffic Commissioners expect a contemporaneous record.

Please contact our regulatory team here if you would like to discuss any of the above or require any advice.