|
Office of the Traffic Commissioner (South East)
(Office of Traffic Comm) Tuc Tuc Ltd - Decision of the Traffic
Commissioner - South Eastern & Metropolitan Traffic Area
PK1047478 : TUC TUC LTD
Decision
1. On a finding that Tuc Tuc Ltd no longer satisfies the requirement to be of appropriate financial standing, the Public Service Vehicle Operator's Licence is revoked.
2. On a finding that the operator has failed to operate a local service registered under Section 6 of the Transport Act 1985, a penalty of £450, multiplied by the total number of vehicles which Tuc Tuc Ltd is licensed to use under all the PSV operator licences held by it, is imposed.
3. As Tuc Tuc Ltd is authorised to operate 30 vehicles the total financial penalty which is imposed amounts to £13,500.
4. In light of the revocation of the operator's licence set out above, it is unnecessary for me to consider imposing a condition under Section 26 of the Transport Act 1985.
5. In coming to my decision, I have taken account of the mitigation put forward on behalf of the operator.
Background
6. Tuc Tuc Ltd holds a Standard National Public Service Vehicle Operator's Licence which authorises the use of 30 vehicles.
7. Various undertakings are attached to the licence, one of which is that in using rickshaws, the operator must comply with Sections 2 and 6 of the Transport Act 1985 (as amended) in regards to local service registration.
8. The Company's operator's licence was granted following a public inquiry in October 2005.
9. A further public inquiry was convened in October 2006 for the then Traffic Commissioner to consider evidence concerning the operator's failure to operate services in accordance with its registered particulars.
10. The Traffic Commissioner imposed a penalty totalling £16,500 but on appeal, that sum was reduced to £8,000, the operator being given credit on appeal for the "start up uncertainties" facing an" unconventional operation", whilst focussing the operator's attention on the need to achieve an acceptable standard of reliability in the future. The Transport Tribunal also reminded the operator that it must be aware of the likelihood of further monitoring and of the need to comply with timetabled services.
11. Follow up observations were conducted by a bus compliance officer employed by the Vehicle and Operator Services Agency to check whether Tuc Tuc Ltd was operating within the regulations and adhering to the undertakings imposed upon the grant of the operator's licence in 2005.
12. The report prepared by the bus compliance officer indicated that few vehicles were operating on his first visit and that on his second visit no vehicles were observed to be operating.
13. As a result of the bus compliance officer's report and the ensuing documentation supplied by him,it was decided to call Tuc Tuc Ltd to a public inquiry as the operator appeared to have cancelled an all year round service without cancelling the registration.
The Public Inquiry
14. The Public Inquiry was held in Eastbourne on 22 January 2008.
15. The operator was represented by its director Mr Dominic Ponniah who attended in person.
16. Bus compliance officer Lance Cheetham appeared to give evidence on behalf of the Vehicle and Operator Services Agency.
Considerations and Findings
17. In this case, I have to consider whether I should take any action against the operator under Section 17 of the Public Passenger Vehicles Act 1981 or make a direction under Section 26 of the Transport Act 1985 or under Section 155 of the Transport Act 2000.
18. In coming to my findings, I have taken account of the evidence given by bus compliance officerLance Cheetham. I have had particular regard to the following :-
a. Mr Cheetham visited the Brighton area on 29 August 2007 and on 4 September 2007. At that time, the service which was registered with the Office of the Traffic Commissioner was a flexible service and he found it difficult to conduct a structured monitoring programme of the services provided by the operator. The visits which Mr Cheetham made were, therefore, random visits and he recorded details of vehicles in operation and he visited known booking sites in order to observe procedures for accepting and executing booking requests.
b. Mr Cheetham related the details of his visit of 29 August 2007. He only observed one vehicle operation at 11.30 hours. When he travelled to Brighton Marina at 1300 hours on the same day, there was a vehicle parked up with a sign reading "book here". This appeared to be the booking office to enable face to face transactions to take place. Only one party of three people were observed who appeared to make a booking. No other activity was observed during the monitoring period which concluded at 1530 hours.
c. At his visit on Tuesday 4 September 2007, the booking office which had been previously observed was no longer in place. No vehicles were observed during Mr Cheetham's journey to Brighton town centre.
d. On returning to Brighton Marina at 1430 hours on 4 September 2007 neither Mr Cheetham nor Traffic Examiner Andy Trickett observed any vehicles nor were any representatives from the Company present at the premises. From information received, it appeared that the Tuc Tuc service had been withdrawn and that drivers had been laid off.
e. Mr Cheetham stated that as a result of the withdrawal, it was not possible to obtain a clear overview of how the service was operating (if at all) and whether it was adhering to the undertakings which were attached to the operator's licence. The interior of the vehicles could not be checked to see if the tariff guide was clearly visible to passengers as the service had already ceased by the time he was in a position to carry out such an examination.
f. According to Mr Cheetham, it was clear that there were issues surrounding the place where the Tuc Tuc vehicles were parked. The Marina appeared to be the only site where a booking office was available.
g. Mr Cheetham continued that the operating centre situated at the Marina was a post office box and lock up where the vehicles were securely stored.
h. Tuc Tuc Ltd did provide information requested by Traffic Examiner Trickett by letter and Mr Cheetham was able to examine those records on 17 September 2007. He outlined the ways in which bookings were made and he stated that the majority of records were not complete in full, there was often passenger detail missing and it was not clear which vehicle had been used for a particular journey. On the majority of occasions, the passenger did not sign acceptance of the Company's terms and conditions.
i. The Company did, however, appear to be keeping records for every journey made and it may have been down to the individual taking the booking which resulted in the incomplete records of bookings.
j. When questioned by Mr Ponniah, Mr Cheetham confirmed that he had not seen any actual bookings made although the record sheets which he had seen were missing essential details and the reason for this may have been down to those who took the bookings at the booking office.
19. The evidence of the Director of Tuc Tuc Ltd, Dominic Ponniah, comprised his oral testimony and the contents of part of a statement which he declined to read in full at the Public Inquiry as he submitted that it contained confidential legal information and financial information. I have had particular regard to his evidence as follows:-
a. As the Director of Tuc Tuc Ltd, Mr Ponniah gave brief details of the background to the Company's existence and as to the events which led to the operator registering a flexible service in 2007.
b. Mr Ponniah maintained that the operation which he envisaged did not sit easily within the Regulations governing public service vehicle operator licensing.
c. Mr Ponniah outlined in camera the detailed reasons for the suspension of the service during August 2007 which related to insurance matters. He gave this evidence in camera since he believed that such issues were both confidential and that there were legal reasons for not giving such evidence in public.
d. Mr Ponniah then described events following the suspension of the service, also in camera.
e. Finally, in camera, Mr Ponniah set out the Company's current financial position.
f. Mr Ponniah concluded that he accepted that the framework within which Tuc Tuc Ltd had attempted to operate was not appropriate. He called for a change in the law to make specific provision for "alternative" and "novelty" transport.
g. Finally, Mr Ponniah maintained that the regulatory regime to licence such operations should be designed to encourage enterprise and consumer choice "in an environment that supports businesses and helps them thrive, whilst safeguarding public safety and confidence".
h. Mr Ponniah confirmed that from May 2007 he had been operating one flexibly registered service entitled "Freedom Ride". Mr Ponniah further confirmed that he did not notify the Office of the Traffic Commissioner when he ceased running the service in August 2007. He stated that for the reasons which he had given in his evidence in camera, this service had been suspended rather than cancelled. The Company did not notify the Traffic Commissioner's office of the cancellation of the service until October 2007 which resulted in the formal cancellation of the service, having given 56 days notice, on 21 December 2007.
i. Mr Ponniah accepted that he had not complied with the law since he had not given the statutory 56 days' notice of cancellation of the service. He further accepted that he had not written to the Office of the Traffic Commissioner in Eastbourne until after he had suspended his service.
j. Mr Ponniah continued to maintain that his Tuc Tuc service was not covered by the public service vehicle operator licensing legislation. The law was "inadequate for what we want to do".
k. Having given further evidence in camera, Mr Ponniah concluded by stating that no member of the public had been adversely affected by the suspension of his servcie and he accepted the inevitability of some of the findings which, having heard evidence in camera, I was bound to make.
l. Having indicated that he no longer wished to hold an operator's licence of this nature in the South Eastern and Metropolitan Traffic Area, Mr Ponniah stated that Tuc Tuc Ltd would abide buy whatever formality I had to follow; that was a decision for me.
20. In coming to my decision, I have balanced the evidence of bus compliance officer Cheetham with the evidence of Mr Dominic Ponniah, the Director of Tuc Tuc Ltd.
21. Mr Cheetham's evidence is clear in that having been instructed to go and check on the reliability of the flexibly routed service which had been registered with the Office of the Traffic Commissioner since May 2007, he was unable to verify the way in which that service was run. Mr Cheetham discovered this on his visit at the end of August 2007. In the following week, Mr Cheetham discovered that the service had ceased to run, there was no booking office, and it appeared that to all intents and purposes, the Operator had cancelled the service which he had registered without giving any notice to anybody. In addition, publicity had appeared in the local newspaper indicating that the service had been cancelled.
22. Given Mr Ponniah's acceptance that he failed to give the required 56 days notice to cancel a service registered under the Transport Act 1985, the only question which I must determine is whether Tuc Tuc Ltd has a reasonable excuse for cancelling or suspending its service without giving the appropriate 56 days notice.
23. Mr Ponniah's evidence as outlined in his written statement and in his oral evidence clearly focuses upon a set of circumstances, which whilst not exceptional in themselves, do provide some mitigation for his actions.
24. Having said that, Mr Ponniah's failure to notify the regulatory authorities (VOSA and the Office of the Traffic Commissioner) of the suspension of the service which subsequently resulted in its cancellation, are in clear breach of the Regulations.
25. Accordingly, I have made the following findings :-
a. Tuc Tuc Ltd has, without reasonable cause, failed to comply with Section 6 of the Transport Act 1985. Whilst I understand the reasons why Mr Ponniah may have suspended or cancelled his service at short notice, no application for short notice suspension or cancellation was made and the operation simply "stopped".
b. As to the other matters raised in the calling in letter and at the Public Inquiry, Mr Ponniah gave no explanation as to why he failed to comply with the undertaking to comply with the provisions of Sections 2 and 6 of the Transport Act 1985 (as amended) in regard to local service registration. Accordingly, having failed to comply with those undertakings, he has rendered himself liable to a direction under Section 17(3)(aa) of the Public Passenger Vehicles Act 1981.
c. I make no finding against the operator's good repute or professional competence, but having considered the evidence before me in camera, I make a finding that the operator no longer satisfies the requirement to be of appropriate financial standing under Section 17 (1) of the Public Passenger Vehicles Act 1981.
26. In coming to my decision on the question of whether to impose a financial penalty against the operator for failing to comply with Section 6 of the Transport At 1985, I have had regard to Tuc TucLtd's current financial position as stated to me by Mr Ponniah. I have received no documentary evidence relating to the Company's financial standing.
27. The admission by Mr Ponniah that the Company is no longer able to meet its requirement to be of appropriate financial standing, means that the operator's licence must be revoked in accordance with Section 17(1) of the 1981 Act.
28. Whilst the imposition of a financial penalty may cause difficulties for Tuc Tuc Ltd, it is quite clear that the Company, through Mr Ponniah, whilst attempting to run a business licensed under the Public Service vehicle operator licensing legislation, has failed to observe the regulations which govern such services.
29. Mr Ponniah has given reasons as to why services were suspended or cancelled at short notice, and I am able to give him a small amount of credit for attempting to operatea service which, with hindsight, was doomed to failure given the nature of its operation.
30. Accordingly, I have not imposed the maximum penalty, but I have decided upon a penalty, which in my judgement is proportionate to the facts of this case.
31. In the circumstances, I deem it inappropriate to make any further direction.
P K Brown, MA, LLB,
FCILT TF OR UM
Traffic Commissioner
South Eastern and Metropolitan Traffic Area
29 January 2008
GNN ref 157185M
_________________
IDFIMH
|
Login
Register
FAQ
