Decision

Decision for K West Transport Limited

Published 16 December 2022

0.1 IN THE NORTH WEST OF ENGLAND TRAFFIC AREA

1. K WEST TRANSPORT LIMITED OC2029917

1.1 TRANSPORT MANAGER: [REDACTED]

1.2 TRANSPORT MANAGER: ALAN GEOFFREY WOOD-TOWNEND

1.3 TRANSPORT MANAGER: ALAN ROBERT BIGWOOD

2. DECISION OF THE TRAFFIC COMMISSIONER

2.1 In the matter of the Goods Vehicle (Licensing of Operators) Act 1995

2.2 Public Inquiry held at Golborne on 28 November 2022

3. Background

K West Transport Limited (“The operator”) holds a standard national goods vehicle operator’s licence, OC2029917 in the North West of England Traffic Area authorising the use of 10 vehicles and 10 trailers with 9 vehicles currently in possession. The licence started on 19 February 2020.

The operator’s sole director is Krum Isporski. The current internal Transport Manager is Alan Robert Bigwood who was appointed on 21 September 2021.

[REDACTED] served as Transport Manager for the licence from 30 July 2020 until 18 September 2020. Thereafter Alan Geoffrey Wood-Townend was appointed as Transport Manager on 28 January 2021 until his removal from the licence on 21 August 2021.

The operator, [REDACTED] and Mr Wood-Townend were previously called to a Public Inquiry on 14 July 2021 to consider maintenance and load security issues, primarily relating to third party trailers. These issues were evidenced by several prohibitions and maintenance investigations undertaken by Vehicle Examiner Aspey, most recently in May 2021 that reached some unsatisfactory findings.

Questions also arose about whether there had been the premature and unauthorised use of a new operating centre and I allowed for that to be rectified by granting the relevant variation sought. The public inquiry did not consider issues of drivers’ hours management.

I refused a variation application to increase the number of authorised vehicles to 15 vehicles until I had received reassurances about the operator’s compliance. The operator has not renewed that application.

Formal warnings were issued to the operator and its then Transport Manager Wood-Townend. I took no action against [REDACTED] as, on the evidence before me at the time, I found he had not been in post of any meaningful length of time and could not be held accountable for any of the issues discussed at that hearing.

Three undertakings were offered by the operator and recorded on the licence, namely an audit, attendance at an operator licence awareness training course (“OLAT”) course by Mr Isporski and an agreement to cease the use of self -employed drivers by 31 October 2021.

The audit was completed on time but supplied late to my office. The OLAT course was also completed late and these delays resulted in a strong warning being issued.

TM Bigwood has not previously been called to a public inquiry.

Since the previous Public Inquiry in July 2021, the operator has been issued with further 14 roadworthiness prohibition and fixed penalty notices by the DVSA. Of these, six were ‘S’ marked and five were due to alleged insecure loads.

VE Aspey visited the operator on 24 November 2021 and again on 20 May 2022. On his first visit, two assessments were assessed “Report to OTC”, two were “Unsatisfactory” and one was “Mostly Satisfactory”. On his second visit, one assessment was assessed “Report to OTC”, one was “Unsatisfactory” and four were assessed “Mostly Satisfactory”. The operator also notified my office of two prohibitions issued.

I was also made aware of an investigation by DVSA Traffic Examiner Steven McKay in relation to the operator’s management of drivers’ hours. His investigation identified that several drivers working for the company had allegedly committed drivers’ hours infringements and made false records. There were roadside encounters where evidence was found of drivers failing to insert their digital cards into the tachograph device and other instances where it appeared that vehicles were used without them being specified on the licence and in excess of the number authorised.

The operator also notified my office of a conviction after it failed to provide the police with information to identify a driver under investigation for an offence. The operator was fined £666

These matters led to the operator and its previous and current Transport Managers being called to this public inquiry to consider if regulatory action was required.

4. The Call to Public Inquiry

The operator was originally called up to public inquiry by letter dated 30 July 2022. The call up letter gave notice that the grounds for regulatory action in Sections 26 and 27 of the Goods Vehicles (Licensing of Operators) Act 1995 were to be considered as well as the provisions for disqualification in Section 28 of the Act.

TMs [REDACTED], Wood-Townend, and Bigwood were called up by letter of the same date with notice given that consideration would be given to their position in accordance with Schedule 3 of the Goods Vehicles (Licensing of Operators) Act 1995

The inquiry was originally listed for 4 August 2022 to follow driver conduct hearings for the drivers identified as having committed infringements. Unfortunately, as an interpreter could not be found for that date and the public inquiry was postponed (a case management hearing was heard instead). The public inquiry was refixed for 28 November 2022.

5. The Public Inquiry

The Public Inquiry was heard at Golborne on Monday 28 November 2022.

The operator was represented by Mr Isporski as its director, the current Transport Manager, Mr Bigwood and Martin Haralambov, its Operations Manager. They were legally represented by Scott Bell of Backhouse Jones solicitors. Transport consultant Grahame Robinson also attended on behalf of the operator. A Bulgarian interpreter attended to assist Mr Isporski.

[REDACTED] attended but was not represented.

VE Aspey and TE McKay appeared as witnesses for the DVSA.

Mr Wood-Townend did not attend. He responded to the call up letter by asking that his attendance be excused. He explained that he had taken early retirement [REDACTED]. For the same reason he said he was unable to attend the public inquiry. After the inquiry was adjourned, Mr Wood-Townend was asked if was able to attend the new date but again responded that [REDACTED] and repeated his intention not to return to the industry.

Whilst I sympathise with Mr Wood-Townend’s position, I consider he had been given sufficient notice of the hearing [REDACTED]. I do not consider the explanation put forward is a good enough reason to explain Mr Wood-Townend’s absence.

I considered the guidance offered by the Senior Traffic Commissioner in Statutory Document Number 9 and specifically the contents of Paragraph 33 of the same, “In line with most tribunals there is a rebuttable presumption that a hearing will proceed as listed even in the absence of parties provided that: the traffic commissioner is satisfied that the party has been given the required notice, has been served with sufficient evidence, and that there are no other factors where the interests of justice require an adjournment.”

I am satisfied that Mr Wood-Townend is aware of the hearing and has been given sufficient opportunity to attend. I am also satisfied that he would not attend at a future date even if the matter was delayed further.

Mr Bell on behalf of the operator and [REDACTED] did not raise any objections to the matter proceeding in Mr Wood-Townend’s absence. However, Mr Bell properly identified the concern that this would limit the evidence available in relation to events during Mr Wood-Townend’s tenure.

I did not consider the interests of justice required an adjournment and I directed the hearing proceeded in Mr Wood-Townend’s absence.

6. Driver Conduct Hearings

Driver conduct hearings arising from the DVSA traffic examiner’s investigation were held on 1 August 2022 and 2 August 2022. Mr Bell observed the hearings on behalf of the operator and was allowed to put questions to the drivers as appropriate.

I considered the position in relation to 11 drivers (a further 5 drivers did not attend, and hearings have yet to be rearranged for them). Most of the drivers faced allegations that they had driven vehicles for the operator without a card inserted into the tachograph device. The allegations were founded on evidence that the driver’s card had been ejected after a period of driving and a short time later the driving of the vehicle resumed without a card inserted (in some cases the allegation was that the period of “no card” driving had immediately preceded the driver’s card being inserted). The motive alleged was that the drivers would have exceeded the limitations on driving and rest periods had they continued.

None of the drivers admitted they had driven without a card. They mostly argued they had been relieved by another unknown driver having reached the limit of their permitted driving time (or had taken over from another driver) and that person was responsible for the offence. In the cases of 8 drivers, I found the allegation was not proved as the interval between their cards being ejected and the “no card” driving commencing was too great to exclude the possibility that another driver had taken over (and vice versa in the cases where they claimed to have taken over from another driver). However, in 2 cases I was satisfied on the balance of probabilities that it was the driver before me who had continued to drive without their card inserted on the basis that the change had been immediately (i.e., within a minute). I suspended the vocational entitlements of those 2 drivers for 6 weeks and 10 weeks respectively.

I did not hear any evidence from the drivers that the operator or its managers had actively instructed them to drive without cards inserted or to otherwise commit drivers’ hours infringements. It is however relevant to note that the drivers did give the impression that it was common practice for them to be relieved by another driver as they could not complete their journey within their permitted hours.

7. Evidence

In advance of the public inquiry, the operator submitted evidence of its current compliance and this was examined by VE Aspey and TE McKay.

TE McKay found that the drivers’ hours documentation only revealed minor infringements in recent months with the exception of 7 instances where fortnightly driving time had been exceeded.

VE Aspey also confirmed that the maintenance documentation was generally satisfactory although he noted the absence of evidence of brake testing. Both examiners indicated that they felt improvements were continuing but slowly.

The operator’s evidence was mainly provided by Mr Haralambov and Mr Bigwood although I did also hear from Mr Isporski. His evidence as director opened with an admission that he tried to “stay away” from managing the operator’s licence and focused instead on the commercial aspect of this business. This was reflected in the other evidence that I heard that clearly indicated that the vehicles and drivers were largely managed by Mr Haralambov and Mr Bigwood. Mr Isporski said that he was aware of issues such as the missing mileage and load security and would be involved in discussions about matters such as driver discipline.

It was conceded that the operator knew it had an issue with unaccounted mileage and managing drivers’ hours. Some of this was attributed to drivers inflating their hours for payment. They also faced a difficulty initially that their analysis software was not identifying missing mileage. This was addressed by engaging an external analyst service.

The witnesses said they had taken steps to address the issue but accepted that they could have taken more robust action sooner, especially in relation to disciplining drivers.

The conviction for failing to identify the driver followed a delay in Mr Bigwood being made aware of correspondence from the police. The delay appears to be because of post opening processes at the offices. Mr Bigwood assured me that he had been able to identify the driver concerned and had responded to the police but as the reply was too late, the operator was prosecuted. Mr Bigwood had attended court for the operator and pleaded guilty. I consider that is an isolated incident that is not of significance in determining the wider issues under scrutiny. I do however remind the operator it must ensure it updates its contacts details so that correspondence from enforcement agencies can be received promptly and dealt with appropriately.

Mr Bigwood accepted responsibility for one of the instances when it appeared a vehicle had been operated in excess of the operator’s authority. On 11 October 2021 the DVSA encountered a vehicle that was being operated by K West but was not specified on its licence that at the time and that had the maximum number of 10 vehicles recorded with no margin. Mr Bigwood explained he had failed to add the recently acquired vehicle to the licence to replace another specified vehicle that was no longer in use. This gave the impression of unauthorised operation. There were also other instances where confusion had arisen about the use of vehicles rented out to other operators to pull the operator’s trailers and drivers believing they were driving for K West when working for sub-contractors. The operator maintained it had not operated vehicles in excess of its authority at any time.

The operator confirmed it had taken the steps promised at the last public inquiry to address the load security and trailer maintenance issues by investing in acquiring its own trailers. Only around 15% of the work now involves third party trailers. Whilst this is a positive development, it has not been without issues. Some of the trailers acquired appear to be XL rated but the validation plates had been painted over when removing the previous owner’s branding. As a result, the XL rating was invalidated, and the trailers were subject to the load securing requirements for standard curtainside vehicles. Although the loads being carried were cornflakes and other items called as “light palletised” loads, the pallets still required greater strapping than was evident on the 5 DVSA encounters considered at the hearing. I accept the operator’s submission that although there was evidence that the loads had not been secured in accordance with current guidance, it was not suggested that any load shifting, or tangible danger had resulted from the incidents.

The operator attributed the absence of any further load security prohibition since 22 March 2022 to the work it has done to train drivers. The issue with the XL plates has also been addressed. Drivers are being encouraged to report and photograph any concerns they have with the securing of pre-loaded consignments. That is a positive step, but I did discuss with the operator’s representatives at the hearing as to how random checks by managers themselves might provide further reassurance.

Mr Bigwood told me the operator had faced considerable challenges arranging brake testing during the pandemic and subsequently. It has now purchased a mobile roller brake tester and will commence testing at the frequency recommended by the Guide to Maintaining Roadworthiness.

8. Consideration

9. The Operator

The documents presented in advance of the hearing together with the evidence heard at the public inquiry lead me to the following findings:

• I do not find that there has been operation of more vehicles that the maximum number on the licence in practice. Nevertheless, I do find that the operator drew suspicion onto itself in relation to this issue with some poor practice around the management of vehicles and drivers.

• The operator has been convicted of a relevant offence, received prohibitions, and fixed penalty notices in the period since the last public inquiry. These satisfy the grounds for regulatory action in Sections 26(1)(c) and 26(1)(ca) of the Act.

• The evidence of the unaccounted mileage (especially that attributed to driving without a card inserted) together with the evidence of prohibitions leads to my finding that the operator has not honoured its undertakings to keep vehicles fit and serviceable or to ensure the rules on drivers’ hours and tachographs are ensured. Consequently, the grounds for regulatory action in Section 26(1)(f) of the Act are satisfied.

Having reached the findings of fact recorded above, I have considered the balancing exercise and have considered the positive and negative features by reference to the guidance in the Senior Traffic Commissioner’s Statutory Document Number 10.

The positive features that I identify are:

• There do appear to be appropriate systems and procedures in place to prevent operator licence failings although it is questionable management control has been as effective as expected in the past.

• There are good analysis procedures in place to detect falsification, drivers’ hours and/or Working Time Directive infringements.

• There was insufficient evidence that the unaccounted mileage was attributable to widespread intentional falsification.

• There is evidence of driver staff training with appropriate monitoring and disciplinary procedures in place

• Some changes have been made with tangible evidence in support, to ensure compliance

• Operator co-operated with enforcement investigation

• The prohibition rate is improving and is now close to the industry average (with Mr Bell arguing this is all the more an achievement given the significant number of roadside encounters involving the operator’s vehicles).

These positives must be balanced with the following negative features:

• Up until the last 6 months or so, there was persistent offending and infringements.

• The substantial numbers of previous prohibitions and fixed penalty notices continued after the public inquiry in July 2021 until an improvement earlier this year.

• Whilst systems described as “good” and “robust” are in place, the encounter history calls into question the effectiveness of management control and use of those systems to prevent operator licence failings such as non-compliance with drivers’ hours.

• The prohibition rate previously was unacceptably high.

• The warning issued at the 2021 public inquiry. Although improvements had been made since, I am concerned that they did not take effect soon enough thereafter and many issues remain to be fully addressed.

Having balanced these features and focussed on my perspective of the operator’s current compliance, I determine that this is a case that falls in the category of “severe to moderate” for the purposes of assessing the starting point for regulatory action. I add the observation that had I been considering this matter in the more immediate wake of the DVSA investigation, it is likely that I would have found fewer positive features and more serious regulatory action would have ben considered. To its credit the operator has used the delay in the matter coming to hearing to demonstrate positive changes in tis approach to compliance.

I have gone on to consider the Priority Freight question of whether I can trust the operator to be compliant in future? I do answer that question in the affirmative but not without reservation.

I take reassurance from the systems that are evidently in place and the signs of improvement in several aspects of compliance. I remain concerned about the slow rate of improvement since the last public inquiry and whether Mr Isporski is exercising sufficient oversight of the transport managers and other managers in the business to ensure they address the compliance issues. More focus and urgency is needed to ensure the operator avoids a third public inquiry. I repeat the warning I gave Mr Isporski at the conclusion of the hearing that the operator cannot afford to be called up before me again.

The warning issued at the last public inquiry appears to have had some limited effect but the matters that have arisen since and the delay in effecting a real step change in compliance persuades me that this is an appropriate case to apply some disciplinary action. This is for the purpose described in the judgment of Thomas Muir (Haulage) Limited (1999) SC 86 as “deterring the operator or other persons from failing to carry out their responsibilities under the legislation”. Mr Bell in his closing submissions presciently acknowledged that this may be a case where I felt a “short sharp shock” was necessary to ensure the operator understands the expectation of future compliance. The operator did not seek to argue that a time limited restriction of its operation was likely to have fatal consequences to the business.

I consider that the appropriate and proportionate regulatory action in this case should take the form of a curtailment for 28 days whereby the operator is restricted to operating only 6 vehicles (representing a reduction by a third of its current number in possession). The operator must identify the vehicles that are to be taken out of operation during that period of curtailment and they must be parked up and not used under any other operator’s licence.

I take some reassurance from the willingness of the operator to offer the audit and brake testing undertakings recorded above. I note the previous audit was delayed in this submission and I issue a clear warning that must not be repeated when the next audit falls due. I also note that Mr Bell conceded that in view of Mr Robinson’s continuing provision of support and guidance for the operator, it would not be appropriate for him to complete the next audit.

9.1 [REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

9.2 Former Transport Manager Alan Geoffrey Wood-Townend

In correspondence sent before the hearing, Mr Wood-Townend suggested he had been working from home during the pandemic and [REDACTED]. When they were called back to their workplaces in mid-2021, it was decided that [REDACTED], and he took early retirement. This was shortly after the previous public inquiry in July 2021.

Mr Wood-Townend submitted that he felt that in the period of time that he worked for K West Transport (which he described as “short”), he put in place some good improvements which were acknowledged by VE Aspey in his findings in March 2021 and May 2021.

Mr Wood-Townend highlighted the changes that he claimed to have made including regular downloads of drivers’ cards with disciplinary action for those identified to have infringed. He also arranged for warning letters to be issued to all drivers in English, Bulgarian and Romanian in relation to the various compliance issues they were causing.

Finally, Mr Wood-Townend said he had retired from all forms of work to the extent of not renewing his own vocational driving licence.

A formal warning was recorded against Mr Wood-Townend at the previous public inquiry in July 2021. As he departed his role so soon after that hearing, I do not consider he should be held accountable for the more recent issues considered at this hearing. The issue that was not previously considered was Mr Wood-Townend’s accountability for the missing mileage incidences in the autumn of 2020 and spring of 2021.

TE McKay confirmed that when he completed his initial visit report audit form on 25 August 2021, he found the management system to be mostly satisfactory and worthy of being described as “robust”, albeit at that time he was unaware of the data that showed the extent of the unaccounted mileage. The systems at that time were attributable to Mr Wood-Townend as Mr Bigwood was in the process of taking up his post.

Mr Wood-Townend was not formally interviewed as he had left his post before the DVSA investigation concluded. The operator’s evidence today was although Mr Wood-Townend was not formally recorded on the licence as Transport Manager until January 2021, he had been undertaking that role since around the autumn of 2020 following the vacancy created by [REDACTED]’s removal.

The instances of unaccounted mileage that arose in the autumn of 2020 and spring of 2021 therefore happened on Mr Wood-Townend’s watch. I did see evidence that he was aware of the issue and took some steps to address it including terminating the engagement of some drivers and issuing warnings to others. However, I question the effectiveness of the steps taken by Mr Wood-Townend as it is clear the problems persisted for several months without significant improvement. I also did not hear any evidence to suggest that Mr Wood-Townend had raised any concerns about the extent of the unaccounted mileage and poor driver practices with Mr Isporski as the director.

This is not a case where I find that Mr Wood-Townend failed to ensure proper systems for management of drivers’ hours were in place. However, I find that he did fail to use those systems to best effect to ensure compliance with the driving hours rules are retained and this allowed persistent infringements to be repeated. This does call in question Mr Wood-Townend’s good repute.

It is also a concern that Mr Wood-Townend did not attend the hearing. Ordinarily that in itself would lead to consideration of a loss of repute. However, I balance this with the fact that Mr Wood-Townend did not wholly ignore the call up and did respond with written submissions. I also do not have any reason to doubt his assurance that he has retired and has no intention of returning to the industry.

For these reasons, I find that Mr Wood-Townend’s good repute is tarnished by the manner in which he undertook his role as Transport Manager for the operator but, by a slim margin, I determine it is not lost. I direct a formal strong warning on Mr Wood-Townend’s record. I further direct that in the event of any future application by him to be appointed as Transport Manager, the application is referred to a Traffic Commissioner with the expectation that Mr Wood-Townend will need to attend a hearing to satisfy of his current good repute and professional competence.

9.3 Transport Manager Alan Robert Bigwood

Mr Bigwood has been the operator’s Transport Manager effectively since August 2021 and after the last public inquiry.

Both VE Aspey and TE McKay confirmed that since that date the operator’s standards of compliance have improved albeit slowly.

Although the instances of unaccounted mileage are significantly decreased from those found during the DVSA analysis of the date for 2020 and spring 2021, there are still more recent examples of large unaccounted distances, and the problem has not been eradicated.

As noted above, Mr Bigwood accepted responsibility for one of the instances when it appeared a vehicle had been operated in excess of the operator’s authority on 11 October 2021. Mr Bigwood’s role as an external Transport Manager for one of the sub-contractors makes it all the more imperative that he ensures record keeping is impeccable and clear distinctions are kept between the operation of vehicles by different entities.

It is also a concern that there have bene further instances of load security prohibitions with 5 further such instances since the public inquiry in 2021. It is noted that 4 of those were later in 2021 and there has not been any further load security prohibition since March 2022. This suggest that Mr Bigwood’s efforts to tackle that issue have now been fruitful but also raises the question of whether he could have acted sooner. That is a question that applies more widely to other aspects of the operator’s compliance.

The comments made above about the positives and negatives of the operator’s position apply equally to Mr Bigwood as the incumbent Transport Manager. Whilst it is right, he should have credit from the improvements he has made, I do find they have not been implemented with sufficient pace and effect to deliver the significant movement needed towards full compliance. For example, whilst the last security issues appear to have now been addressed, it is unacceptable that was only after a further 5 prohibitions following the public inquiry when that issue was considered.

For these reasons, I find that Mr Bigwood’s good repute is tarnished but not to an extent where I consider it should be found to be lost. I direct a formal warning on Mr Bigwood’s record. That warning means that he must ensure that steps are taken to address any continuing use with unaccounted mileage and drivers’ hours compliance, prohibitions and authorised operation of vehicles as discussed at this public inquiry. If evidence were to come to light that those issues are persisting or other examples of non-compliance, Mr Bigwood can expect to be called back to public inquiry when his repute and competence would be considered again.

Gerallt Evans

Traffic Commissioner for the North West of England

5 December 2022