Decision

Decision for Keith Board and John William Lyons

Published 9 February 2024

0.1 WESTERN TRAFFIC AREA

1. KEITH BOARD t/a KEITH BOARD TRANSPORT OH2010553

2. JOHN WILLIAM LYONS – TRANSPORT MANAGER

2.1 AT A PUBLIC INQUIRY IN BRISTOL 13 DECEMBER 2023

3. BACKGROUND

Keith Board is the holder of a standard international operator’s licence authorised for two vehicles and two trailers. Until very recently, the operating centre approved for use was Haymore Farm, Crewkerne. Two vehicles are shown as in possession; as will be seen, three were in use by the business at the time of a DVSA investigation in July 2023. The transport manager is John Lyons.

On 5 April 2023, this operator was requested by DVSA to send relevant compliance documentation to allow the enforcement agency to conduct a desk-based assessment. Documentation should have been received by 26 April. No response was forthcoming and a chase email was sent on 27 April. On 29 May, a reply was received from transport manager John Lyons. Mr Lyons appears to have included some maintenance documents but said that the tachograph raw data was unavailable due to a computer crash.

DVSA then chose to visit the operator. Traffic Enforcement Manager Andrew Ball attended on 7 July 2023 and Mr Ball completed his report on 10 July. Each area of non-compliance on the report generates a points score. Anything more than ten points generates a referral to my office. This operator scored forty-four. I made the decision to call the company to public inquiry to consider the compliance concerns. In parallel, I asked DVSA to conduct an investigation on another operator for whom Mr Lyons was acting as transport manager, Armishaws Removals Ltd. The outcome saw that operator called to the same public inquiry.

4. THE PUBLIC INQUIRY

Armishaws Removals Ltd attended represented by Harry Bowyer, barrister. I delivered an ex tempore decision. I record here the points which are relevant to Mr Lyons. A recent compliance audit had been conducted and submitted in advance. That audit report laid blame for all shortcomings at the feet of Mr Lyons who had subsequently been stood down as transport manager.

Keith Board, Lisa Board and Thomas Keal attended represented by Darren Finnegan, barrister. I was aware that it had been a late instruction. John Lyons attended unrepresented.

Proceedings were recorded and a transcript can be made available. In writing this decision, I have both referred to my written note and listened to the recording.

4.1 The evidence of David Armishaw (insofar as it is relevant to Mr Lyons)

Mr Armishaw told me that he was not happy with Mr Lyons’ performance as transport manager and had “stepped him down” from the role. It was too much for him. There was an issue with infringements of the working time directive. There was rarely missing mileage.

5. The evidence of Keith Board

Mr Finnegan accepted that the revocation threshold had been passed but he hoped to persuade me to step back from that. There was now only Keith Board driving so the self-employed driver matter fell away. There had been a number of pressures on the business with respect to finance. Mr Board has paid for support from Logico and from him. The second vehicle had gone through two gearboxes in quick succession (which was supported by entries in the bank statements). There was cash at the bank and the credit cards were not relied upon generally. If there were to be a curtailment to one vehicle and one trailer, the position was more comfortable. I asked about two transactions in September that had been reversed due to lack of funds. Mr Board told me that he had sustained two consecutive bad months. He passed up bank statements from earlier in the year which showed a more positive situation and confirmed further expenditure on a second gearbox.

Mr Board told me that he had been in haulage since he was a child. He had been driving for thirty-eight years. In 2007, he was granted his first operator’s licence. He let that lapse in 2012. He was an employed driver on European work from then until 2017 when he applied for a partnership licence. In 2018, he applied again and held the current licence. There had been no concerns with previous licences.

The work was European, for Airbus, travelling to Toulouse and then on to Spain.

The delayed response to DVSA was due to Mr Lyons not being available for personal reasons. He did attend when DVSA visited. Mr Board had not understood the seriousness of the desk-based assessment.

Traffic Examiner (sic) Ball had identified a number of shortcomings. There had been no driver induction or licence checks because the only other driver was Mr Board’s son. The drivers hours infringements were not being monitored because the software was not producing reports so the infringements could not be seen. There had been no data after August 2022 because the software program had failed. Mr Board had asked Mr Lyons for assistance but he had been unable to come over. Mr Board didn’t know what the best solution would be. He wasn’t technical-minded.

A diary was used to plan dates and he hadn’t felt the need for a forward-planner. The diary included explanations for infringements with printouts.

Mr Ball had visited Mr Board at his home, the establishment address. There had been no vehicles when he attended the operating centre because one was under repair at a workshop and there was further complicated explanation. He had not understood that there had to be an operating centre for trailers and it was only trailers that had been normally parked at the unauthorised operating centre. It had only been in use for weeks. I was taken to a submission from the landlord of the authorised operating centre saying that it was still in use.

Three vehicles were in possession because one was being broken for spares. The third vehicle had been marked VOR.

Stretched inspection intervals was down to the maintenance provider, Agricom. They would be unable to fit vehicles in. Inspections could be up to three weeks late. He had now changed maintenance provider and the new one keeps a planner of when vehicles are due. Agricom had their own brake tester. Mr Board thought the requirement was to brake test four times a year. He had left them to brake test when necessary.

There was only one inspection report for a trailer because two were VOR. There was only one inspection report for the Fruehauf bulker because that was now out on permanent hire and he was doing traction-only. A hire agreement needed to be drawn up.

No tachograph data had been sent to DVSA because there was no data. Mr Ball had advised a membership with RHA. They should have been doing the data downloads analysis. It was discontinued on 26 October. Trucks now had digital downloaders in the vehicles. A demonstration was due this week but his analysis subscription had expired. He did not know how to send tachograph raw data to someone else.

There were a large number of infringements because he did a lot of ferry movements and the tachograph did not understand ferry movements. Full infringement reports had not been generated because the RHA had not done them. He had reverted to only one vehicle on 10 October after the gearbox had gone again.

John Lyons did not have enough availability to visit and help and he had chosen to change transport manager. An application had now been made. He thought he had made the application earlier but he had been absent-minded.

He had changed maintenance providers because he wanted to be 100% legal. The new provider had a roller brake tester. Logico were now being used for tachograph analysis.

Mr Board told me that he had a contract coming up in the new year and he would need a second vehicle. Suspension of the licence would ruin him. I could trust him to be compliant because he had taken every step, every measure, going digital. Mr Keal would attend every week. He was young and keen and wanted to prove himself.

There had been no driver defects produced as he had used CheckedSafe for a month or 6 weeks, RHA had failed to keep or provide the records and the last four weeks’ worth were in the book in the Scania. From here on in, with Logico there would be digital driver daily checks.

I asked why nothing had been received until Monday when documents should have been lodged fourteen days ago. He had been a bit slow and had been waiting for the latest PMI for the Scania. Mr Board had been using his son as a self-employed driver, even after being advised otherwise by Mr Ball months earlier. Mr Board had attended an operator licence awareness course following the advice to do so from Mr Ball.

I asked why there was only one inspection report for the trailer. It was on 12-weekly inspections and had now been hired out. He had bought it in June and operated it until October which appeared to be sixteen weeks. Mr Board told me it had been MOT’d in September but I pointed out that the public record showed that the MOT was actually on 30 January 2023. Mr Board was adamant that it had been MOT’d but was unable to provide any supporting evidence either of the MOT nor its pre-MOT inspection. Mr Board had no access to the maintenance records of the third-party trailers he hauled; he “was not up to speed” and questioned whether that was really a requirement.  

5.1 The evidence of Thomas Keal, proposed transport manager

Thomas Keal told me that he started driving Class 1 in 2016. His father had been a driver. He had worked for numerous companies. He decided he wanted to be an owner operator and so sat the CPC in May 2022. Getting a transport manager role without experience was hard hence this application. Mr Keal was aware of the issues with this operation.

Mr Keal would have access to the Logico system and would visit Mr Board every week. He would review documents and keep him on the straight and narrow. He would plan ahead for a full year. He would speak to the maintenance provider to ensure vehicles were inspected on time. He was booked on to a refresher course in mid-January because Mr Board did European work and he wanted to be sure he knew how that worked. Mr Finnegan asked how Mr Keal would be able to discipline Mr Board, Mr Board being many years his senior. Mr Keal told me that he would tell Mr Board how it was and would resign if need be.

5.2 The evidence of John Lyons, transport manager

John Lyons told me that he started life as a meat trader and had been involved in the transport side. In 1988, he joined Framptons of Shepton Mallet where he did his CPC. He had run his own vehicles for a while with no issues. He had not taken a refresher for a very long time which was a mistake. He realised that when he took his refresher in May this year. His wife had become very ill at a relatively young age and had passed away two years ago. That had knocked him sideways and he had not been at the top of his game. He had given Mr Board some advice over the phone but not controlled him. It had been intended to be a temporary arrangement until Mr Board passed his exam but that hadn’t happened. It had been intended as a short-term arrangement but that hadn’t ended up being the case.

Mr Lyons went back to work in late 2022 as an assistant transport manager at Armishaws. They had then lost two transport managers in quick succession and he ended up taking on the full role. He accepted responsibility in part for Mr Board’s situation. Having sat a refresher course, he now felt that was necessary every two years and would undertake to do that.

Mr Lyons visited Mr Board once a month in reality. They would speak most weeks. He had suggested RHA some time ago once they had realised there was a problem with his computer. A fresh pair of eyes for Mr Board would be a good thing. He could be compliant. He had driven for Mr Lyons previously and had been very compliant.

He accepted that his repute had slipped to the point where it was seriously tarnished. Armishaws had helped him. The desk-based assessment was a real eye-opener.

Compliance had already slipped at Armishaws before he started as transport manager. He had to continue, initially at least, with the systems in place. Change had to be taken slowly to keep people with you. It was him who had pushed for electronic defect reporting. Mr Board’s driving licence had not been checked because he knew him. He had viewed the tachograph analysis on the screen to see driving times.

Mr Lyons was paid at “mate’s rates”. It was meant to be for a short period but it had drifted. He had always, though, been more than just a name on a licence. But with everything else going on, it had been the last thing on his mind. For the last five years, he just wanted to get through day to day. He accepted that he should probably have resigned. If he stayed at Armishaws, he would not want to be on any other licence.

5.3 Closing submissions on behalf of Keith Board

Mr Finnegan accepted that the persistent failures put this in the serious category and the revocation threshold had been passed. There were three areas to balance that. The first was the small scale of the operation. The second was that there had been improvement. The third was that there was an alternative regulatory option. Mr Finnegan didn’t seek to attach much weight to the scale point.

Many of the failures were down to informal arrangements. It was father and son, or just father. There had been no other drivers. In terms of changes having been made, it was not a situation where steps had been taken immediately. But steps had been made before the day of the public inquiry. Logico was now on board. Prior to that, he had engaged with RHA but that had not worked. The operating centre was applied for immediately. Driver licence checks had taken place and an OLAT attended.

Mr Finnegan accepted some difficulty in answering the Priority Freight question in the positive. He submitted that he could be trusted with condition for an audit and severe tarnishing of his repute. Mr Board should be given the chance, with the help of Logico and Mr Keal, to show that he could be trusted. A curtailment to one vehicle and one trailer would have a material impact on the business in relation to the new contract available in January. This was Mr Board’s first public inquiry. There were no maintenance prohibitions and one traffic prohibition relating to a personalised registration where the tachograph had not been changed. There was a 100% first time pass rate at MOT (but I noted that only two tests had been recorded over five years).

6. FINDINGS OF FACT

6.1 Keith Board

Mr Board entirely failed to comply with the tribunal directions. He was due to supply raw tachograph data to Mr Ball fourteen days before the inquiry. He never supplied that data. He told me that was because his software analysis package wasn’t working. I do not know whether he really believed that, but it is entirely irrelevant. The requirement was for the raw data which is one or a number of .ddd files. No analysis software is needed. A company card and download data is needed to get it from the driver card and vehicle unit to a computer. It is then simply a matter of attaching the files to an email addressed to Mr Ball and hitting send. No special software is needed.

I was provided, late, with some maintenance records. I challenged Mr Board at the inquiry for the reason that there was only one trailer record. He told me it must have been inspected because it was MOT’d in September on the back of the Scania. I have now had time to look in detail at the documentation submitted. The Scania was MOT’d on 8 September 2023. An invoice from Agri-Comm dated 15 September includes an item “Collect and deliver weight trailer for MOT” for which Mr Board was charged £94.50. That is entirely inconsistent with Mr Board’s explanation. However, there is also an invoice dated 14 September 2023 for a trailer safety inspection for C382727. There is no corresponding inspection report but there is an invoice. The invoice does not mention any MOT which is consistent with the public record for that equipment. So this is a mixture of positives and negatives. The trailer appears to have been inspected in line with the statement of intent but there is no inspection sheet and Mr Board was entirely wrong when he told me it went for test on the back of the Scania. It all paints a picture of complete disarray. Mr Finnegan told me that the wall planner even had the trailer MOT in September. It is chaos.

The DVSA report identifies a complete lack of compliance systems. Following my analysis of the trailer maintenance above, I adopt their findings. To spend a year unable to analyse tachograph data due to a software issue is frankly unbelievable. I heard a rather unlikely explanation for the parking of vehicles at an unauthorised operating centre. That matter has at least since been regularised.

There is something in Mr Finnegan’s submission that this is a small and informal operation, certainly when it was only Mr Board driving. I do not accept Mr Board’s assertion that he could just trust his son. I have seen many who have thought that. There must be processes in place to check.

But I am also drawn to a conclusion that none of this would have been allowed to happen if there had been a strong transport manager in place. Thomas Keal is a new transport manager, ambitious and keen to show that he can do the job. I believe it is possible that he could, with some external support, make this a single-vehicle operation I could trust to be compliant in the future. That position is backed up by the investment made for the public inquiry. Support of the like provided between them by Logico and Mr Finnegan runs to many thousands of pounds and that investment indicates that this operator’s licence does matter to Mr Board.

I am offered undertakings. One is for support from Logico. I am not told specifically what that support might be but it includes use of digital compliance systems and review meetings. I have drafted an undertaking which I believe should be acceptable to Mr Board and on which I rely to allow the operation to continue. The second undertaking is for a future compliance audit and I adopt that for nine months time in the now-standard form of words.

The regulatory action I take means that financial standing is now satisfied. I say for the record that I would have granted a period of grace as Mr Board demonstrated that financial standing had been met before significant expenditure on vehicle failures and on support for the public inquiry.

I put Mr Board on notice that should Mr Keal leave, or should I become aware that support from Logico is discontinued, he is likely to be recalled to public inquiry. He has come as close to revocation and disqualification as it is possible to come; the smallest matter could well tip the scales the other way. The previous failings remain on record. This decision does not wipe the slate clean; quite the opposite, in fact.

6.2 Transport Manager John Lyons

I fully accept that John Lyons has been through a very difficult time. I found him to be genuine and sincere. I had no reason to doubt that he was anything other than a man of his word. I explained to him that the only tool I had available to me was in relation to his good repute and that the Upper Tribunal had directed that good repute extends to a transport manager’s execution of his statutory duties.

I find that John Lyons largely left Keith Board to get on with the job as best he could – and that was not very well at all. Much of the responsibility for the negative findings above lies with Mr Lyons. He also was, at the relevant time, out of his depth with the Armishaws operation. Whilst I accept that matters there had clearly gone awry prior to his appointment as transport manager, the DVSA desk-based assessment found serious deficiencies. Over half of all safety inspection reports were not signed-off as roadworthy. There was a dearth of meaningful brake performance testing. There were no tyre pressures, no company stamp (and multiple maintenance providers), no ISO week.

I genuinely hope Mr Lyons can get back to being an effective transport manager but I must take action now to prevent that happening until he is good and ready. That inevitably means I must make a finding of loss of good repute.

7. DECISIONS

John William Lyons has forfeited his good repute as transport manager and is disqualified from acting as such until 19 July 2024 and until he has attended a further 2-day refresher course hosted by a transport manager CPC examination centre.

Pursuant to an adverse finding under s.26(1)(f), that the rules on drivers hours and tachographs were not observed, the licence is curtailed to one vehicle and one trailer immediately and indefinitely.

Thomas Keal is accepted as transport manager.

Administrative undertakings are added to the licence:

An audit shall be conducted by a competent independent person by 19 October 2024.  The scope of the audit shall include systems for the management of maintenance, driver licencing, drivers hours and working time and the role of the transport manager in line with the requirements of EU Regulation 1071/2009 and STC Guidance.  The audit report will be prepared, acted upon and retained for at least 2 years.  A copy of the report together with the operator’s plans for implementing any recommendations will be forwarded to the Office of the Traffic Commissioner by 30 October 2024.

The operator will engage the services of Logico to provide digital driver defect reporting, for tachograph analysis and to conduct quarterly compliance reviews with the operator and the transport manager, the first to take place by 19 February 2024. The operator may seek to be released from this undertaking after one year but only if there is strong independent evidence of a good degree of compliance. 

7.1 Kevin Rooney

Traffic Commissioner

19 January 2024