Decision

Decision for Malcolm Wragg and Anne Wragg

Published 12 April 2024

0.1 IN THE WEST MIDLANDS TRAFFIC AREA

1. MALCOLM WRAGG & ANNE WRAGG T/A M J WRAGG OD1092516

2. TRANSPORT MANAGER MALCOLM WRAGG

3. CONFIRMATION OF THE DEPUTY TRAFFIC COMMISSIONER’S DECISION

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This case is called Case called under Section 26, 27, 28 and Schedule 3 of the Goods Vehicles (Licensing of Operators) Act 1995. The operator holds a standard national licence authorising four vehicles and eight trailers.  This applicant has applied to vary the licence to add a new operating centre; interim authorisation has been granted.

Attending Public Inquiry on 16th January 2024 was Malcolm Wragg, Anne Wragg, represented by Millicent Dooher from Smith Bowyer Clarke solicitors.

4. Background

The DVSA carried out a desk-based assessment (DBA) of this operator dated 13th December 2022 (B4 in the bundle), following the apparent use of vehicle MK62 KAX without an annual MOT test certificate.  The outcome of the DBA was unsatisfactory.  Of the 16 areas considered, 10 were found to be unsatisfactory, one disclosed issues, and another required advice.

The operator responded and the response was found to be satisfactory (B26 in the bundle).

An unannounced DVSA maintenance investigation was triggered by the DBA (B81 in the bundle).  The report dated 29th June 2023 records an unsatisfactory finding and discloses numerous concerns:

• Use of an unauthorised operating centre.

• No evidence of brake testing.

• Driver detectable defects found at PMI.

• PMI frequency not adhered to.

• PMI sheets incorrectly completed and out of date.

• Evidence that driver defect reports are not completed properly and missing defect reports.

• Inadequate maintenance facilities.

• No evidence of wheel torque and tyre inspection records being used.

• No evidence of load security arrangements and driver training.

• Prohibitions were issued on vehicles inspected.

• Records of false VOR status for vehicle MK62 KAX; which was identified from tachograph data and ANPR as being used during the VOR period.

• Concerns that the Transport Manager did not have effective control.

The operator responded was submitted suggesting systems and arrangements have been created/put in place since the DVSA investigation.

5. Areas for Consideration at Public Inquiry:

The issues for concern for this Public Inquiry are:

• Section 26(1)(a) - unauthorised operating centre.

• Section 26(1)(c)(iii) – prohibitions.

• Section 26(1)(f) - not honoured undertakings signed up to when applied for licence: vehicles would be kept fit and serviceable; observe the rules on drivers’ hours and tachographs and keep proper records; drivers would report promptly any defects or symptoms of defects that could prevent the safe operation of vehicles and/or trailers, and that any defects would be promptly recorded in writing; informed of changes affecting the licence.

• Section 26(1)(h) - material change: that you may no longer meet the requirement to be of appropriate financial standing or that you continue to be professionally competent.

• Section 27(1)(a) – concerns regarding the operator’s repute.

• Section 27(1)(b) – concerns regarding whether the Transport Manager meets the requirements.

• Section 28 – Disqualification.

In respect of Mr Wragg’s position as Transport Manager, I will also consider his repute and professional competence.

6. The Hearing

Financial documentation received prior to the hearing confirmed that finance is met.

Maintenance documentation was provided to DVSA. Vehicle Examiner Rees provided me with a supplementary statement dated 5th January 2024.  He concluded that “Since the initial visit, documents have been provided which show improvements have been made in some areas, but there is still evidence of shortcomings.”

VE Rees attended Public Inquiry and gave evidence before me issues identified on MIVR show maintenance facilities are inadequate, with evidence that Weston Garage is still being used in the recent documentation.

In relation to brake testing, he reminded me that the DVSA Guide to Maintaining Roadworthiness advises at least 4 laden brake tests throughout the year, but he told me that he advises that laden RBT are carried out at every PMI. This was not reflected in the printouts he saw.

I was told that 6 weekly intervals are being adhered to. On Page 2 of his report, he highlighted to me a puzzling situation where the same vehicle went to two maintenance contractors within 4 days, with very different tyre depths on the second inspection, yet there was no evidence of tyre change. In fact, no tyre management or retorque documentation was provided at all.

When I asked Mr Wragg about this (given he had provided documentation to DVSA purporting to be a wheel torque policy back in 2022); he admitted that it had not been used.

In respect of driver defect reports, VE Rees told me that he had only been provided with two in the 3-month period: one was not correctly filled in which tells him that they are not being monitored.

In relation to the unauthorised operating centre (now under interim authority), Mr Wragg told me that the vehicles had been kept at the factory where the trailer are kept. He said, “I was led to believe that if they came back to my operating centre periodically it would have sufficed.” 

In relation to inspection and maintenance records I was told that Mr Wragg has had constant issues with Weston Garage about PMI’s; he told me he was concerned about this and approached another maintenance contractor (West Pennine).   He told me it took a long time to get it sorted out and that he had been told that they would be “too expensive”. He told me that it was difficult to find a maintenance provider.

Mr Rees confirmed that West Pennine had satisfactory facilities.

I was told that TJ Parry are used and they will be the only ones used. In respect of roller brake testing, I was told that a laden test will be carried out at every PMI.  Mr Rees told me that in the most recent PMI there was no corresponding printout for a roller brake test, albeit there were some figures in the boxes on the form. I was told that an invoice shows a RBT was paid for. Mr

This is relevant to how much this operator has their finger on the pulse. Mr Wragg’s evidence demonstrated to me that he simply did not have the knowledge required of a Transport Manager; he was quite unclear about several matters. He relied too heavily on contractors and was unable to assure me that he was managing this transport operation either as an operator or Transport Manager.

I heard from Mrs Wragg who very honestly accepted she knows nothing about transport, although she has just learnt to use TruTac. She confirmed that it was a partnership in name only. Miss Dooher accepted before me that the operator’s licence is in the wrong entity, and that a new application would need to be made.

I was told that AS Miles Consulting have been used since December; Mrs Wragg confirmed that they will engage them for weekly assistance to support the operation as well as recruiting for an external Transport Manager. I was taken through two possible candidates for the role.

I received a written statement of Malcolm Wragg in advance of the Public Inquiry with a table setting out for me the purported impact of regulatory action. This was expanded by Miss Dooher’s submissions, who accepted that Mr Wragg has taken his eyes off the ball.  It was submitted to me that this case falls within the serious bracket (Annex 4 of Statutory Document No. 10). She argued that there was no intention to avoid compliance, and this was recklessness rather than dishonesty.  However, in respect of impact she acknowledged that suspension would have the same impact as revocation, as would a curtailment that materially affects the transport operation.

7. Decision

I make findings under section 26(1)(a), (c)(iii) (f) and (h).

I consider this case falls in the ‘serious’ bracket when considering Annex 4 of Statutory Document No.10, primarily due to the breadth, seriousness, and persistence of maintenance failings, coupled with what can only be described as a lamentably slow response to DVSA intervention; resulting in serious road safety concerns regarding this operator.

I find that there has been ineffective management control and insufficient or, in some areas, no systems and procedures in place to prevent operator licence compliance failings.  This is compounded by the fact that Mr Wragg is also the Transport Manager on the licence.

Balancing this as I must, with the positive features found; I find that there has been some improvement in maintenance, albeit insufficient; Mr Wragg has fully cooperated with the DVSA and this Public Inquiry.  I found both Mr and Mrs Wragg to be honest and credible in their evidence to me.  These failures were not deliberate, to circumvent the system, they emanated from a lack of understanding, which is of concern given Mr Wragg’s position as Transport Manager.

In respect of this, I find that Mr Wragg has failed to continuously and effectively manage this transport operation; I find that his repute as Transport Manager is lost.  He is unable to rely on his certificate of professional competence and is disqualified indefinitely.  I cannot think of a rehabilitation measure that would remediate in this case. The disqualification comes into effect upon the expiry of this licence (set out at paragraph 32 below).

Turning to repute, I am mindful of the comments of the Upper Tribunal in Alistair Walters [2017].   As I have determined that, Partner, Mr Wragg has lost his repute as a Transport Manager then I determine that he too also loses repute as an operator, any finding to the contrary would be obtuse given the circumstances of this case.

On finding that this operator lacks repute, and a Transport Manager that complies with schedule 3, as well as the fact that the licence is admitted as being in the wrong entity, I must go on to consider whether this operator deserves to be put out of business. In the circumstances, I consider that the failings are so serious that this licence must come to an end.

In the words of the Upper Tribunal in 2013/082 Arnold Transport Ltd “The grant of an operator’s licence does not mean that an operator can then proceed on the basis that the requirements that must be met in order to obtain a licence can thereafter be disregarded.  In our view it is clear both from the terms of the 2010 Act and from Regulation 1071/2009 that these are continuing obligations, which an operator is expected to meet throughout the life of the licence.”

Considering the way forward, I am satisfied having heard Mr (and indeed Mrs) Wragg that I can draw back from disqualifying this operator from holding a licence in future. I understand that the intention is to reapply for a licence in Mr Wragg’s sole name with an external Transport Manager and the ongoing assistance of transport consultants.  Whilst I will not pre-judge any decision in relation to a new application (which I ask is reserved to myself), this operator should be under no illusions that significant changes would need to be made and undertakings offered.   

I revoke this licence with effect from 00:01 on 16th May 2024. This period will allow a new application to be made.  However, I extend the revocation period trusting that external assistance will be sought. For formality, I grant the application for a new operating centre subject to the period of rundown of this licence.

Laura Thomas

Deputy Traffic Commissioner