Decision

Decision for NEO Logistics Ltd – OF1134284

Published 16 May 2023

0.1 In the Eastern Traffic Area

1. Confirmation of the Deputy Traffic Commissioner’s Decision

1.1 NEO Logistics Ltd – OF1134284

2. Background

The operator Neo Logistics Limited is the holder of a standard national licence authorising two vehicles and two trailers granted on the 8 January 2015. The directors of the company are Callistus Okoli and Ezinma Cynthia Umerah-Brown. The transport manager is Ezinma Cynthia Umerah-Brown.

On the 10 October 2021 one of the authorised vehicles was stopped when being driven by Stephen Happiness Nwaeze. Enquiries revealed that the tachograph card being used was in the name of Callistus Okoli.

A follow up investigation in relation to the operator and drivers was conducted by Traffic Examiner Olaru commencing on the 27 October 2021.
Mr Olaru identified several occasions when it appeared tachograph cards had ben swopped between Mr Nwaeze and Mr Okoli and vice versa. He decided that these instances required further investigation and interviews were arranged with the relevant parties. In addition, there were gaps in the information that was provided to Mr Olaru, the role being taken by the designated transport manager was uncertain and documentation provided to evidence infringement analysis and drivers’ work schedules appeared to have been created for the purposes of the investigation and not as part of day-to-day activity.

The transport manager responded to the shortcomings by saying that transport consultants had been engaged to assist, that she would increase her focus on the licence and that she and Mr Okali would undertake relevant training.

In interview Mr Okali claimed that the occasions identified by Mr Olaru when “card swops” had taken place at a point distant from the operating centre had related to him taking over driving the relevant vehicle from Mr Nwaeze at that point. He denied allowing Mr Nwaeze to use his card but accepted that he had not kept any record of the time it had taken him to drive to the point where he would take over driving or show this activity as other work.

When interviewed Mr Nwaeze said that the incident on the 27 October 2021 had been an error on his part believing that it was his card in the tachograph unit. He explained the other instances in the same way as Mr Okoli namely that the changes had been as a result of change of drivers at a place remote from the operating centre and not evidence of him using two cards.

In light of the apparent offences and other failings a decision was made to call the operator and transport manager to public inquiry together with Mr Nwaeze and Mr Okoli in their capacity as professional drivers.

3. The Public Inquiry

Mr Okoli, Ms Umerah-Brown, and Mr Nwaeze attended the public inquiry and were represented by Ms Dooher. Mr Okoli had submitted a written statement in advance of the hearing which confirmed that he had been appointed as a director of the company on the 1 October 2022 although this had not been notified to the Traffic Commissioner.

Mr Okoli and Mr Nwaeze gave evidence and said that the incident on the 10 October 2021 had been a result a Mr Okoli leaving his card in the tachograph unit by mistake and Mr Nwaeze not realising that it was this card that was in the machine when he was driving.

Traffic Examiner Oharu confirmed the contents of his public inquiry statements and the records of interviews of Mr Okoli and Mr Nwaeze. He repeated his belief that Mr Nwaeze had been using both cards because the time between the changes was short and occurred at locations many miles from the operating centre. On two occasions the location was 139 miles from the operating centre and the other it was 120 miles. He believed that the intention in Mr Nwaeze using two cards was to circumvent the restrictions on daily driving and the need for adequate rest periods. I asked about the other 23 dates which were said in Mr Olaru’s statement to be occasions when “unrealistic timings between driver card swops” occurred and he said that he could not give details of these as the relevant data had been deleted from his computer. Ms Dooher submitted that these could not be considered as her clients had not had the chance to consider the details, He accepted that what was being claimed by the drivers was possible, He had analysed the missing mileage reports from the documents produced for the inquiry and there were five occasions which merited explanation. He was also concerned as to the frequency of driving licence checks.

Mr Okoli confirmed what he had said in interview namely that he had taken over from Mr Nwaeze in driving the vehicle on the dates in question and had calculated where he would be to enable this to happen. Mr Nwaeze lived in Nottingham and the changes would take place around that area. Bothe he and Mr Nwaeze were not able to give details of which cars had been driven to enable the change of drivers to happen.

Ms Umerah-Brown said that she had been aware of the arrangements in place to swop drivers on route but not the details. The practice had ceased since the investigation and there were more drivers and more local work being done. After the visit of Mr Oharu the operator had engaged the services of transport consultants and they had assisted in compiling a compliance folder which was presented in evidence. It was accepted that driving infringements had not been dealt with properly in the past and that systems had not been as effective as they should have been. She now spent 10 hours per week on her transport manager duties and she believed improvements had been made. She was able to produce documents showing that infringements were now being dealt with properly.

A visit report update from the transport consultants was produced which stated that the original compliance folder had been supplied in late 2021 and a follow up audit conducted in April 2022. The latest visit in April 2023 showed that better and more frequent use of the compliance folder was required and the necessary spot checks on driver daily walk rounds had had not been carried out since August 2022. Some follow up on PMI issues had occurred but in general terms the “operator could have done more”

Ms Dooher submitted that the level of proof required to show that “card swoping” occurred was not made out and the suspicions of the traffic examiner were not sufficient. Efforts had been made in 2021 to make improvements and advances had been achieved. If a chance was given full compliance could be achieved with the assistance of the consultants and the training that had been undertaken. She also addressed me on the potential impact of regulatory action options that I may consider.

In respect of financial standing Ms Dooher said that the amount required was present in the company account now but had not been for the full three-month period necessary. She asked for a period of grace to enable financial standing over a further three-month period to be shown.

4. Findings and Decision.

Before making more general findings I need to decide whether I accept the explanation given by Mr Okoli and Mr Nwaeze in relation to the occasions when two cards were used in the same vehicle in one day. It is very unfortunate that the data in relation to the 23 dates identified in Mr Olaru’s original statement has been lost. I conclude that it would be unfair to taken any of those dates into consideration because neither I nor the drivers concerned have had the chance to analyse the details. This leaves the three dates discussed when both cards were used. The drivers stated in interview that this resulted from one driver taking over from the other and repeated this explanation at the inquiry. Part of the explanation referred to Mr Nwaeze living n Nottingham and how the changeover was convenient for him as a result. Having researched the details of the relevant ANPR cameras I found that they were in or around the Nottingham area. It is also the case that on two of the three dates the ANPR photograph is at the same location. The recollection of both drivers in relation to the incidents and who was driving which vehicle was vague but it is the case that the interviews took place six months afterwards and the inquiry twelve months later.

I remain highly suspicious as to the reasons for the card swops but remind myself of the guidance from the House of Lords in Secretary of State for the Home Department v Rushman [2011] that “cogent evidence is generally required to satisfy a civil tribunal that a person has been fraudulent or behaved in some other reprehensible manner” On balance therefore I do not believe that the evidence is sufficiently cogent for me to be satisfied that the standard of proof on the balance of probabilities is made out.
Having made my decision in relation to the suspicion that Mr Okoli and Mr Nwaeze were using both cards It nevertheless accepted that on the 10 October 2021 Mr Okoli left his card in the tachograph unit and Mr Nwaeze drove without putting his card in. It also means that on the three dates when Mr Okoli took over the driving, he failed to record his journey or the work he had undertaken previously. There is no evidence that Mr Nwaeze made any record of his journeys to and from the relevant vehicle. As a consequence of these failings, I need to take regulatory action against both drivers and order a suspension of their vocational entitlements for a period of 28 consecutive days commencing on the 1 May 2023.

As far as the operator and transport manager is concerned I need to decide the overall seriousness of the case and balance the negative factors with any positives I can find. On the negative side are the findings I have made in relation to the incidents in 2021 and the deficiencies in the systems identified by Mr Olaru. In particular I attach weight to his conclusion that the infringement reports and work schedule had been created as a result of his investigation rather than on an ongoing basis beforehand. It is positive that the operator contacted the transport consultants in late 2021 and began introducing systems to improve but this is balanced with the most recent visit where the consultants found that aspects of the systems had not been continued.

My findings are that the operator has breached Section 26(1)(b)(ciii) (ca) (e) and (f) of the Goods Vehicles (Licensing of Operators) Act, 1995 for the reasons detailed above and set out in the call-up letter.

Overall I conclude that this case is in the “serious” category of cases as detailed in Statutory Document 10 issued by the Senior Traffic Commissioner and in deciding whether the operator should be allowed to continue I need to ask myself the question set out in the case of Priority Freight Limited & Paul Williams i.e. how likely is it that this operator will operate in compliance with the operator’s licensing regime? In other words, can the operator be trusted going forward? Mr Olari told me at the inquiry that the hearing had been “a wake-up call” and he and the transport manager promised that the necessary improvements would be made and maintained. On balance I have decided that they can be given a chance to show that this is true but the decision is a finely balanced one. I have stepped back from revocation but only just. It is highly unlikely that further chances will be given.

Having decided that revocation is not to be ordered in this case I find that regulatory action is required and order a suspension of licence for seven consecutive days to be served by the 31 May 2023. The dates chosen for the suspension to be notified to the Office of the Traffic Commissioner by the 30 April 2023. The repute of the operator and the directors Ezinma Cynthia Umerah-Brown and Callistus Okoli is retained but tarnished’

The repute of Ms Umerah-Brown is marked as severely tarnished in her capacity as transport manager. She should have taken the lead in ensuring compliance was established and maintained and she failed to do so. Moving forward she will need to improve her performance significantly.

I accept the undertaking offered for an independent audit to be carried out in October 2023. Full details of the requirements will be sent with a copy of this decision. The operator should be aware that an unsatisfactory outcome from the audit is likely to lead to a further public inquiry.

The amount required to demonstrate financial standing was achieved but not for the whole of the required period prior to the inquiry. I therefore accept the request for an undertaking that proof of financial standing for the period May to June 2023 should be provided by the 31 July 2023. A period of grace is not required because the level required was demonstrated at the public inquiry and the expectation is that this will be maintained going forward.

John Baker

Deputy Traffic Commissioner

18 April 2023