Decision

Decision for Barry James Miller & Jennifer Agnes Miller (OC0279427)

Published 9 August 2023

0.1 In the North Western Traffic Area

1. Written Decision of the Deputy Traffic Commissioner

1.1 Barry James Miller & Jennifer Agnes Miller (OC0279427)

2. Background:

The partnership of husband and wife, Barry James Miller & Jennifer Agnes Miller has been the holder of a Restricted Goods Vehicle Operator’s licence for 1 vehicle since January 1992. The operator uses the vehicle as part of a farm business, all movements are of cattle. Barry Miller has been the sole driver.

I was not referred to any prior regulatory history for the operator. There had been no encounters with the operator’s vehicle during the preceding 7 years.

3. Matters leading to this Public Inquiry:

The trigger for a DVSA follow-up maintenance inspection, which took place on 22 December 2022, was the multiple defect failure during an MOT test on 2 November 2022 of the partnership’s 30-year-old nominated vehicle, D289 GCL.

Records in fact showed that this vehicle had never passed its MOT at first presentation in any of the 7 years since 2016. The nature and extent of the defects detailed on the MOT failure assessment notice in 2022 pointed to significant failures in the management and delivery of the maintenance system.

When VE Wilson visited the operator, he recorded ‘unsatisfactory’ findings and reported the concerns to the Office of the Traffic Commissioner. The overall adverse assessment of the ‘Responsible Person’ (Barry Miller) also required reporting to the Traffic Commissioner.

In summary, the VE found there was no evidence of any preventive maintenance inspection for the vehicle for the preceding 15 months, there was no forward plan and no evidence of walk round checks undertaken. Photographic evidence showed the in-house maintenance facilities were not in use. No wheel security arrangements were in place and no refresher training had been carried out by Barry Miller. VE Wilson recorded that the operator’s response to the report of his findings had been inadequate.

The Traffic Commissioner reviewed the circumstances on 25 April 2023 and Proposed to Revoke (PTR) the licence in accordance with Section 26 (1) (b) and (h) of the Act. The operator replied immediately requesting this Public Inquiry.

4. The hearing

Barry Miller was present for the hearing, unrepresented.

5. Documents produced.

Some but not all compliance documents requested in the calling-in were produced within a lever arch file with the logo of “AS Miles Consulting Ltd” on the front of it, and on, each of 15 sections within it bore the same logo of that consultancy. Representatives of that well-experienced transport consultancy have appeared before traffic commissioners on many previous occasions. Under questioning, however, Mr Miller accepted that the partnership had not engaged with that consultancy at any stage. He said that his maintenance contractor had assisted in the preparation of paperwork for the hearing but denied that there was any intention to mislead. In a letter attaching other materials produced at my request after the hearing, it was stated that “this was just a spare folder that JB Services (its PMI contractor) had.”

There was still no record of any walk round check of the vehicle before each use, nor evidence of laden brake testing, although there was confirmation that a third-party contractor, JB Services had undertaken routine safety inspections since 16 January 2023 with roller brake checks at each of them, albeit unladen. This arrangement had superseded the in-house maintenance undertaking, but the Office of the Traffic Commissioner had not been notified of the change.

6. Change of entity

In advance of the hearing, the operator produced part only of the most recent draft accounts for “Messrs Miller” dated 4 April 2023. It was absent page 1 of the document, which (typically) lists the identities of the partners. Whilst page 1 was later produced, it was from a different version of the accounts dated 10 July 2023 (that is after the Public Inquiry).

During the hearing, I had drawn to Mr Miller’s attention that it appeared there had been an undisclosed change of entity from the (two member) partnership that had been granted the operator’s licence in 1992. It had been clear from the capital accounts section listed on page 4 of the draft that the partnership was differently constituted to that which was granted the operator’s licence, the partners’ son, Paul Miller, having been added to the partnership.

At my request, following the conclusion of the inquiry, the operator produced a copy of a partnership agreement. The deed was dated 9 March 1993 and referred to the three-member partnership between Barry, Agnes and Paul Miller which had begun on 26 February 1993, therefore after the grant of the licence and now some 30 years ago!

7. Barry Miller’s evidence

Barry Miller admitted that the in-house maintenance regime had been “overlooked”. He claimed this was because of the serious problems suffered by the business during the pandemic. He said that whilst he had carried out maintenance and recorded that activity before COVID that the process had never restarted. He struggled to accept the contention put to him that well before December 2022 COVID restrictions had ceased and businesses had generally returned to business as usual.

He reported that the vehicle was presented for MOT on a last-minute cancellation in November 2022 and had not been prepared for test, hence it failed for multiple reasons.

Mr Miller offered repeated assurances that having now contracted with a third- party, JB Services, to carry out preventive maintenance that things could be different in the future. That contractor carried out maintenance for a much larger local operator and was said to have skilled staff.

He told me that the vehicle had not been in use recently because of his medical condition which had coincided with a seasonally quieter time at present.

Asked about the impact of a potential loss of the operator’s licence, he referred to the prospect of using a pick-up and trailer falling outside the scope of operator licensing.

8. Findings and consideration

I made the following findings on the balance of probabilities.

There has been a reprehensible failure to comply with the maintenance undertakings attached to the licence that extended, on the face of things, for the whole period from March 2020 through to the end of 2022, when the VE visited. Whilst it is undeniable that the maintenance regimes of many operators were significantly disrupted by COVID lockdowns and restrictions, this was an operator with an in-house facility, which was capable of being run. As was accepted by Mr Miller, farms don’t shut down, they operate 24/7 whatever is happening. Movement of the vehicle might well have reduced initially but it is clear that when restrictions were lifted, at least by the end of 2021, the regime could and should been operating normally. I cannot accept that “overlooking” maintenance as any acceptable explanation for what occurred. I find it is inevitable that even though the distances travelled will have been small, the risk to road safety would have been significantly increased.

Whilst some credit must be afforded to the operator for the decision to contract externally its maintenance provision since January 2023, this realisation comes very late in the day. It is impossible to ignore that the in-house facility apparently responsible the preceding 7 years for MOT preparation was never successful in submitting a vehicle that would meet the minimum standard. It ought to have been plain to the operator that at the November 2022 presentation it was virtually inevitable that a vehicle not maintained since its retest in October 2021 would fail.

I find that the likelihood of the deployment of a fit and serviceable will have been enhanced using JB Services. I am however unable to accept that the presentation of materials (by them or/and the operator) indicating the involvement of a transport consultancy was anything other than an unsubtle, yet devious, attempt to give the impression of their engagement when this was not the case.

I find that there has been a change of entity and that this took place many years ago, and that it will have been the case that multiple licence renewal checklists will have been signed to the effect that no change has occurred when this was false. The Traffic Commissioner is entitled to know who is being licensed and this has not been the case here. There has been a material change relevant to the grant of the operator’s licence, albeit that the evidence before me is that the undeclared partner plays a minimal role in terms of the vehicle operation. I concede that the change made without notice in 1993 was probably an ignorant one but the subsequent failures to notify the change when prompted at renewal, at best negligent ones.

9. Conclusions:

There have been clear and undisputed failures to comply with the undertakings attached to the licence regarding deployment of fit and serviceable vehicles. Effective maintenance of vehicles has not been a priority for this operator. For the reasons set out in paragraph 22 above, the conduct of the operator during this Public Inquiry has not always been transparent. The true identity of those behind the licence has only just become clear some 30 years after the change.

In the circumstances, and on balance, I do not find the argument that the licence be permitted to continue against this poor background of compliance as viable. This is a licence that must be brought to an end.

In considering questions of the fitness of the operator, I have had reference to the Senior Traffic Commissioner’s Statutory Document No. 10.

I considered the non-exhaustive list of factors in Annex D and found the following:

Positive features:

• No previous regulatory or offending history.
• Changes made in terms of maintenance but coming many years too late.

Negative features:

• Negligent acts by operator that led to undue risk to road safety through lack of maintenance.
• Ineffective management control and insufficient or no systems and procedures in place to prevent operator licence compliance failings.
• 100% MOT failure rate

I conclude that a starting point of ‘severe’ regulatory action is appropriate in this case action. I am told that there are alternatives in terms of the continuation of the operator’s business without a licence.

I find that the negatives referred to far outweigh any positives that may be offered up. When I ask myself the so-called “Priority Freight” question, I conclude I cannot be satisfied that this partnership will be compliant in the future. This is a licence which is tainted by the failures and the lack of transparency during the Public Inquiry process.

So much so that when I ask myself the “Bryan Haulage question”: Is the conduct of this operator such that it ought to be put out of the licensed sector? I conclude that it is appropriate and proportionate to answer that question in the affirmative, given the findings made in the balancing exercise undertaken. The undertakings have been breached. Action falling short of revocation, for example by suspension of the operator’s licence cannot be justified. The regulatory system is undermined if undertakings that are willingly entered into are ignored.

The operator’ licence will be revoked from a date that might allow the operator to go through a process of making a proper application that reflects the identity of the current business owners, perhaps a process completed with the support of a professional consultancy in setting up suitable systems and processes for its operation. I step back from ordering disqualification of the two partners. Someone within the business would need to have attended an accredited (and face-to-face) OLAT training course.

The revocation in accordance with Section 26 (1) (f) and (h) of the Goods Vehicles (Licensing of Operators) Act 1995 takes effect in 2 months, that is on 30 September 2023 at 23.45 hours.

Simon Evans

Deputy Traffic Commissioner

for the North West of England

01 August 2023.