Decision

Decision for Stephen Owen trading as A2Z Skip Hire

Published 24 February 2023

1. IN THE NORTH WEST OF ENGLAND TRAFFIC AREA

2. STEPHEN OWEN Trading as A2Z SKIP HIRE

2.1 OC1014473

3. A2Z SKIP HIRE LIMITED

3.1 OC2058715

4. DECISION OF THE TRAFFIC COMMISSIONER

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

4.1 Public Inquiry held at Golborne on 26 January 2023

5. Introduction

Stephen Owen trading as A2Z Skip Hire (“the sole trader”) is the holder of a restricted goods vehicle operator’s licence OC1014473 issued in 2003. The licence currently authorises the use of 3 vehicles.

A2Z Skip Hire Limited (“the applicant company”) has applied on 5 August 2022 for a restricted goods vehicle operator’s licence authorising the use of 3 vehicles. Its sole director is Stephen Charles Owen, the holder of the aforementioned sole trader licence. The details of the licence application precisely mirror the details of the sole trader licence and Mr Owen indicated on application that the latter would be surrendered on grant of the new application.

The continuation date for the sole trader licence was 31 January 2023. There has been no application to continue the licence and the required fee has not been paid. The licence accordingly falls to be terminated by application of Section 45(4) of the Goods Vehicles (Licensing of Operators) Act 1995 (“The Act”). I find the need to consider regulatory action on that licence to be an exceptional circumstance justifying a direction under Section 45(5) of the Act to disregard its termination.

6. The Call to Public Inquiry

Mr Owen as sole trader was called up to public inquiry by letter dated 14 December 2022. The call up letter gave notice that the grounds for regulatory action in Sections 26(1)(c)(iii), 26(1)(f) and 26(1)(h) of the Act were to be considered as well as the provisions for disqualification in Section 28 of the Act.

The applicant company was called up by letter of the same date that gave notice that the inquiry would consider whether it met the requirements of Sections 13B, 13C and 13D of the Act.

7. The Public Inquiry

The Public Inquiry was heard at Golborne on Thursday 26 January 2023. Mr Owen attended as licence holder and director of the applicant company. He was accompanied by Mr David Edwards, described as the operator’s transport assistant.

8. Background

The sole trader licence has been the subject of public inquiry on three separate dates in the last two years.

Mr Owen was first called to a public inquiry on 22 July 2020 for consideration of potential disciplinary action in respect of the licence. Deputy Traffic Commissioner Simon Evans presided at that hearing and described the operator’s previous approach to compliance as “appalling”. Nevertheless, he was persuaded by the recent appointment of Mr David Edwards as de facto Transport Manager to give Mr Owen an opportunity to show he could achieve compliance. The decision notes that Mr Edwards was studying for his CPC examination. The hearing was adjourned to allow for an audit and other steps to be completed.

I resumed the hearing on 30 March 2021 and found that whilst there were some positive signs of improvement in relation to compliance, the history of the licence was such that I would want further reassurance before being satisfied that past issues have been overcome and that I could trust Mr Owen to be compliant in future. I also noted that Mr Owen had not shown access to a sufficient level of finances for the size of licence, and I allowed him time to address that issue. Mr Owen subsequently satisfied me that requirement was met.

These previous hearings had been blighted by Mr Owen’s failure to produce documentation requested with Mr Owen and Mr Edwards claiming that letters from my office had not been received. Further, in November 2020 the licence was briefly revoked following a failure to respond to a propose to revoke letter after a failure to fulfil an undertaking. Mr Owen later argued that he had not received the email with the proposed revocation letter. As he provided the information required by the undertaking, he was given the benefit of the doubt and the licence restored.

The public inquiry concluded with a hearing on 1 November 2021. The previous hearings had been blighted by Mr Owen’s failure to produce documentation requested but on this occasion the required evidence was supplied on time and appeared to be in good order. The most recent audit was mostly satisfactory although some issues continued to require attention.

I determined that further regulatory action was not needed at that is stage, but Mr Owen was formally warned about the importance of future compliance. I recorded that if he gave cause to be called up again, then the future of his operator’s licence would be at serious jeopardy.

The following undertakings offered by Mr Owen were recorded on the licence:

• An audit to be arranged in September 2022 with the report submitted by 15 October 2022.

• A random audit of at least 1 driver per month to ensure the drivers are undertaking their walk round checks correctly. The findings to be recorded and kept for 15 months and made available to staff from DVSA, or the Office of the Traffic Commissioner, on request.

• All vehicles will undergo a laden roller brake test as part of every PMI. The results to be recorded, and the records kept for at least 15 months.

• Stephen Owen to inform the Office of the Traffic Commissioner at Golborne in writing immediately and by no later than 7 days of David Edwards ceasing to act as transport assistant for the operator.

The applicant company was incorporated on 28 March 2022.

In July 2022, Mr Owen applied to vary the sole trader licence by increasing the authority to 4 vehicles. This triggered a request by the DVSA for a desk-based assessment. At the same time, a person using Mr Owen’s log in details purported to change the trading name of the sole trader licence by adding the word “Limited” to the previously used name of “A2Z Skip Hire”. This possible change of entity was questioned by my office.

The variation application was swiftly withdrawn and on 22 July 2022 Mr Edwards emailed my office apologising for “not actioning” the change of entity of the operator from a sole trader to a limited company earlier that year. He claimed he thought he had updated the information online. My office advised that the sole trader licence would need to be surrendered and could not be transferred. A new application was needed by the applicant company.

The new application was submitted in complete form on 5 August 2022. At no stage was the applicant company informed that an interim licence was granted.

During August and September 2022 new vehicles were specified on the sole trader licence and these resulted in discs being issued bearing the name “Stephen Owen A2Z Skip Hire Limited” reflecting the trading name as it was then recorded. The discs should not have been issued in that name and this was an error. The discs did also have Mr Owen’s name and the sole trader licence number displayed so there ought to have been no confusion about the relevant licence.

The DVSA competed the desk-based assessment on 23 August 2022. The findings were unsatisfactory across the range of vehicle and driver management areas considered. This was mostly due to the failure to provide the documentary evidence requested of the operator. Where documents were provided, their contents caused concern such a driver defect reports that appeared to have the defects recorded in a different hand to the driver. The DVSA also made a Section 13 request for information to assist its inquiries into an incident on 7 May 2022 when a vehicle had been driven for over 50km without a driver’s card inserted. It is notable that the DVSA examiners did not detect any change of entity.

A response was subsequently sent in by Mr Edwards in which he claimed that his computer had been infected by a virus and he was unable to retrieve or send much of what had been requested. The DVSA rightly commented on the apparent absence of any backup system. Mr Edwards sought to give some reassurance on the matters raised but his response lacked detail and was not supported by documentary evidence. Mr Edwards failed to respond to the specific request to assist in identifying the driver on 7 May 2022. The DVSA report noted that they did not have any contact from Mr Owen as director.

The audit offered by the undertaking was completed in September 2022 but was not supplied to my office by the given date of 15 October 2022. After a reminder was sent, Mr Edwards delivered the audit to my office 9 days late.

The audit showed a slightly more positive picture than the DVSA assessment, in part because the auditor had access to documents that were not made available to the DVSA. However, the auditor did make several recommendations that concurred with the DVSA examiners. It is also notable that the auditor appears not to have been made aware of any change of entity.

Mr Edwards’ response to the audit sought to explain some of the issues raised were the result of him mistakenly providing records for old vehicles no longer in the operator’s possession. He described this as a “rookie error”.

In the processing of the application, Mr Owen was also asked to clarify the nature of his skip hire operation. The responses provided raised a concern that that the use of the vehicles was of a nature that a standard licence was required.

These matters all led to Mr Owen as sole trader licence holder and the applicant company being called to the public inquiry.

9. Evidence

In advance of the hearing, Mr Owen as sole trader and the applicant company were asked to submit documentary evidence including evidence of financial resources.

Evidence was submitted by the applicant company but not by Mr Owen as sole trader. The applicant company demonstrated an adequate level of financial resources but is statements strongly suggested it was already operating goods vehicles for skip hire purposes.

Mr Owen was reminded of the need to submit financial evidence for the sole trader business. He responded by email on 19 January 2023 that he did not have sole trader accounts as he had “been trading as a limited company since June”.

A large number of other documents were supplied. This included some policy documents and other evidence that the DVSA had requested to see but had not been provided. The documents were in paper format so it is not immediately apparent why a computer issue prevented them from being supplied.

Many of the documents were in the name “A2Z Skip Hire” so it was not possible to distinguish if they related to the sole trader business of the limited company. I noted however that an insurance certificate was supplied in the name of A2Z Skip Hire Limited that took effect from 22 October 2022. This covered use, “in connection with the Policyholder’s business including carriage of own goods”. I also noted that the business had acquired 3 new vehicles in August 2022 and the V5 documents for all 3 confirmed they were registered to A2Z Skip Hire Limited.

During evidence at the hearing, Mr Owen conceded that he ceased trading as a sole trader in June 2022. Since that date the business and the vehicles have been operated by the limited company entity following advice from his accountant. The limited company has paid the running costs of the vehicles and the drivers’ wages since that date. Mr Owen explained that this was the reason he had no evidence of finances to offer for the sole trader business.

Mr Owen said he thought there was an interim licence in place and that Mr Edwards was meant to be addressing the new licence application on his behalf. I asked Mr Owen and Mr Edwards what discs were on display in the vehicles currently and they said that they were the discs for the sole trader licence. At that point during the public inquiry neither Mr Owen nor Mr Edwards made any mention of what details were recorded on the discs. I am satisfied they did not know then what name was on the discs.

Mr Owen confirmed that he had no evidence to support his belief that an interim licence had bene granted. I also directed him to the call up letter dated 14 December 2022 that expressly sated in bold print that A2Z Skip Hire Limited did not have authority to operate goods vehicles. Mr Owen accepted he had not read the letter (it was passed to him during the hearing by Mr Edwards).

Mr Edwards restated that issues in providing the documentation to the DVSA for the desk based assessment were the result of his computer failing. He did not have any supporting evidence of this to present at the hearing. Mr Edwards also claimed he had made an error in supplying details of old vehicles to the auditor. I asked Mr Edwards why he described this as a “rookie error” given he has been in post as a transport assistant for nearly 3 years and has had plentiful experience of preparing documents for the DVSA and my office. Mr Edwards said he could only apologise.

It was clear from the evidence given during the year (as in the previous public inquires) that Mr Owen had very little knowledge of operator licensing requirements and the compliance status of his sole trader licence. He sought to defer most questions to Mr Edwards, who was struggling to provide satisfactory answers.

At the conclusion of the hearing, I asked Mr Owen to return the discs for the soe trader licence in view of his concession that it was no longer operating the vehicles. Mr Owen conceded that he could not argue against revocation of the sole trader licence but asked that I granted the limited company application as a matter of urgency so that he could continue to trade.

I warned him that there was no alternative authority in place to permit the operating of the vehicles. I indicated that I would be asking for ANPR checks to ensure he had not continued to operate vehicles until I had made a decision on the new application. MR Owen was told that movement of the vehicles for maintenance purposes was permitted but not otherwise and he should be ready to provide evidence to explain any sightings.

Mr Owen subsequently drew attention to the name of the limited company appearing on the discs. I am satisfied he was not aware of that fact prior to the public inquiry and only realised what name was on the discs when he went to retrieve them after the hearing.

Mr Owen also sent my office an email on the evening after the public inquiry saying he had, “decided to part terms with Mr Edwards following the public enquiry as he is not meeting the demands of the traffic commissioner which he is getting paid for. I have spoken to a registered transport manager who is willing to help if I get granted my licence back”.

An ANPR check on 1 February 2023 revealed a small number of sightings for two of Mr Owen’s vehicles. These did not indicate they were being used and Mr Owen provided some evidence of maintenance work being carried out at the corresponding time. There was evidence of more sightings for the third vehicle consistent with it being used. Mr Owen was asked to explain and sent it an invoice from A2Z Skip Hire Limited to a company called [Redacted] for “hire of skip truck and driver”. It was pointed out to Mr Owen that no such entity held an operator’s licence. Mr Owen then sent in further invoice addressed to [Redacted], who do hold an operator’s licence and had a margin allowing the use of an additional vehicle. Mr Owen said he had made a mistake about the company name.

I will give Mr Owen the benefit of the doubt that there was nothing untoward in this hire arrangement but the error in the initial identification of the company hiring the vehicle is yet further evidence of his ineptitude in record keeping.

10. Findings of fact

I make the following findings of fact in relation to the sole trader licence:

• There have been prohibition notices issued to the sole trader within the last 5 years as documented in the previous public inquiry decisions. This satisfies the grounds for regulatory action in in Section 26(1)(c)(iii) of the Act.

• Mr Owen has not honoured the undertakings that he agreed previously to keeps his vehicles fit and serviceable, observe the rules in drivers hours and keep proper records, to keep records of driver defect reports and routine maintenance for 15 months and make them available on request. This satisfies the grounds for regulatory action in in Section 26(1)(f) of the Act.

• There has been a material change in the circumstances of the licence holder in that there has been a change in the entity operating the vehicles and the sole trader no longer has sufficient financial resources to adequately maintain its vehicles. This satisfies the grounds for regulatory action in in Section 26(1)(h) of the Act.

These matters together with Mr Owen’s repeated failure to ensure that requests from my office and the DVSA were promptly answered also leads me to conclude that there has been a material change in the requirement of fitness that also satisfies the grounds for regulatory action in Section 26(1)(h).

It is not disputed that roadworthiness prohibitions have been issued to the operator and I find this satisfies the grounds for regulatory action in 26(1)(c)(iii) of the Act.

11. Relevant considerations

11.1 Stephen Owen trading as A2Z Skip Hire OC1014473

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.

There are few positive features. There have been some limited improvements made to systems and compliance since the licence first came to public inquiry. I also give Mr Owen some limited credit for the fact that he has always attended the inquires as required and has not tried to avoid his responsibility in that sense. I asl note that there has not been any further prohibitions in recent months.

`

On the other hand, I identify the following negative features.

• The number of previous prohibitions.

• The ineffective management control and insufficient systems and procedures in place to prevent operator licence compliance failings as identified by the DVSA and audit.

• Insufficient changes made since the 2020 and 2021 public inquiries.

• Evidence of previous unsatisfactory maintenance investigations, audit reports and the warning issued at the previous public inquiries.

• Persistent failures to provide timely and complete information to the DVSA and the Office of the Traffic Commissioner by the given dates.

• The failure to notify the change of entity immediately after it took effect and the continued operation of vehicles after the sole trader business had ceased, without ensuring an alternative authority was in place.

Having balanced these factors and considered the evidence heard at the public inquiry, I consider this is a case that falls into the category of “serious” for the purposes of considering regulatory action.

As Mr Owen has conceded the sole trader business is no longer operating the vehicles, it may be seen as academic to consider the continuation of the licence. Nevertheless, I have gone on to consider the question posed in Priority Freight 2009/225 namely, how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime?”

It is clear that Mr Owen has little comprehension of what is required to be compliant and that he was completely reliant on Mr Edwards’ assistance. Despite the early promise show by Mr Edwards, it has been shown that his skills and knowledge were also lacking, and he has been unable to deliver the assurances made at the 2020 hearing. This appears to have only dawned on Mr Owen after this public inquiry. There is little evidence that Mr Owen has ever considered seeking expert external advice on how to run his licence.

Given Mr Owen persistent failures to heed the warnings at previous public inquires and his evident inability to understand the requirements of a compliance operation, I consider it extremely unlikely that he will be able to be compliant in future.

I have then considered the Bryan Haulage question of whether the sole trader operation deserves to be put out of business, noting that it has already ceased to trade. However, the extent of the failings in this case and the persistent failure to heed previous warnings are such that I would have considered revocation was proportionate even if the sole trader business was still active.

The sole trader licence is therefore revoked with immediate effect.

Having reached the findings of fact recorded above, I have considered the position of Mr Owen and if an order for disqualification should be made.

As a sole trader, the positive and negative features as the same as discussed above for the operator and my lack of confidence in Mr Owen’s ability to be a compliant operator in future is also set out above.

I determine that an order for disqualification is necessary and proportionate for Mr Owen be prevented from managing an operator’s licence until such time he can provide reassurance he will do so in a compliant manner.

In deciding upon the length of the disqualification, I have taken account of paragraph 105 of the Senior Traffic Commissioner’s Statutory Document Number 10 which states that for an operator’s first Public Inquiry, consideration of a disqualification period of between 1 and 3 years may be appropriate. I consider the failings in this case to be serious but balance that with the fact that this is the first such order for Mr Owen. Accordingly, I have determined that the period of disqualification can be limited to 12 months.

If after that period has expired, Mr Owen wishes to make a new application for an operator’s licence he will need to demonstrate what steps he has actively taken to improve his knowledge of what is needed to be a compliant operator. It is likely I would also wish to see evidence that he was supported in any new venture by a professionally competent and experienced transport manager or similarly qualified person.

12. A2Z Skip Hire Limited OC2058715

As Mr Owen is the sole director of A2Z Skip Hire Limited, the fact of the disqualification means its application must fail. I will not consider the merits of that application further for that reason.

The application is refused.

Gerallt Evans

Traffic Commissioner for the North West of England

6 February 2023