Decision

Decision for Bouden Travel Ltd and transport manager Sophie Baugh

Published 23 April 2024

0.1 WEST MIDLANDS TRAFFIC AREA

1. BOUDEN TRAVEL LTD

2. TRANSPORT MANAGER SOPHIE BAUGH

3. WRITTEN DECISIONS OF TRAFFIC COMMISSIONER MR M DORRINGTON

4. PUBLIC INQUIRY HEARD ON 21 MARCH 2024 AT THE OFFICE OF THE TRAFFIC COMMISSIONER IN BIRMINGHAM

5. SUMMARY OF MY DECISIONS

The standard international public service vehicle operator’s licence held by Bouden Travel Ltd (the “operator”), reference PD1138814, will have the conditions upon it varied from 2359 hours on 26 April 2024 such that its authorisation is then reduced from 18 vehicles to 14 vehicles on a permanent basis under section 17(3)(aa) of the Act because the general undertakings, detailed below, on the operator’s licence were breached:

• The laws relating to the driving and operation of vehicles used under the licence were observed; and/or

• The rules on drivers hours and tachographs are observed and proper records kept.

No variation application to increase authorisation will be considered unless it is accompanied by a drivers hours, tachograph, missing mileage and working time (Road Transport Working Time Regulations 2005) compliance audit from a competent, accredited and independent provider that is marked as “Satisfactory” in every area of compliance audited.

The operator’s good repute is now marked as “very badly tarnished but not lost.”

Transport manager Sophie Baugh has come as close to losing her good repute as a transport manager as any person could ever come. By the very narrowest of margins have I stepped back from taking her good repute away. Her good repute as a transport manager is now marked as “severely tarnished and hanging by the thinnest of threads”. She is given a “First and Final” written warning that will remain on her file for 5 years. Suffice it to say that if the DVSA investigation that I have requested and/or any audit supplied by the operator (as above) is anything less than “Satisfactory” then she will be called back before me.

6. BACKGROUND

The operator was granted its operator’s licence in July 2015 and up until 2023 it had received two written warnings from the Traffic Commissioner for adverse compliance events. On 04 May 2023, after a routine stop by the DVSA, it was established that two drivers had pulled their digital tachograph card and then carried on driving. This prompted a formal DVSA investigation that ultimately resulted in the operator and transport manager being called to a public inquiry that eventually took place on 21 March 2024.

7. PUBLIC INQUIRY AT 10AM ON 21 MARCH 2024

The DVSA were not asked to attend the public inquiry by either myself or the operator or transport manager. The evidence from the DVSA consisted of the original public inquiry statement from traffic examiner Bateman and his supplemental statement.

The public inquiry was originally adjourned. The new time and date was emailed to the operator’s solicitor by the caseworker and then on 05 March 2024 at 1.31pm the caseworker emailed the transport manager and stated “As informed by your solicitor it has been set for 21 March 2024 at 10:00 hours.” On 07 March 2024 the caseworker emailed the operator’s solicitor, the operator’s sole director, Mr Adel Bouden and Sophie Baugh the transport manager. That email said “…The public inquiry had been rescheduled to be held on 21 March 2024, commencing at 10:00 hours, the venue remains the same.”

On the day of the public inquiry I was present at the Office of the Traffic Commissioner from 8.30am. The operator’s and transport manager’s solicitor, Mr Oliver, was present from circa 8.45am.

Mr Adel Bouden and Sophie Baugh did not arrive until after 10am. The signing in sheet records the same. No calls or messages had been received to say they were running late.

As a result of both the sole director and the transport manager arriving after the public inquiry was due to start the hearing was unable to begin until 10.35am.

Also present, and waiting patiently on Teams, was a driver formerly from the operator who had been called to a conjoined driver conduct hearing listed for 10am. He was also delayed as a result of the late arrival of Mr Bouden and Miss Baugh.

Neither Mr Bouden nor Miss Baugh had any reasonable excuse for being late notwithstanding the emails detailed on paragraph 7 above clearly said the hearing was starting at 10am. I made it clear that I would determine whether that failure to attend a formal public inquiry on time amounted to a failure to co-operate with myself as the Traffic Commissioner and/or was a matter that went to the good repute of the operator and/or transport manager at the end of the hearing.

Having confirmed the documents submitted on behalf of the operator and transport manager in the case with Mr Oliver, and after both had adopted their witness statements, I heard further oral evidence from them both before hearing closing submissions from Mr Oliver. The lateness of starting the public inquiry meant there was insufficient time to consider, and then give, an oral decision on the day and so my decision was reserved.

8. BURDEN AND STANDARD OF PROOF

The burden of proof was upon the DVSA to prove any allegations that were made to the civil standard of proof; the balance of probabilities. In other words what was more likely than not to have happened. That standard of proof was used in reaching all of my findings of fact.

9. FINDINGS OF FACT

The evidence of the DVSA was not, or was not materially, challenged by the operator or the transport manager. In relation to the original investigation by traffic examiner Bateman I found that evidence to be credible, cogent and highly persuasive and accepted it as such. All of the allegations in that public inquiry statement were more likely than not to have been correct and as a result are found to be proven. I repeat them all and adopt them as my own findings of fact for the purposes of reaching this decision.

I explained at the start of the public inquiry that the supplemental report from traffic examiner Bateman fell into two distinct conclusions by the DVSA officer and for the avoidance of any doubt I have found that the lesser of the two conclusions was applicable here as it is more likely than not to have been correct from all of the evidence that is before me. In other words I have accepted as a finding of fact the following conclusion by traffic examiner Bateman.

“Therefore, if the company were to provide clear, concise and acceptable explanations with evidence on the missing mileage periods, my only concern would be the high rate of infringements for ‘Exceeding 4.5hrs’ and ‘Daily Rest’.”

This conclusion is qualified by the evidence of traffic examiner Bateman at page 6 of his supplemental report where a table is given listing 5 allegations of driving without a card inserted into the digital tachograph machine with the traffic examiner saying:

“There were 5 more periods where vehicles had been driven with no driver card inserted into the vehicles tachograph units, but as there is no annotation for these periods on the company’s missing mileage period, and I have been offered no explanation as to why these vehicles were driven with no driver card, I cannot conclude that the drivers for these vehicles did or did not have valid reasons for them to be driving without a driver card inserted.”

The 5 alleged occasions were:

RJ18NZV      29/11/23       Driving without [sic] a card           29 mins 13KM

RX17OYW    04/01/24       Driving without [sic] a card           14 mins  6KM

YD18WYL     13/12/23       Driving without [sic] a card           61 mins  61KM

TD18WYL     12/12/23       Driving without [sic] a card           109 mins 116KM

YN16UAE     09/12/23       Driving without [sic] a card           89 mins

The transport manager had no explanation for these allegations. That, I find, was truly remarkable given she was trying to satisfy me that she had been “effective” as a transport manager, particularly after the DVSA stop on 4 May 2023 when two drivers were alleged to have taken their tachograph cards out of the tachograph machine and then carried on driving. Those two allegations were found to be proven on the balance of probabilities in the two driver conduct hearings conjoined to this public inquiry.

It is even more remarkable that these five allegations lacked explanation from the transport manager because had she been effective in her role these incidents would have already have been spotted by her before traffic examiner Bateman wrote his supplemental report, and they certainly should have been spotted before the public inquiry at the point in time when the vehicle unit download data was cross referenced to the drivers digital cards data and thereafter these five serious matters should have been identified and thoroughly investigated. To have no explanation to those 5 serious allegations in a public inquiry is totally unacceptable.

Given the lack of explanation I find that it is more likely than not that on each of those five occasions detailed on paragraph 17 above the driver drove an in-scope vehicle without a digital driver card inserted for significant time/distance when the digital tachograph card should have been inserted into the digital tachograph machine.

Therefore, the following are now apparent to me:

• In May 2023 the operator and transport manager are put on notice of two drivers pulling their digital tachograph cards; and

• Despite that, and the loud and clear alarm bells that this intervention from the DVSA should have sounded to the transport manager and the operator, there were five now proven further instances of drivers driving without their digital tachograph cards inserted on 29/11/23, 09/12/23, 12/12/23, 13/12/23 and 04/01/24.

I therefore expected to see disciplinary letters for the drivers from the May 2023 DVSA investigation and for the five additional matters detailed above. Fortunately the operator had provided as part of its evidence a large bundle of documents and at Tab 13 is a section headed “Disciplinary Letters”. Unfortunately there are only two letters there. They are as follows:

• Driver found to have driven on 03 November 2023 and when he had already exceeded his permitted hours he pulled his digital tachograph card out and then drove for a further 25 minutes with no digital tachograph card inserted. The outcome of the disciplinary hearing for those two matters – No warning and no further action taken.

• Driver found to have removed his tachograph card on 04 January 2024 from the tachograph machine and then continued to complete his job with no tachograph card inserted. Outcome of that disciplinary hearing – First written warning (it was not clear from the public inquiry whether this incident on 04 January 2024 was the same as identified by the traffic examiner on 04 January 2024 in his supplemental report).

Let me be clear. There is never, ever, a lawful excuse for a professional driver to remove their digital tachograph card from the digital tachograph machine and to then carry on driving an in scope vehicle. All professional drivers know that the digital tachograph machine records their duties on the digital tachograph card. By taking that card out and then driving it is, and would be, obvious to any professional driver that that driving will not be recorded on their tachograph card. In other words it is, or would be, obvious to any professional driver that by not recording their driving a false record will be created by the failure to record what is legally required to be recorded.

Let me be clearer still. It is a conscious act to take the digital tachograph card out of the digital tachograph machine. It therefore requires intent to do that conscious act i.e. knowledge of what you are doing. There can then be no excuse from someone who then drives the vehicle to say that they “forgot” that the card was not inserted because all digital tachograph machines have a flashing alert to warn the driver when the vehicle is in motion if no tachograph card is inserted into the machine. That flashing warning carries on until such time as a digital tachograph card is inserted.

Pulling a digital tachograph card and then carrying on driving is dishonest, it is a criminal offence and it is there to hide duty time that should be recorded which is done in almost 100% of cases to conceal an offence that would otherwise be committed were the card to remain in the machine. It therefore puts lives at risk when drivers either avoid taking a statutory break after 4.5 hours of cumulative driving or avoid taking a necessary daily rest period by pulling out their digital tachograph card as the legal requirement to take a break/rest period nears. The laws on breaks and rest periods are there for one thing only; safety – to avoid tired drivers driving. Driving without a tachograph card inserted puts road safety and lives at risk.

The disciplinary responses (or lack of them) by the operator to what has been proven to have been happening since May 2023 when the DVSA stop was undertaken until January 2024 is beyond my comprehension. I cannot think of a more serious breach of the drivers hours and tachograph laws by a professional driver than pulling a card and then carrying on with driving. It is the equivalent to a road safety critical “S” marked maintenance related prohibition. And yet this operator has taken no, or no serious, disciplinary action when this has occurred as clearly evidenced at Tab 13 of the bundle of documents provided to me.

Pulling a card/creating a false record is prima facie an act of “gross misconduct”. The outcome of finding of gross misconduct after a disciplinary hearing should be summary dismissal save in the most exceptional of circumstances. It should never be “no warning will be issued, and no further action will be taken” as Sophie Baugh, the transport manager, wrote in the disciplinary letter for the incident on 03/11/2023 as detailed above.  

I therefore find that this operator did not take the issue of pulling digital cards seriously at all. The evidence in that respect speaks for itself and that finding has a significant adverse bearing on the operator’s good repute and the transport manager’s good repute. It is also clear evidence that the following general undertakings on the operator’s licence were breached by drivers driving without a digital tachograph card inserted into the digital tachograph machine:

• The laws relating to the driving and operation of vehicles used under the licence were observed; and/or

• The rules on drivers hours and tachographs are observed and proper records kept.

It was not challenged that the traffic examiner, in his supplemental report, found “high rate of infringements for ‘Exceeding 4.5hrs’ and ‘Daily Rest’” as per his conclusion. From the evidence before me the transport manager, Sophie Baugh, was aware of this as she told me that she knew drivers were breaching that 4.5 hour rule and explained it was because they were planning their own routes and ran out of time. I also found this remarkable and have broken it down as follows to explain why:

• The transport manager is there to have the necessary statutory qualification in order to fulfil the statutory role that necessitates “effective and continuous management of the transport undertaking.” That is a very serious statutory responsibility; and

• Statutory document number 3 issued by the Senior Traffic Commissioner for Great Britain solely concerns transport managers and states in the current edition at part of paragraph 60, General Duties:

“Drivers – management

• to ensure compliance with the driving hours rules (EU or Domestic Hours rules); [emphasis added]

• to ensure that drivers are recording their duty, driving time and rest breaks on the appropriate equipment or in drivers hours books and their records are being handed back for inspection as required; [emphasis added]

• where appropriate, to download and store data from the vehicle digital tachograph unit (at least every 90 days) and from the drivers’ tachograph smart cards (at least every 28 days);

• to ensure that drivers’ hours records are retained and are available to be produced during the relevant period;

• to ensure that records are retained for the purposes of the Working Time Directive (WTD) and that they are available to be produced during the relevant period;

• to ensure that drivers are adequately trained and competent to operate all relevant vehicles and equipment; [emphasis added]

• to contribute to relevant training and subsequent disciplinary processes as required; Drivers – operations [emphasis added]

• to ensure that drivers are completing and returning their driver defect reporting sheets and that defects are recorded correctly;

• to ensure that all drivers and mobile workers take adequate breaks and periods of daily and weekly rest (as per the relevant regulations which apply).”

These general duties come from retained EU laws and our own laws; and

All transport managers are deemed to know the Statutory Documents issued by the Senior Traffic Commissioner. They cannot plead ignorance to them. If documents are in the public domain and are directly relevant to the fulfilment of the transport manager function they are expected to know them. For that I rely on the Upper Tribunal authority of 2012/030 MGM Haulage and Recycling Ltd; and

There are no “L” plates for any transport manager. There is no “learning on the job”. Transport managers are there to fulfil the statutory function the law says they are expected to perform and that applies from the first day they are specified on an operator’s licence as a transport manager. Here Sophie Baugh qualified as a transport manager several years ago and has been specified on this operator’s licence for some time; and

I therefore do not see how Sophie Baugh, as the transport manager, was “effective” in complying with the general duties set out above in paragraph 60 of Statutory Document 3 (or ensuring compliance with the two general undertakings on the operator’s licence as quoted in paragraph 28 above) when she knew drivers were breaching the 4.5 hour rule as a result of planning their own journeys and then allowing that to carry on. She should have taken over the planning of all journeys as soon as this issue became apparent to ensure that there was sufficient time factored in for delays etc so that no driver breached the 4.5 hour rule in order to discharge her statutory role.

The proven (and accepted) breaches of the 4.5 hour rule as well as the unchallenged finding of traffic examiner Bateman regarding daily rest matters means that I further find the following general undertakings on the operator’s licence were breached:

• The laws relating to the driving and operation of vehicles used under the licence were observed; and/or

• The rules on drivers hours and tachographs are observed and proper records kept.

The fact that all of my findings were happening on the watch of the sole director, Mr Adel Bouden, meant it was more likely than not that he had failed to exercise any, or any effective, management control of the transport manager or the general undertakings on the operator’s licence that I have already quoted. Had he done so then after the DVSA stop on 04 May 2023 the serial and serious offending by drivers would not have occurred, but it did. The Transport Tribunal, as it was then, said in the appeal case L56 1999 Alison Jones T/A Jones Motors that the director(s) of a company that holds an operator’s licence must “constantly monitor and supervise” the transport manager and those other people with delegated responsibility. They went on to make it clear that “constantly monitoring and supervising” did not mean taking things at face value, it meant checking, scrutinising and challenging what was happening.

That was expanded upon by the Upper Tribunal in the appeal case of LA & Z Leonida T/A ETS 2014/024 where they held:

“…it does not matter whether an operator’s licence is held by an owner operator, a partnership or a limited company because in each case the person or persons responsible for managing the business bear the ultimate responsibility for ensuring that the road transport aspect of the business operates in compliance with the regulatory regime. That means they cannot plead ignorance or put the blame on the transport manager because they are required to have sufficient knowledge of the regulatory regime to ensure compliance in general and the proper performance of the transport manager’s duties in particular.”

Later in the hearing Mr Bouden stated that there were personal reasons why things may have slipped. Given the transport business remained open with business as normal, and given that I had not been notified of any reason why there may be an event that might interfere with compliance, I explained that I did not want to know about it but he insisted and told me that as a result of something that happened he went to, and remained in, Tunisia for four months. I rose as his solicitor looked surprised and I allowed 15 minutes for instructions to be taken. Upon my return his solicitor stated that his client had dropped himself in a hole and then proceeded to try and explain what had happened.

The reality is that he was not present in the UK for four months, no other director was appointed to cover his absence and no one else was acting as a de facto director either. Despite the arguments advanced to me I find that it is more likely than not that when Mr Bouden was absent for that long, when no-one else was given director powers back at the transport business, he could not exercise effective management control of the transport business over Teams, email or other electronic means of communication; he could not be physically present to inspect vehicles, the maintenance facilities, do gate checks, to speak to drivers and go through matters with them face to face, he could not attend an urgent in person meeting, he could not go through documents in real time with his transport manager, he could not be present if the DVSA/Police paid him a formal visit etc etc. In addition, his absence was never communicated to me when it should have been, and so it would seem, it was never communicated to his solicitor. Had it been communicated to his solicitor I find it is more likely than not that his four months in Tunisia would have been mentioned in his statement. It should have been.

The operator had used self-employed drivers which accounted for 20% of its driving workforce at the time of the DVSA investigation according to Mr Bouden. Despite being put on notice of this, and the clear unfair competition using such drivers created, and despite the lack of control of those drivers (see below) I was told that as at the date of the public inquiry there were still two self-employed drivers, who I was told had been on a permanent contract, still driving for the operator.

The Upper Tribunal dealt with the issue of self-employed drivers in the appeal case of Bridgestep Limited Tom Bridge T/2019/54 UKUT 0121 (AAC). That case was widely reported in the trade press and through industry trade bodies at the time and therefore it is more likely than not to be known to the HGV and PSV industry at large since its publication.

Mr Bouden told me that self-employed drivers were contracted via limited companies that those drivers had set up for themselves and it was under those limited companies that the drivers were employed. In other words the only contractual arrangement with the operator was a contract between the operator and the limited company set up for each driver and as a result there was no contractual arrangement between the operator and the driver. That is exactly what the Upper Tribunal dealt with in the Bridgestep appeal where they upheld the revocation of the operator’s licence.

The reasons for the Upper Tribunal upholding the determination of the Traffic Commissioner were simply this; (a) there was an unfair commercial advantage gained because the operator did not pay the drivers tax, national insurance, holiday pay, sick pay, pension, maternity/paternity pay and therefore there was a significant cost saving to the operator compared to operators who employed drivers on a PAYE basis and (b) because there was no contract with the drivers the operator could not instruct a driver to do anything that the driver did not want to do. That meant the operator could not ensure that the general undertakings (as quoted in paragraph 28 above for example) were being fulfilled as it had no power to ensure that they were.

There was, I have found, no material difference here between this operator and Bridgestep. Mr Bouden talks about unfair competition practises of other operators using self-employed drivers in his witness statement. That is somewhat hypocritical because as at the date of the public inquiry he was still using two drivers who were self-employed through a limited company when he accepted he was not paying their tax, national insurance, holiday pay, sick pay, maternity/paternity pay and pension contributions. He further accepted that because the contract was through a limited company he could not tell the drivers what to do if they did not want to do what he said.

I was not, and am not, persuaded by the arguments advanced that because there is a shortage of drivers prepared to work on a PAYE basis there is a need to use self-employed drivers as detailed above. The law is the law and the appeal case of Bridgestep is clear and has been in the public domain for over 4 years.

The transport manager’s failure to arrive at the public inquiry on time and when there was no reasonable excuse advanced is unacceptable conduct. It was rude, it was disrespectful to myself as the Traffic Commissioner, it meant the conjoined driver conduct hearings had to be delayed and it meant the public inquiry started 35 minutes late. It is misconduct from which I have made an adverse determination in relation to Sophie Baugh’s good repute as a transport manager.

The operator’s failure to arrive at the public inquiry on time and when there was no reasonable excuse advanced is unacceptable conduct. It was rude, it was disrespectful to myself as the Traffic Commissioner, it meant the conjoined driver conduct hearings had to be delayed and it meant the public inquiry started 35 minutes late. It is misconduct from which I have made an adverse determination in relation to this operator’s good repute.

There were some positives (although some were qualified) as follows:

• The operator had begun implementing new systems in relation to drivers hours and tachograph compliance before the DVSA stop on 4 May 2023. This is clearly qualified by the fact that serious and serial non-compliance continued right into 2024 so limited credit is given as a result as it does not matter what your system is, it is what comes out from it that counts. Here the new system did not result in compliance or the avoidance of serious offending by drivers and it did not deal with those drivers found to have committed serious or serial breaches via robust disciplinary action.

• Maintenance compliance appeared to be satisfactory overall. I have given credit for that.

• Sophie Baugh, transport manager, has recently completed transport manager CPC refresher training. Credit is given for that.

• There has been a heavy investment in technology to allow quicker checks to be undertaken on drivers and their compliance with EU drivers hours, GB drivers hours and tachograph laws and rules. Credit is given for that.

• The operator and the transport manager fully co-operated with the DSVA at every touch point. This is qualified because the supplemental DVSA report does not give full explanations for some serious findings made by the traffic examiner when the operator (a) should have been able to do that with the traffic examiner upon receipt of the report through its digital tachograph card and vehicle unit analysis if it was fully co-operating and (b) by the date of the public inquiry full explanations should definitely have been made to me but they were not. In addition the traffic examiner stated in his supplemental report on page 2 “…I found most to be in order with the acceptance of missing data for 4 drivers…” Despite the qualification I have made credit (but not full credit) has been given.

• The operator promised to undertake a full audit in the future. I have given credit  for that but the operator really should have done that before the public inquiry.

• Both the operator and the transport manager promised to be fully compliant in the future. I pressed them both and neither thought they were setting themselves up to fail despite me making it clear that the DSVA will be paying them an unannounced follow up visit in the near future. Credit has been given for the promises made.

• This is the operator’s first public inquiry. This is qualified by the 2 previous warnings from the Traffic Commissioner when there has never been a clear 5 year period without some intervention by the Traffic Commissioner. Limited credit is therefore given for this being the operator’s first public inquiry.

• The operator had already begun taking steps to limit its transport contracts/obligations to take account of the likely regulatory action that I would take. Credit is given for that as it reflects a realisation on the part of the operator that things have to change.

10. BALANCING EXERCISE

Significant evidential weight was given to the negatives in this case as they put road safety at risk and those serious negatives persisted right into 2024 despite the DVSA stop in May 2023. In addition, the operator was still using self-employed drivers as detailed above right up to the date of the public inquiry. Balanced against that were the positives for which I have given as much credit (evidential weight) as I can. Looking at the operator as it appeared before me, and after weighing up the negatives and the positives as I found them to be, I have determined that the balance tips squarely in favour of the negatives.

Having made that determination I have then considered statutory document number 10, Annex D in particular, issued by the Senior Traffic Commissioner. Mr Oliver had submitted to me in his closing address that this case fell into the “Serious” category for consideration of regulatory action. I agree with that assessment although I have found the operator to be at the higher end of the scale.

11. DECISIONS AND REASONS FOR THOSE DECISIONS.

I have next asked myself the Priority Freight question. I have thought about this for quite some time as the operator and transport manager failed to impress me upon the issue of effective management control of the general undertakings recorded on the operator’s licence (as quoted in paragraph 28 above). In the interests of fairness, and after reminding myself about the promises made by the operator and transport manager that there would be full compliance going forward, I have answered the Priority Freight question in the positive and have decided to trust them both one last time.

I have therefore decided that this operator can retain its good repute. The operator’s good repute is now marked as “very badly tarnished but not lost.”

Sophie Baugh, as the transport manager, has allowed road safety to be put at risk on her watch and she has failed to be effective in her statutory role as the law requires her to be at all times. Only as a result of her recent training, the promises to get things right and the knowledge that if she fails again, she will not be given a second chance have I let her keep her good repute as a transport manager. But that comes with a catch as I will explain in due course. Her good repute as a transport manager is now marked as “severely tarnished and hanging by the thinnest of threads”. She is given a “First and Final” written warning that will remain on her file for 5 years.

The catch I mentioned is this; Statutory Document number 10, Annex D, states that for a first public inquiry the entry point for any period of disqualification is 1-3 years. If this transport manager comes back to a further public inquiry in the next 5 years where an adverse determination is made resulting in the loss of her good repute as a transport manager then I would consider an entry point for the resulting mandatory disqualification to be 3 or more years.

The proportionate regulatory action for the operator is a permanent variation of the conditions on the operator’s licence. The conditions upon this operator’s licence are varied from 2359 hours on 26 April 2024 such that its authorisation is then reduced from 18 vehicles to 14 vehicles under section 17(3)(aa) of the Act because the general undertakings, detailed below, on the operator’s licence were breached:

• The laws relating to the driving and operation of vehicles used under the licence were observed; and/or

• The rules on drivers hours and tachographs are observed and proper records kept.

No variation application to increase authorisation will be considered unless it is accompanied by a drivers hours, tachograph, missing mileage and working time (Road Transport Working Time Regulations 2005) compliance audit from a competent, accredited and independent provider that is marked as “Satisfactory” in every area of compliance audited.

The reasons why a permanent variation of the conditions are required is because I need to know that this operator is able to operate a fully compliant fleet of vehicles before I will allow it to return to its previous licence authority. A temporary (time limited) reduction in vehicle authorisation would not give me that confidence as I would not know that the operator was fully compliant at the point in time that its authorisation was automatically returned. A permanent variation of the conditions is also required so that a sufficient marker is placed on this operator’s file so show just how close it had come to losing its operator’s licence. A permanent variation of the conditions is also required so that the right message goes out to well informed members of the industry to show that robust action will always be taken in this jurisdiction when serious and/or serial offending on the watch of the operator and/or transport manager is still taking place months after a DVSA investigation has brought the problems to the operator’s/transport manager’s attention.

12. UNDERTAKING OFFERED BY THE OPERATOR AND WHICH IS NOW SPECIFIED ON THE OPERATORS LICENCE

The operator offered me the following specific undertaking in the hearing which I accepted:

“The Office of the Traffic Commissioner in Birmingham will have received original or certified/authenticated bank statements for the complete months of July, August and September 2024 no later than 30 October 2024. No reminders will be sent to the operator and no excuses that correspondence was lost/delayed in the post will be accepted. If these documents are not received on time, or if they not demonstrate the appropriate financial standing required for the operator’s licence authorisation, then the in chambers revocation process will be started.”

13. RETURN OF THE LICENCE DISC

The operator currently has 15 licence discs issued to it. As a result of this decision the surplus disc must be received at the Office of the Traffic Commissioner in Birmingham no later than1400 hours on 08 May 2024.

14. FURTHER DVSA INVESTIGATION

I have asked the caseworker to request a further DVSA TEVR at some point in the near future. Suffice it to say that if the DVSA investigation that I have requested and/or any audit supplied by the operator (as above) is marked as anything less than “Satisfactory” then the operator and transport manager will be called back before me.

Traffic Commissioner Mr M Dorrington

03 April 2024.