Decision

Decision for J P Transport and Tracy Chappell

Published 11 May 2021

1. DECISION

2. OF THE DEPUTY TRAFFIC COMMISSIONER FOR THE NORTH EAST OF ENGLAND

In the matter of the Goods Vehicles (Licensing of Operators) Act 1995 (The Act)

2.1 Philip Andrew Chappell & Joshua Ryan Chappell trading as J P Transport OB2019862

&

2.2 Tracy Chappell Transport Manager

Virtual Public Inquiry held on 8 April 2021

3. Background

Philip Andrew Chappell & Joshua Ryan Chappell trading as J P Transport is a partnership and holder of a Standard International Goods Vehicle Operator’s licence for 1 vehicle and 1 trailer, granted on 1 March 2019. The nominated Transport Manager (TM) is Tracy Chappell.

Regrettably, it seems that the whole of the two-year period since the grant of the licence has been problematic, marked by the operator’s failure to respond to requests of this office or to communicate in timely fashion.

4. Events during the life of the licence

The licence had been granted with a specific undertaking requiring financial standing to be demonstrated afresh by 31 October 2019; the relevant evidence being bank statements for the period July to September 2019 inclusive.

The operator was unresponsive to reminders issued in November 2019 and January 2020. Whilst a response was eventually provided on 28 January 2020, it simply referred to [REDACTED].

When further requests for bank statements were also ignored, the Traffic Commissioner directed that Propose to Revoke (PTR) processes were initiated on 9 April 2020. The operator’s reply on 20 April [REDACTED]. Again, no bank statements were provided.

Finally, on 3 June 2020, bank statements were produced, [REDACTED]. The decision was made to cease PTR.

The Traffic Commissioner was concerned however that compliance standards might have suffered and requested a DVSA Desk Based assessment (DBA) be undertaken. DVSA made the request for data and other evidence on 15 July 2020, but the process was delayed by a request by the operator for an extension to the time limit for the provision of the required material. Whilst the extension was granted, no further response was received by DVSA.

So, on 16 September 2020, the Traffic Commissioner directed that PTR processes were recommenced. Close to two weeks later, the operator made contact, blaming the lack of response and the absence of data passed to the DVSA on accidental water damage and a subsequent fire, which had caused damage both to a laptop, and to the backup USB drive, which had itself been destroyed in the fire. The operator requested a formal meeting with the Traffic Commissioner.

On 6 November 2020, because the DBA process had failed, a Vehicle Examiner commenced a ‘live’ maintenance investigation by visiting of the operator’s premises. The outcome of his investigation was recorded as ‘unsatisfactory’. Adverse findings related to inspection and maintenance records, driver defect reporting, inspection facilities and maintenance arrangements and the assessment of the role of the TM. The operator did reply to the report.

On 13 November 2020, a Traffic Examiner also visited. Her Traffic Examiner Visit Report also had an ‘unsatisfactory’ outcome, raising a series of issues fully set out in the brief.

5. The calling-in to Public Inquiry

The calling-in referred to breaches of conditions, to statements which were false or unfulfilled, to breaches of undertakings and material change. The matters were considered to be of such seriousness that the operator’s good repute, financial standing and professional competence was brought into question. Similarly raised, was the repute and professional competence of the TM.

The operator never acknowledged the calling-in to Public Inquiry. It has not provided any of the documentation requested to be provided in advance of the hearing. Once again, no financial evidence has been produced. Attempts by my clerk to chase up the operator in the days coming up to the hearing have proved fruitless: emails have not been replied to and even though the telephone rings out, it has never been answered. No person has attempted to join the virtual meeting today, details of which were provided to the operator and TM.

I can only assume that the operator and the TM have voluntarily absented themselves from the Public Inquiry. I am not satisfied that adjourning proceedings at this stage would be likely to cause the operator to respond to the calling-in, against the background described. In these circumstances, I have determined that I should proceed in absence and to issue this written decision.

I have read and taken into account the reports of the VE and the TE, which I accept as credible. I am satisfied there have been breaches of the conditions and undertakings attached the licence and the absence of any financial material, and the long history of being unable to meet it, that it is more likely than not that there has been material change. Whilst some emailed responses included in the brief have been lengthy, there has been little, or no understanding shown by the operator of its responsibilities to the regulator. The apparent failure to engage in the regulatory process or attend the hearing is a serious concern in that regard.

The findings of DVSA reflect fundamental concerns in terms of compliance in what is, of course, a very modest business. Examples include that records do not show any defects ever identified by the driver in 92000 kms of driving, preventive maintenance inspections came-in house without notice and the vehicle unit of the single vehicle in use had never been downloaded during the life of the licence. I do however record that these concerns are not mirrored in prohibitions issued or in the MOT failure rate.

I do find there are grounds for making a direction against licence under Section 26 (1) (b), (e), (f) and (h) of the Act.

I have gone on to consider whether the repute of the operator and its TM have been lost. I have balanced on the one hand, the absence of prohibition at roadside, albeit that the licence has for the most part been operated during the restrictions of the pandemic, and I note the assurances made following the VE’s visit, although patently, I have been deprived of the opportunity to check if they have been carried out.

Balanced against these matters, however, is a persistent failure to respond to legitimate contacts from my office or DVSA, necessitating a disproportionate amount of time being spent on this operator to get the hearing (which the operator itself requested) but which neither the operator, nor its TM have engaged in. Basic failures are evident from the reports of the Vehicle Examiner (VE) and Traffic Examiner (TE) and I find that I am unable to conclude that the risk to road safety is not an increased one. [REDACTED].

When I ask myself whether it is likely that this operator will be compliant in the future, I conclude that I am unable to answer that question positively. Very substantially during the short life of the licence, the operator has demonstrated the opposite. When I go on to ask myself if it is proportionate that the operator be excluded from the industry at this time, I conclude that this is entirely justified. The risk to road safety and the prejudice to fair competition in the industry will be undermined if I were to take any other course.

On findings therefore Section 27 (1) (a) in respect of the operator’s lack of good repute, professional competence, and financial standing, I revoke this operator’s licence. I do not find that suspending the licence would be a sufficient outcome. I acknowledge that contracts and business relationships will be lost, as will the employment of one partner, as the driver.

I allow a very short period to pass in order that an orderly closedown of the business may be achieved. I do so only because I do not know whether the vehicle is being operated or not. The licence will terminate at 23.45 hours on Friday 16 April 2021.

I propose to exercise my powers to disqualify the partners in respect of their holding of an operator’s licence in any capacity indefinitely. Once again, I record I have been deprived of the opportunity to make my decision on this matter having heard representations from the two partners, who, I understand, are father and son, and to address the particular roles they have played. I therefore settle on an indefinite period not because a very lengthy period out of the industry is necessarily required, but because a more finessed calculation is impossible.

As to the TM, Tracy Chappell, I am frankly dismayed to find that a TM, who must be aware of her particular responsibilities for the continuous and effective management of transport operations has chosen not to respond to the calling-in, thereby clearly placing her good repute in jeopardy. She is criticised in the VE’s report and her failure to provide data or to manage drivers’ hours compliance as set out in the TE report is such that I am unable to conclude that I can trust her in the TM role. I find her repute to have been lost. It is a mandatory requirement that I must order her to be disqualified from acting as a TM. For the reasons already outlined in relation to the disqualification of the partners, I consider that for now an indefinite disqualification is appropriate in this case too.

In reaching this decision, I have taken into account, so far as they are relevant, the additional balancing factors and contingency arrangements which might apply as a result of the COVID-19 Pandemic, embodied in the Senior Traffic Commissioner’s issued, additional guidance.

Simon Evans

Deputy Traffic Commissioner

North East of England Traffic Area

8 April 2021