Decision

Decision for 24/7 Elaine’s Minitravel Ltd (PG2008505) & TM, William Gary Crowley & Stephen Cutajar T/A Swansea Motor Vehicle Contractors (PG1068365)

Published 16 November 2022

0.1 In the Welsh Traffic Area

1. Written Decision of the Traffic Commissioner

1.1 24/7 Elaine’s Minitravel Ltd (PG2008505) & Transport Manager, William Gary Crowley

1.2 & Stephen Cutajar T/A Swansea Motor Vehicle Contractors (PG1068365)

2. Background

Stephen Cutajar, trading as Swansea Motor Vehicle Contractors, holds a Restricted PSV Operator’s Licence authorising 2 vehicles, granted on 20 April 2007. In March 2021, the Driver and Vehicle Standards Agency (“DVSA”) carried out a pre-visit preparation investigation in relation to the licence and discovered a 100% failure rate for the vehicles specified on Stephen Cutajar’s licence. It was further discovered that, although Mr Cutajar had written to the Office of the Traffic Commissioner on 22 February 2018 to advise that he had sold the two minibuses that he had at that time, they remained specified on his licence. The operator had not surrendered his licence, one of the vehicles remained at his operating centre and the DVSA were concerned about links to another operator – 24/7 Elaine’s Minitravel Ltd PG2008505 (“Elaine’s”). DVSA were unable to establish the nature of Mr Cutajar’s operations and he was initially called to a public inquiry on 21 October 2021 at Pontypridd to explore those concerns. Mr Cutajar wrote to my office on 22 October 2021 seeking to surrender his licence, however his surrender request was not accepted in view of these regulatory proceedings and the licence remains valid. The inquiry listed for October 2021 was adjourned to allow for re-listing of the case as a conjoined public inquiry hearing with Elaine’s Minitravel on 27 January 2022 at Pontypridd.

24/7 Elaine’s Minitravel Ltd holds a Standard National PSV Operator’s Licence authorising 2 vehicles, granted on 9 February 2018. There are two company directors, Michael Jones and Elaine Jones. The transport manager nominated on the licence at the time of grant was William Gary Crowley. DVSA Vehicle Examiner (“VE”) Geraint Dean conducted an announced investigation of Elaines’ operations on 30 March 2021. His maintenance investigation visit report highlighted areas that were unsatisfactory, including that the operator was not operating from the operating centre specified on its licence, and apparently had not been doing so for years. The nominated transport manager, William Crowley, remained specified on the licence but was no longer acting as transport manager and had not done so for some months. Driver detectable defects were found at periodic maintenance inspections (“PMIs”) with no record of them having been reported. Driver reports remained in books, were not handed in or any rectification work done. On more than one occasion, despite the driver indicating defects on the reverse of the sheet, these were signed off as nil defect reports. The VE found inspection facilities and maintenance arrangements were unsatisfactory, the maintenance providers specified on the license was not being used and there was no evidence of rolling road brake tests being done. The VE produced a supplementary statement on 21 December 2021 advising that the operator’s MOT failure rate was 100%, prohibitions had been issued to the operator’s vehicles, there was incorrect vehicle information on the licensing system (despite the operator having previously been advised by the VE to update it) and an apparent unwillingness to co- operate with DVSA. The operator was called to a public inquiry at Pontypridd to consider these issues, conjoined with public inquiry to consider the licence of Stephen Cutajar, on 27 January 2022 at Pontypridd. William Gary Crowley, former transport manager, was also called to the inquiry to consider whether he continued to meet the requirements to be of good repute and to be professionally competent.

3. Hearing

The Public Inquiry was listed for 27 January at 10.30am at the Office of the Traffic Commissioner for Wales in Pontypridd and went ahead on that date. Michael Jones, director of Elaine’s, appeared on behalf of the company and was represented by Scott Bell, solicitor, of Backhouse Jones. William Crowley, former transport manager of Elaine’s attended, unrepresented. VE Geraint Dean attended from the DVSA. Stephen Cutajar did not attend. I was advised by Mr Bell that Stephen Cutajar had apparently told his client that he had tested positive for Covid 19 and so would not be attending the hearing. I was satisfied that Mr Cutajar had been properly served with the call-in letter notifying him of the public inquiry. Mr Cutajar did not contact my office in advance of the hearing to advise that he was unable to attend and nor did he do so subsequently to explain his non-attendance. In the absence of medical evidence or good reason, and having regard to the Senior Traffic Commissioner’s Statutory Document 9 on case management, I decided to proceed with the hearing in Stephen Cutajar’s absence.

There was insufficient time to conclude the hearing on 27 January 2022 and so the inquiry was part heard and adjourned. Before adjourning the hearing, in view of the evidence given at the inquiry, I made four case management directions in the following terms:

• Mr Crowley to produce the evidence he referred to during PI (letter to central licensing office);

• DVSA Traffic Examiner to produce a statement identifying any concerns with the tachograph/drivers’ hours records and documentation produced by the operator (Elaine’s) for PI. This will specifically address concerns raised in evidence at PI regarding the use of more than two authorised vehicles on the same day and regarding instances where unidentified drivers have driven immediately before and after named drivers, indicating no change of driver and drivers’ hours compliance breaches;

• OTC official to produce a statement, with reference to the operator’s (Elaine’s) VOL record, identifying all variation applications and/or notifications made by the operator regarding Operating Centres. This statement should also include any decisions made by the TC or staff under delegation regarding the operator’s Operating Centres; and

• Scott Bell to provide details of any relevant legal argument, including argument that changes to PSV Operating Centres do not require to be made by way of variation application and regarding any exemptions from working time directive and/or drivers’ hours requirements that the operator (Elaine’s) may be relying on.

The hearing resumed at 10.00am on 15 July 2022 at the Office of the Traffic Commissioner for Wales in Pontypridd. An earlier hearing had been listed, however this was adjourned due to industrial action by the rail industry on that date, which would have made attendance by some of the parties difficult. Michael Jones, director of Elaine’s, attended the reconvened hearing, again represented by Scott Bell. I was advised that David Evans, the proposed nominated transport manager for Elaine’s was unable to attend the hearing as he was away on holiday. He had been nominated before the hearing on 27 January 2022, however had advised my office that he no longer wished to act in that capacity. However, he had since then been nominated again by TM1 application dated 22 June 2022. William Crowley was not called to the reconvened hearing and the operator (Elaine’s) confirmed that his attendance was not required. Stephen Cutajar did not attend the reconvened hearing and did not contact my office to intimate that he would not be attending. I was satisfied that Mr Cutajar had been properly served with the letter calling him to the public inquiry and with the updated public inquiry brief and that there was no good reason not to proceed. Once again, having regard to the Statutory Document 9, I decided to proceed with the reconvened public inquiry hearing in his absence.

4. Evidence

In addition to the papers in the public inquiry bundles for each operator (original brief and updated brief for the reconvened hearing) I had also been provided, in advance of each hearing, with additional evidence from Elaine’s. For the inquiry on 27 January 2022 this consisted of the finance documents, maintenance and drivers’ hours records which were requested in the call up letter, and a report prepared by Rick Nugent of RHN Consultancy, dated 19 January 2022. For the inquiry on 15 July 2022, this consisted of updated maintenance and drivers’ hours documents and a supplementary PI Report prepared by Christopher Matthews of RHN Consultancy, dated 14 July 2022. I also received a written skeleton argument and submissions from Scott Bell, on behalf of Elaine’s, dated 6 July 2022. No written evidence was submitted by Stephen Cutajar and no written evidence was submitted in advance of the inquiry by William Crowley.

The evidence of VE Dean included in the public inquiry briefs for the hearing on 27 January was adopted by him and Mr Bell indicated that it was not contested by his client. There were some photographs which had been included in the Brief for Elaine’s in error (pages 72 to 81 of the Brief) and I directed that those pages be excluded from the evidence. VE Dean had considered the recent maintenance and drivers’ hours documents provided by the operator for the purposes of the inquiry shortly before the hearing and he gave oral evidence about that documentation. He was questioned by me and by Mr Bell, and I adjourned the hearing for 15 minutes to allow Mr Bell to take instructions from his clients about concerns raised by VE Dean in his oral evidence regarding apparent drivers’ hours/working time directive compliance breaches and use of more vehicles than authorised, which the operator’s own documents appeared to show. Upon reconvening, Mr Bell invited me to make a direction that the same documentation be sent to a Traffic Examiner for consideration, given that VE Dean’s expertise lies in vehicle maintenance matters, not drivers’ hours and tachograph analysis – which had been readily acknowledged by VE Dean during his evidence.

William Crowley gave oral evidence at the inquiry that he was not transport manager on the Elaine’s licence at the time of VE Dean’s visit in March 2021. His evidence was that he had ceased acting in that capacity in August 2020, for reasons of ill health. He stated that he did notify my office of his resignation, by letter sent recorded delivery to the OTC central licensing office in Leeds and that he had proof of that. He had not sent this to my office in advance of the hearing, despite the call-in letter advising him to send any relevant evidence before 20 January, because issues with the medication he’d been taking meant he had not been up to it. Given the importance of that evidence, I allowed a period of 14 days for Mr Crowley to send the relevant documents to my office and issued a direction to that effect. Mr Crowley complied with that direction.

In advance of the reconvened public inquiry hearing on 15 July 2022, updated PI Briefs had been served, including the additional evidence called for, namely a statement from DVSA Traffic Examiner Alexander Thomas (pages 104-121) and a statement from an OTC official detailing communications between the operator (Elaine’s) and OTC staff regarding operating centre changes (pages 122-146). One of the letters mentioned in that statement (letter dated 16 June 2021) was not annexed to it. Although this had been sent to the operator and so Mr Jones was aware of the contents, for completeness, this was served on the operator as an addition to the PI Brief on 14 July 2022. I was also provided with an undated letter from the proposed nominated transport manager, David Evans, which he sent to my office by email on the morning of the reconvened hearing. He apologised for not attending in person, explained that he had recently joined Elaine’s in the role as transport manager and explained his impression of Mr Jones, director of that company, and steps he has taken to ensure past events would not be repeated.

Michael Jones and Christopher Matthews, transport consultant, gave evidence at the hearing on 15 July 2022, responding to questions from both Mr Bell and from me. I heard closing submissions from Mr Bell on behalf of the operator and I then reserved my decision. I was invited to extend the period of grace already in place to allow for the most recent TM1 form nominating David Evans as transport manager to be processed – the latest date that this could be extended to was 6 September 2022, which I did.

5. Findings of fact

5.1 Elaine’s and William Crowley

In relation to the operating centre, on the evidence before me I find that it is more likely than not that the operator has not operated from there or has done so for only a short period following licence grant in 2018. The OTC statement and attachments included in the updated bundle (pages 122-146) demonstrate that since February 2020 the operator has been in intermittent correspondence with OTC central licensing office in an attempt to regularise the position regarding its operating centre. That has not been achieved, mainly due to the operator failing to respond to correspondence. Accordingly, I find that statements made by the operator when applying for the licence have not been fulfilled, namely that vehicles would normally be kept (when not in use) at the operating centre at Unit 14, St David’s Road, Swansea Enterprise Park, Swansea, SA68RX and find that section 17(3)(a) of the Act is made out.

The evidence is clear that the operator failed to comply with the undertakings on the licence that its vehicles and trailers would be kept fit and serviceable as evidenced by the prohibition notices issued and a 100% MOT fail at the time of VE Dean’s supplementary report in December 2021.

Concerns were raised by VE Dean at the public inquiry hearing in January following his review of documentation provided by the operator shortly before that hearing. He expressed concern that it appeared that more than the two authorised vehicles were being used by the operator at the same time and he highlighted instances where unidentified drivers had driven immediately before and after named drivers, which he believed to be indicative of no change of driver and serious drivers’ hours compliance breaches. VE Dean explained that he was concerned about drivers potentially driving for lengthy periods, in one instance for almost 12 hours. I treat VE Dean’s evidence in this regard with caution given that his expertise is in vehicle maintenance, and not tachograph/drivers’ hours analysis. I place significant weight on the evidence prepared for the reconvened inquiry of Traffic Examiner Thomas (statement at pages 104-121 of the updated bundle) and on the evidence of Christopher Matthews of RHN Consultancy, who provided a supplementary PI Report (in which he agrees the analysis of TE Thomas) and who gave oral evidence at the hearing. As regards use of more than the two authorised vehicles at the same time, because of the lack of records identifying for what purpose vehicles were being used, I am unable to make a finding that the operator has used more vehicles than authorised.

I have very carefully considered the evidence about instances of driving when the driver card is removed (usually after about 4 and a half hours when a break would be required) and an unnamed driver then continues driving, particularly instances involving Michael Jones. Whilst I find that these instances do appear suspicious and Mr Jones’ own evidence about one such instance that he could recall I find implausible, at its highest TE Thomas’ evidence is that the operator’s documentation he analysed gives rise to a “strong possibility” that all entries relate to the same driver. Christopher Matthews’ evidence was that the instance as described by Michael Jones during his evidence (when his son took over driving the vehicle immediately after Mr Jones’ card was removed) would be a quick changeover but it would be physically possible. His evidence was that, without the raw tachograph data, it is very difficult to determine when the driving actually stops. Applying the civil standard of proof, I am unable to make a finding that Michael Jones or other drivers deliberately falsified tachograph records by driving without using a tachograph card. It is accepted that the operator failed to comply with the undertaking that it would observe the rules on drivers’ hours and tachographs and keep proper records. There is evidence that the operator had not locked in, by digital company card, the vehicle tachograph units of its vehicles and, prior to the public inquiry hearing in January 2022, and it is accepted that no records were kept in compliance with working time directive requirements nor records of work done in reliance of exemption from EU drivers’ hours legislation (i.e. rail replacement work).

The operator failed to comply with the undertaking that drivers would promptly report defects that could prevent the safe operation of vehicles and that defects would be promptly recorded in writing. The VE found numerous instances of defects which should have been identified by drivers identified on PMI sheets. There were also instances where drivers had noted defects on the reverse of the driver defect report, but these had been signed off as “nil” defect reports.

The operator failed to comply with the undertaking on its licence that the Traffic Commissioner would be immediately informed of any changes or convictions which affected the licence. The operator accepted that the maintenance provider specified on its licence at the time of the DVSA visit in March 2021 was not the maintenance provider being used and this should have been notified to my office. More seriously, Michael Jones accepted that he had not notified my office that his transport manager, William Crowley, had resigned. I find, on the evidence, that Mr Crowley resigned from his position in August 2020 and documentation provided after the first inquiry hearing confirmed that. The operator had been operating vehicles for school transport from September 2020. Mr Jones stated that he did not become aware that Mr Crowley had resigned, and that his business was therefore operating without a transport manager, until October 2020. That, of itself, is a worrying admission as it indicates a lack of communication and oversight of a key individual in terms of operator licence compliance. Mr Jones did accept that for a lengthy period, Elaine’s had operated without a transport manager and that he realised that it was the operator’s responsibility to inform my office of the situation. Accordingly, I find that section 17(3)(aa) of the Act is made out.

It is undisputed that the operator has been issued with prohibition notices by the DVSA in the past 5 years (pages 84-88 of the Brief), including an “S” marked prohibition for a service brake pedal deficiency in December 2021. Accordingly, I find that section 17(3)(c) of the Act is made out.

I accepted the evidence of William Crowley that he had, in fact, properly notified my office of his resignation by recorded delivery letter sent to CLO in August 2020. At that time, the staff in Leeds were largely still working from home and I assume that is why the letter was not

immediately dealt with and uploaded onto the licensing records. It follows that I make no adverse findings in relation to Mr Crowley in his capacity as transport manager.

5.2 Stephen Cutajar

In the absence of any evidence from Stephen Cutajar, I make findings solely on the evidence included in the public inquiry brief and find that the operator has failed to honour the undertakings signed up to when he applied for his licence, namely that his vehicles would be kept fit and serviceable (100% initial fail rate at annual test), and that the traffic commissioner would be immediately informed of any changes or convictions which affected the licence – despite that fact that he no longer owned the vehicles specified on his licence, these remained on the licence and he took no steps to surrender his licence until after these regulatory proceedings commenced. Accordingly, I find that section 17(3)(aa) of the Act is made out.

Mr Cutajar has submitted no financial evidence to demonstrate that he still meets the financial standing requirement, and I therefore must find that he does not and that there has been a material change in his circumstances, namely that he does not have the required financial resources to hold a licence. By his actions of failing to co-operate with my office regarding this public inquiry and failing to attend both hearings, I find that he no longer satisfies the requirement to be of good repute. Accordingly, I find that sections 17(3)(d) and (e) of the Act are made out.

6. Considerations and Decisions in respect of Elaine’s

Having regard to the Senior Traffic Commissioner’s Statutory Document 10, Annex 4, and having considered all the evidence, I place this case in the severe category. Operating without a transport manager from October 2020, when the operator became aware of Mr Crowley’s resignation, until this was picked up by the DVSA during their visit in March 2021 was a deliberate act that gave the operator a clear commercial advantage and compromised road safety. The operator’s solicitor, quite properly, did not seek to underplay this breach in submissions and accepted that it is a serious negative feature to be weighed in the balance in considering regulatory action. There was ineffective management control and insufficient systems and procedures in place to prevent operator licence compliance failings, as evidenced by driver detectable defects found at PMI and drivers’ hours/WTD breaches. There were no analysis procedures in place to detect falsification, drivers’ hours (EC and domestic) and working time directive infringements and insufficient procedures in place to ensure appropriate use of tachograph recording by drivers. The MOT fail rate was very poor (100%) and there had been an “S” marked prohibition issued last year. As regards the operating centre issue, whilst I do make an adverse finding in that regard (as set out above), I do recognise that Mr Jones has for some time been seeking to regularise the position. This was not apparent from the original DVSA evidence. Accordingly, I place less weight on this adverse finding in conducting the balancing exercise. On the positive side, despite a suggestion in the case summary and call-in letters to the contrary, on the evidence I find that the operator did co-operate with the enforcement investigation and there has been no previous unsatisfactory maintenance investigations, warning letters or public inquiries.

I’ve considered the situation now and evidence put forward in that regard. It is clear to me that the operator has taken appropriate action in response to this investigation and public inquiry. There is evidence that effective changes had been made to address the maintenance failings by the time of the public inquiry hearing in January, and VE Dean confirmed that he was satisfied that appropriate procedures were then in place. A new transport manager has been nominated and is now working with the operator and transport consultants to improve compliance. The MOT pass rate has improved. Since the January hearing, I am satisfied that there is tangible evidence that processes have been put in place by the operator, working with

RHN Consultancy, to address the drivers’ hours compliance issues identified. It is recognised by the operator that there is still some way to go in that regard and it proposed a specific drivers’ hours/WTD audit undertaking be attached to its licence to ensure future compliance.

In considering the Priority Freight (2009/225) question, “how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime?” I have had regard to the failures I have found proved and find that the operator’s good repute is severely tarnished by those failings, which I consider were serious. However, in this case I have seen tangible evidence of action taken by the operator and agree with Mr Bell that it is in a different place to where it was in 2021. He suggested that the case is in the serious to moderate category, by reference to the starting points for regulatory action set out in Statutory Document 10. He indicated that the operator accepted the serious nature of its failings and appreciated that regulatory action would be taken which would have a commercial impact on its business. I was addressed on the effects of revocation, curtailment and suspension, explored the financial impact in more detail during the course of the hearing, and heard about upcoming rail replacement commitments.

I consider that a period of suspension is proportionate in the circumstances and the licence will be suspended for 28 days, commencing at 23:45 hours on 14 August 2022. The operator retains its repute, albeit severely tarnished, and this level of intervention reflects the level of progress made to date. The audit undertaking proposed by the operator, specifically addressing record keeping for drivers’ hours and working time directive compliance is appropriate in the circumstances of this case. The undertaking in terms set out at paragraph 3 of my Decision above is attached to the licence.

The application to vary the licence by removing the named operating at Unit 14, St David’s Industrial Estate, St David’s Road, Swansea Enterprise Park, Swansea SA6 8RX and adding a new operating centre for 2 authorised vehicles at Part Yard, Westfield Industrial Park, Waunarlwydd, Swansea, SA5 4SF, is granted and I direct that the licence now be amended to reflect that change.

7. Considerations and Decisions in respect of Stephen Cutajar

I am advised that Stephen Cutajar is no longer operating and wishes to surrender his licence. I have already refused that surrender request and now make the findings set out above, including that he is no longer fit to hold a licence. In the circumstances of such compliance failures and taking into account his previous appearance at a public inquiry in 2017, revocation is the appropriate action. Accordingly, I now direct that the licence be revoked under s17(3)(aa), (d) and (e) of the Act with effect from 23:45 hours on 5 August 2022.

Victoria Davies

Traffic Commissioner for Wales

4 August 2022