Decision

Decision for Alan Whiteford Contracts Ltd (OM0038403)

Published 16 May 2023

0.1 In the Scottish Traffic Area

1. Decision of the Deputy Traffic Commissioner

1.1 OM0038403 Alan Whiteford Contracts Ltd

2. Background

The Operator was granted a standard national licence on 1 November 2000. The Operator has authority for the use of 11 vehicles and 6 trailers. The Operator has 8 vehicles specified on the Licence. Alan Gilbert Whiteford is the sole shareholder and is one of two directors. The other director is Jane Leith, his daughter and the transport operator on the Licence. It is intended that Mr Whiteford’s son, Andrew Whiteford will obtain his transport manager CPC in due course.

The Operator had been at a Public Inquiry on 27 February 2006. On 29 May 2019 the Operator was issued with a strong warning following a maintenance investigation carried out by DVSA officers on 15 April 2019.

3. The Call to Public Inquiry

The Operator was called to the Public Inquiry by letter dated 20 December 2022. The principal reason for the Operator being called to the Public Inquiry was when on 12 July 2022 one of the Operator’s vehicles was stopped during a routine Goods Vehicle Road Check it was discovered that the driver, Mr Whiteford, did not have a HGV class C entitlement on his driving licence.

4. The Public Inquiry

The Public Inquiry took place at Aberdeen on 9 February 2023. The Operator and Mr Whiteford were represented by Callum Anderson, solicitor. Mr Whiteford attended along with his daughter Jane Leith, the Transport Manager, and his son Andrew Whiteford. The DVSA were represented by Traffic Examiner Jill Jarvis.

5. The Evidence

The DVSA evidence was not disputed. On 12 July 2022 Mr Whiteford had been driving one of the Operator’s LGVs laden with branches when it had been stopped by the DVSA. Mr Whiteford was unable to produce his driving licence for inspection. TE Jarvis carried out a check and discovered that Mr Whiteford did not have a HGV class C entitlement on his licence. Mr Whiteford told TE Jarvis that his driving licence was being renewed by the DVLA.

Mr Whiteford was questioned by police about driving without a HGV entitlement. Mr Whiteford told the police that he had received a letter from the DVLA on 30 June 2022 advising him that his HGV entitlement had been removed due to a medical issue. He said that he had only driven the HGV to clear up a site in Aberdeen whilst several of his staff were on holiday.

TE Jarvis carried out an operator visit on 28 July 2022. TE Jarvis interviewed Mr Whiteford:-

“Q – You informed Police Scotland that you had your category C entitlement removed due to medical reasons, is this the case?

• Yeah

• Is there anything that you would like to add with reference to this interview?

• At Christmas time I was advised not to drive for a month until further tests were carried out and when I had to renew my licence in May I received a letter to carry out an eye test which I passed, the licence status is still in progress for medical tests.’

Mr Whiteford had also committed a number of driver’s hours offences:-

• 6 June 2022 exceeded 4 hours 30 minutes driving - Mr Whiteford had driven for a total of 9 hours and 35 minutes without a legal break;

• 7 June 2022 exceeded 4 hours 30 minutes driving – Mr Whiteford had driven for a total of 7 hours and 50 minutes without taking a legal break (he had a 20 minute break);

• 14 June 2022 exceeded 4 hours 30 minutes driving – Mr Whiteford had driven for a total of 6 hours and 10 minutes without taking a legal break (he had a 15 minute break);

• 15 June 2022 exceeded 4 hours 30 minutes driving – Mr Whiteford had driven for a total of 8 hours and 52 minutes without taking a legal break (he had a 24 minute break);

• 16 June 2022 exceeded 4 hours 30 minutes driving – Mr Whiteford had driven for a total of 6 hours and 20 minutes without taking a legal break.

By letter dated 10 August 2022 Mr Whiteford received a conditional offer of a fixed penalty of £100 and 3 penalty points for driving without a HGV entitlement. Mr Whiteford accepted that offer and paid the penalty.

The letter that Mr Whiteford had received from the DVLA on 30 June 2022 (dated 27 June 2022) said:-

“We have received medical information as part of this enquiry [into your fitness to drive] that tells us you had a stroke and due to the risk of recurrence you must not drive.

This means you application for a lorry/bus driving licence has been refused…

Re-application will only be accepted for a Group 2 (lorry or bus) driving licence when you can demonstrate at least 12 months freedom from further episodes and make a satisfactory recovery with no significant neurological problems. You will then be subject to satisfactory medical reports…”

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Mr Whiteford accepted that he should not have been driving on 12 July 2022. He apologised for his mistake. A site needed to be cleared and he was short of staff so he drove when he should not have done. It had been a difficult time for him personally. The Transport Manager, his daughter, had not been aware of what he had done as she was on annual leave at the time. The driver’s hours offences were restricted to a 2 week period and occurred because he had not been driving and he was out of practice

6. Decision

The issue in this case is the effect of Mr Whiteford’s conduct and its effect on the Operator’s repute. Paragraph 1(2)(b)(ii) of Schedule 3 to the 1995 Act allows me to assess the conduct of directors, such as Mr Whiteford, when deciding whether an operator which is a company is of good repute.

There are two questions that I have to consider:-

(First) how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime?

(Second) is the conduct such that the Operator ought to be put out of business?

I have conducted a balancing exercise. In the Operator’s favour this is the first occasion when the conduct of its directors has cast doubt on the Operator’s repute - the strong warning that was issued in 2019 related to maintenance issues. Since 2019 there have been no other significant issues with the Operator. I have no doubt that Mr Whiteford’s decision was his alone. His co-director and transport manager was on annual leave and was not a party to his decision, nor could she have taken any steps to prevent his behaviour.

The problem is the very serious conduct of Mr Whiteford in June and July of last year. He drove a LGV when he had been told by the DVLA that he was not fit to do so. Mr Whiteford may have believed that he was fit to drive, however, that was not his decision to make. If Mr Whiteford disagreed with the decision he could have either appealed the decision or he could have produced evidence to the DVLA to seek to persuade them to change their mind. What he could not do was to flout the DVLA’s decision and decide to drive a LGV because it was, in his opinion, necessary for him to do so in order to benefit his business. Mr Whiteford’s decision to drive a LGV when he had been told that he was not fit to do so, because it suited his business showed a shocking disregard for the safety of other road users.

Mr Whiteford has shown by his actions that he is prepared to ignore the law when it suits the interests of his business. Operator’s licensing is based on trust

– Martin Joseph Formby t/a G & G Transport T/2012/ 34 at paragraph 17:-

“Traffic Commissioners must be able to trust those to whom they grant operator’s licences to operate in compliance with the regulatory regime. The public and other operators must also be able to trust operators to comply with the regulatory regime.”

I am satisfied that his behaviour shows that Mr Whiteford cannot be trusted to comply with the regulatory regime.

Turning to the second question - whether or not this operator ought to be put out of business, I am satisfied that this operator ought to be put out of business. The integrity of the operator’s licensing regime would be compromised if operators thought that they could ignore a decision that a driver should not drive on medical grounds because it did not suit the needs of the business. If other operators heard of Mr Whiteford’s behaviour would they consider the Operator to be of good repute? I am satisfied that in these circumstances they would not. I find that it is a proportionate response to Mr Whiteford’s behaviour, as a director of the Operator, to find that the Operator has lost its repute in terms of section 26 of the Goods Vehicles (Licensing of Operators) Act 1995.

However, I should make it clear that it is Mr Whiteford’s conduct as director that has led to my decision. I accept that Mr Whiteford’s daughter (the director and transport manager) and his son, who is responsible for the maintenance of the Operator’s vehicles, are innocent of any blame. My concern is that Mr Whiteford cannot be trusted and therefore should not have any role in this business which would require him to be trustworthy – such as being a director. I have heard from Ms Leith and Mr Andrew Whiteford. I would have no objection to granting a new licence if they were to be the directors of the Operator. I direct that any application should be forwarded to me for my consideration.

I do not have an issue with Mr Whiteford remaining the sole shareholder of the Operator – it is a business that he has built up over many years and it would not be fair to deprive him of the benefit of his investment of time and money over the years. My concern is that he should not be a director of the Operator if the Operator wishes to hold an operator’s licence.

I order that the revocation will take effect from 23:59 31 July 2023 to enable the Operator to, if it wishes, to make a new application, to enable the business to continue without interruption.

Jane Leith, as Transport Manager, retains her good repute.

Hugh J. Olson

Deputy Traffic Commissioner for Scotland

30 March 2023