Decision

Decision for Alex Macdonald t/a A & N Removals (OG1144468) & Transport Manager, Neil Macdonald

Published 16 November 2022

0.1 In the Welsh Traffic Area

1. Written Decision of the Deputy Traffic Commissioner

1.1 Alex Macdonald t/a A & N Removals (OG1144468) & Transport Manager, Neil Macdonald

2. Background

The operator holds a Standard Operator’s Licence to operate two vehicles from Plot 16N, Eastern Avenue, Waterloo Industrial Estate, Pembroke Dock, SA72 4RT. The licence was granted on 25th April 2016.

Neil Macdonald (9.1.54), is the designated Transport Manager.

On 16th January 2019, a driver working on behalf of the operator was stopped by DVSA examiners. On 10th July 2019 the driver was convicted of 8 drivers’ hours offences:

1. Exceed 4.5 hrs driving without the required break or breaks – Fined £153

2. Drive a vehicle on road otherwise than in accordance with a licence – Fined £76

3. Exceed 4.5 hrs driving without the required break or breaks – No separate penalty
4. Exceed 10 hrs driving – Fined £153
5. Depth of tyre tread less than 1mm – Fined £153
6. Insufficient rest within 24hr period – Fined £153
7. Exceed 10hrs driving – No separate penalty
8. Insufficient rest within 24hr period – No separate penalty

In 2021, DVSA Vehicle Examiners and Traffic Examiners commenced an investigation into the operator’s compliance with the statement of intent and undertakings on the licence.

VE Williams’ report, dated 4 October 2021, set out the following concerns:

• Unauthorised use of an operating centre at Thornton Industrial Estate, Milford Haven, SA73 2RX, with vehicles parked on the roadside near the operating centre when not in use.
• Unsatisfactory inspection and maintenance records and alleged use of vehicles not registered on the licence.
• Unsatisfactory driver defect reporting system and concerns regarding the validity of documents presented.
• Unsatisfactory inspection facilities and maintenance arrangements.
• Lack of wheel and tyre management system.
• Unsatisfactory system to ensure appropriate load security, the operator has a 100% overloading prohibition rate.
• Unsatisfactory prohibition assessment, including immediate prohibitions and safety critical defects detected and prohibited during roadside examinations.
• Evidence of shortcomings as regards the transport manager, Neil Macdonald. The transport manager appears not to have undertaken any further continuous professional development since qualifying in 2016. He has also been reported by DVSA as being uncooperative and has refused to facilitate communications between DVSA and the Operator.

2.1 TE Thomas’ report, dated 6 October 2021, set out the following concerns:

• 4 encounters, a total of 12 offences have been recorded, resulting in £100 fixed penalties issued. Two prohibitions have been issued by a Traffic Examiner. Driver acting on behalf of operator successfully prosecuted by DVSA.
• Lack of management control by the transport manager.
• Lack of effective system being used to monitor driver CPC.
• Lack of effective system for checking of records and downloaded data, for example several infringements were identified including exceeding 4.5 hours driving without a qualifying break and insertion of driver card whilst driving.
• Concerns regarding the validity of documents presented.
• Unsatisfactory system for managing working time as data used in calculations is often incorrect.
• Lack of effective disciplinary procedures in place.
• Unauthorised use of an operating centre.
• Evidence of shortcomings as regards the transport manager, Neil Macdonald.
• Lack of cooperation and communication by the operator and transport manager with DVSA.

Since the licence was granted on 25 April 2016, there have been 4 encounters involving a Traffic Examiner, which have resulted in a total of 12 offences recorded and £100 fixed penalties issued.

By a call-up letter dated 1st December 2021, the operator and transport manager were called to attend a public inquiry to address the concerns. The initial hearing date of 13th January 2022 was vacated at the request of Solicitors on behalf of the operator and transport manager.

Notice of the reconvened hearing on 8th February 2022 was duly served on the operator and transport manager in January 2022.

On the 7th February 2022, the Central Licensing Unit in Leeds received a request to surrender the operator’s licence.

3. The Public Inquiry

At the hearing DVSA examiners attended but there was no appearance by the operator or transport manager.

I am satisfied that notice of the date of the hearing has been received by both parties. The transport manager was involved in e-mail correspondence with the Office of the Traffic Commissioner as late as the evening prior to the inquiry. He has outlined his considerable medical difficulties and he described himself as an “ex/former transport manager” for the licence. However, it was pointed out to him that he still holds the statutory position and responsibilities of a transport manager and neither he, nor the operator, has submitted details of an alternative nominee.

The operator has made no contact with the OTC apart from the submission of the surrender application on 7th February 2022. Solicitors acting for the operator in December 2021 wrote on 8th January to withdraw from the record. Further copies of the public inquiry brief were sent by email to the operator’s registered communication address on 12th January 2022.

4. Findings on the Evidence

The evidence contained in the DVSA investigation reports and statements has not been challenged by the operator. The investigation appears comprehensive, fair

and objective and the lack of involvement/direct response from the operator and the antipathy/non-cooperation from the transport manager are matters of great concern.

I accept the DVSA evidence in its entirety and make the following formal findings against the operator:

• Operating from an unauthorised operating centre – Section 26(1)(a). Vehicles were seen parked on the roadside outside of the specified operating centre and an unauthorised operating centre at Milford Haven was being used to park vehicles.
• Breached the conditions on the licence; Sections 26(1)(b) (4), (6) and (9) – failed to notify relevant events.
• Driver incurred relevant convictions in the past five years – Section 26(1)(c) (i) and (ii).
• Vehicles/drivers issued with prohibition notices – Section 26(1)(c)(iii) including Immediate prohibitions and safety critical defects.
• Drivers have been issued with relevant fixed penalty notices in the past five years – Section 26(1)(ca).

• The following statements made when applying for the licence were either false or have not been fulfilled:

  1. that vehicles would be inspected at regular 6 weekly intervals;
  2. that you would notify the traffic commissioner within 28 days of any convictions incurred by the licence holder or its employees, of any changes to the maintenance arrangements, or of any changes in financial status that might affect the licence;
  3. that vehicles would normally be kept (when not in use) at the operating centre at Plot 16N, Eastern Avenue, Waterloo Industrial Estate, Pembroke Dock, SA72 4RT;
  4. that you failed to declare that a driver had convictions which were required to be notified to the traffic commissioner;
  5. that you would abide by any conditions which may be imposed on the licence.
• Not honoured the undertakings signed up to when applying for the licence -Section 26(1)(f) - namely,
  1. that vehicles [and trailers] would be kept fit and serviceable;
  2. that the rules on drivers’ hours and tachographs would be observed and proper records kept;
  3. that 15 months of driver defect reports, safety inspections and routine maintenance would be kept and made available on request;
  4. drivers would report promptly any defects or symptoms of defects that could prevent the safe operation of vehicles and/or trailers, and that any defects would be promptly recorded in writing;
  5. the traffic commissioner would be immediately informed of any changes or convictions which affected the licence.
• since the licence was issued, there has been a material change in the circumstances of its holder, namely not having required financial resources to hold a licence – Section 26(1)(h).
• Using more vehicles than authorised – Section 6(3) – Observations and ANPR sightings support VE’s assertion that vehicle PN07 JBX was being used by the operator despite not being specified on the licence.

The call -up letter requested proof of financial standing and other documentation at least 21 days prior to the hearing. The operator has failed to submit documentation and as a result financial standing has not been established under section 27(1)(a) of the Act.

The VE and TE identified serious anomalies in maintenance and tachograph records including:

• Dates on driver defect reports being out of sequence.
• Mileage discrepancies and alterations on safety inspection sheets.
• Destination on tachograph records differing from location of vehicle on safety inspection sheet.
• Decelerometer brake test recorded yet tachograph data shows vehicle not moved.
• Falsified dates on infringement reports and the transport manager’s signature date pre-dating the report date.
• Reports for drivers who were not identified in the documentation supplied by the operator.
• Maintenance provider admitted to signing safety inspection sheets that were presented to him by operator/transport manager, completed, for signature.

In addition to the anomalies, there are numerous serious drivers’ hours offences identified by the TE and apparently not acted upon by the operator/transport manager. The transport manager has been obstructive and hostile to DVSA examiners and the operator has failed to engage with the investigation in an appropriate manner. Opportunities to explain the numerous anomalies have been rejected prior to the hearing and in the absence of the operator and transport manager today I conclude that there has been deliberate falsification and withholding of information.

All of the above findings must reflect on the repute of the operator and transport manager and I deal with that issue below.

5. Considerations and Decisions

Failing to co-operate, failing to declare convictions of drivers, falsification of maintenance documentation amount to the most serious mis-conduct and they are wholly inconsistent with the relationship of trust that needs to exist between an operator and the traffic commissioner.

I place the operator’s conduct in terms of the Senior Traffic Commissioner’s Statutory Document No. 10 – “Principles of Decision Making”, in the “Severe” category as deliberate or reckless acts that compromised road safety. I refer in particular to the falsification of maintenance and drivers’ hours records and the persistent failures, with inadequate response.

The starting point for regulatory action is revocation with detailed consideration of disqualification having regard to the absence of positive features and/or a commitment to change from the operator.

I consider the Priority Freight (T/2009/225) question; “how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime?” and answer, highly unlikely. The operator has declined to co-operate with the investigation or the public inquiry and has sought to surrender the licence. It is hard to determine what the operator’s role with regard to this licence has been. Alex Macdonald failed to engage appropriately with DVSA examiners and all recent communication has been from his father, transport manager, who appears to have an irrational hostility to DVSA.

With regard to the Bryan Haulage (no.2) (T/2002/217) question, “is the conduct such that the operator ought to be put out of business?” the answer is firmly “yes”.

I find that the operator has lost his good repute and that entails revocation of the licence under section 13A(2)(b) and section 27(1)(a) of the Act.

In the absence of any financial evidence the licence is also revoked under section 13A(2)(c) and section 27(1)(a) of the Act.

I find that the transport manager has failed to demonstrate “continuous and effective management” of the licence. I note the serious health problems experienced by Neil Macdonald and I have sympathy with his conditions. However, there has been ample opportunity for the operator and transport manager to make alternative arrangements and relieve him of the burden of the transport manager responsibilities. In the absence of somebody fit and able to carry out those functions, the safety of vehicles and the safety of the road-travelling public have been compromised and this is unacceptable.

The transport manager has sought to resign from the licence but the severity of the failings and his inappropriate responses are such that I find loss of good repute as a transport manager.

In the absence of a transport manager satisfying the good repute requirement, professional competence is lacking for the operator and the licence falls to be revoked under section 13A(2)(d) and section 27(1)(a) of the Act.

In addition to the mandatory grounds under section 27, the licence is also revoked under the discretionary grounds in section 26, as stated in paragraph 15 above.

In the call-up letter, the operator was warned of the Traffic Commissioner’s discretion under Section 28 of the Act to order disqualification upon revocation of a licence. The operator has allowed serious failings on his licence and has failed to engage with the investigatory or public inquiry process. I find Alex Macdonald totally unfit to hold a licence and he is disqualified from holding or obtaining an operator’s licence indefinitely.

On loss of good repute as a transport manager, Neil Macdonald is disqualified indefinitely from acting as a transport manager on any operator’s licence under paragraph 17B(2) of Schedule 3 of the Act.

All decisions will come into effect on 14th March 2022. The application for surrender of the licence on the 7th February would suggest that the licence is not operational at the present time and the period of 28 days will allow for service of the decision and a formal closure of all activities on the operator’s licence.

Anthony Seculer,

Deputy Traffic Commissioner,

14th February 2022.