Decision

Decision for ALEXA ROAD RUNNER LTD and DANUT ALEXA – TRANSPORT MANAGER

Published 20 January 2022

0.1 IN THE EASTERN TRAFFIC AREA

0.2 ALEXA ROAD RUNNER LTD – OF2020001

0.3 AND

0.4 DANUT ALEXA – TRANSPORT MANAGER

1. CONFIRMATION OF THE TRAFFIC COMMISSIONER’S DECISION

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2. Background

Alexa Road Runner Ltd holds a Standard International Goods Vehicle Operator’s Licence authorising 6 vehicles and 6 trailers. The company was incorporated on 18 November 2014 and was known as Speed Society Limited up until 26 February 2019. The sole director is Ionel Alexa. The Transport Manager is Danut Alexa.

There is one Operating Centre, at the Red Lion Truck Stop, Weedon Road, Upper Heyford, Northampton NN7 4DE. An agreement dated 16 November 2020 provides for dedicated spaces for 21 vehicles and 21 trailers. There were four declared contractors showing on the licensing record: Volvo Truck & Bus Centre, Truckeast, RH Commercials (apparently being phased out), PGS Commercial Services Ltd (not to be used in future), said to be undertaking Preventative Maintenance Inspections of vehicles and trailers at 8-weekly intervals. Written representations suggest a decision not to rely on RH Commercials following an inspection of KU17 WYW in May 2021. The updated representations refer to a contract with Scania, but there were not enough staff to service the trailers, which are now sent to Volvo.
A variation application was lodged on 1 August 2020, seeking to increase total authority to 21 vehicles and 21 trailers. The DVSA undertook a desk-based assessment and produced a report dated 9 November 2020. It assessed compliance as unsatisfactory. A proposal to refuse the variation application was eventually sent on 26 February 2021. Following a lack of response, the application was formally refused on 24 March 202,1 but the OTC did not communicate this until 9 June 2021.

Danut Alexa was the Transport Manager on OF2026143, held by DSE Trans Ltd (12 vehicles and 12 trailers) until his resignation from 24 November 2020. He also acts on OF2033443, held by Bufalo Georges Ltd (5 vehicles and 5 trailers), where he said to commit 6 hours for 5 vehicles. He currently commits 10 hours per week to Alexa Road Runner. I am told that he spends the first half of the week with this operator and the latter with Bufalo Georges. He has been resident in the UK since 2008 when he commenced work as an agency driver but gained his Certificate of Professional Competence in 2018 through an examination in Romania. Article 8.2 of Regulation (EC) 1071/2009 provides that persons should sit the examination in the Member State in which they have their normal residence or the Member State in which they work. ‘Normal residence’ means the place where a person usually lives, that is for at least 185 days in each calendar year, because of personal ties which show close links between that person and the place where he is living. Danut Alexa appeared to suggest that it was easier for him to take the examination in Romania. He then indicated that he did not become resident in the United Kingdom until 2018, after he took the CPC exam. Up to that date he visited the United Kingdom for a few months each year.

3. Hearing

The Public Inquiry was listed for 9 August 2021, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was present in the form of Ionel Alexa, Director, and Danut Alexa, Transport Manager, accompanied by Miroslava Seginova, and represented by Ms Bastian of CE Transport Law. The hearing went part heard to 22 September 2021, due to time constraints. On that second occasion the attendees were accompanied by Fiona Hobbs.

4. Issues

The public inquiry was called for me to consider whether there were grounds to intervene in respect of this licence and Transport Manager, specifically by reference to the following sections of the Goods Vehicle (Licensing of Operators) Act 1995:

• 26(1)(b) – breached conditions on the licence.

• 26(1)(e) – statements made when applying for the licence were either false or have not been fulfilled.

• 26(1)(f) – undertakings regarding drivers’ hours and tachographs have not been observed.

• 26(1)(h) – material change:

• 27(1)(a) – good repute

• 27(1)(a) – financial standing

• 27(1)(a) – professional competence, by reference to Mr Alexa’s management of the transport operation and good repute - section 27(1)(b)

• 28 – disqualification.

The operator was directed to lodge evidence in support by 26 July 2021 and specifically:

• Evidence of financial standing to the sum of £30,950 over the last 3 months.

• Original maintenance records for vehicles KU17 WYW, AW15 KJJ, FE65 UCZ, YK15 YDT from November 2020 to July 2021.

• Original maintenance records for trailers C301518 and C301474 from November 2020 to July 2021.

• Maintenance contract(s).

• Evidence of forward planning.

• Evidence of systems for managing drivers.

Representations were lodged slightly late. However, the financial evidence was sufficient to meet the prescribed sum.

5. Summary of Evidence

The variation application, referred to above, prompted a DVSA investigation. The outcome of that investigation (pages 48 to 69) can be summarised as follows:

• No evidence of any maintenance contract.

• Poor but limited annual test history.

• No evidence operator is aware of the correct time period of retention of records at 15 months minimum

• Discrepancies in completion of PMI records and confusion as to the correct PMI frequency, for example: YK15 YDT PMI on 3 August 2020 (47 days overdue) and removed from workshop to continue in operation without rectification. YK15 YDT PMI on 15 February 2020 (14 days overdue) but continued in operation. The operator later provided records for 24 June, 3 and 19 August 2020

• No effective VOR system.

• Several instances of driver detectable defects on PMI records with no corresponding DDR having been made available

• No laden metred brake performance tests and no brake testing of trailers.

• PMIs show driver detectable defects but with no equivalent driver report.

• Disciplinary system described in REO1; no evidence supplied

• Driver defect reports showing defects, with no evidence of repair

• No evidence of TM weekly checks or other audit

• No evidence of wheel removal/re-torque procedures

• It was claimed that drivers are given training when recruited, with a single example provided, no other evidence.

The operator responded on 25 November 2020, by reference to providing evidence of a maintenance contract, brake testing, retorque procedure, parking permission for 21 vehicles and addressing maintenance intervals.

The application was eventually refused. The operator was put on notice of the potential impact on its ability to hold this operator’s licence in correspondence dated 23 April 2021 (pages 81 to 82). A response was prepared on behalf of the operator dated 14 May 2021 (pages 83 to 89). Ms Bastian requested this Public Inquiry.

The representations appear to confirm that the operator has failed to maintain an address where it can receive correspondence. It was suggested that Mr Alexa did not receive correspondence from OTC dated 13 January 2021, and Ms Bastian requested a copy of the desk-based assessment of 9 November 2020. I was unclear why it would not have followed up on that DBA.

In evidence I was told that all driver defects are reported to the office where Ionel Alexa (who also drives), Miroslava Seginova (office manager), an assistant and Danut Alexa are based, presumably Mr Pavel. Ionel Alexa and Miroslava Seginova are said to have attended Operator Licence Awareness training on 18 November 2020. I was told that the operator also relies on a What’s App group to report defects and to forward photographs of defects. These are then actioned by one of the individuals in the office. However, the representations appeared to acknowledge weaknesses in the system and proposed a replacement reporting form to include the trailers. It has one trailer, ALX02B, which is used on an ad hoc basis. The PMIs are conducted by PGS Commercials and emailed to the operator, sometimes a day later. I noted the reference to third party traction work.

The operator has now contacted both Slam Transport and Amazon to request copies of trailer maintenance and brake testing. In evidence I was told that Amazon had failed to respond to a request sent a month ago. I suggested that the operator needed to establish a defined contact. The operator described a model where they log on access “Relay” where they can accept or decline work for different length shifts during which the customer directs the drivers. Drivers work away from the base over the week. They might return at different times and are rarely all together at the Operating Centre. I asked whether there was any form of sticker or disc on the trailers recording inspection intervals/cycles or when the next inspection was due, when the last annual test occurred and/or a brake test. The Director’s response in evidence suggested that this was no longer displayed on the Amazon trailers.

A copy of the contract with the then maintenance contractor was previously provided. It admits that brake tests were conducted in an unladen condition. For examples see 19 August 2020 - 15%, 14%, 12%, or 3 August 2020 - 46%, 26%, 25%, 24 June 2020 - 27%, 8 October 2020 –25%, 17%, 8% 23 October 2020 – Vehicle - 27%, 17%, 10%, 11%. In representations it proposed undertaking the minimum rather than the starting point in the Guide to Maintaining Roadworthiness. The contract with Volvo has now ended in favour of a contract with Renault. Any work on Scania vehicles is conducted at Truckeast in Northampton, and RH Commercials and Volvo Wellingborough for the Volvo vehicles. The Renault dealer relies on the R2C system. From the evidence heard, it would appear that full brake print outs are not supplied. The Operator is said to use a wall planner and electronic diary to track inspections and annual tests. I am told that the fleet consists of 2 Scania vehicles: FE65 UCZ, WU65 NPA, and 4 Volvos: YK15 YDT, AW15 KJJ, DX16 LAZB, KU17 WYW.

Written representations referred to a Fleet Retorque register and a VOR system where keys are removed and a “suzie” padlock attached. A written policy was promised.

The written representations appeared to confuse the commitment given by Danut Alexa in the application to appoint him as the Transport Manager. He was attached to an application OF2038164, but that has now been refused. The Transport Manager would therefore be responsible for the current fleet authorisation of 6 vehicles and 5 vehicles at Buffalo George Ltd (OF2033443). I was referred to examples of a Transport Manager Weekly Routine Audit and told that Tachomaster is employed to monitor drivers’ hours and infringements. The operator acknowledged the need to develop the internal assurance process. However, Danut Alexa, left the country on 20 March 2021 to return to Romania due to family illness. He was due to return on 21 May 2021. I am unclear who was meeting the statutory duty during that period. There was no application for a Period of Grace and the operator admitted that there was no notification sent to the OTC.

This left the operator with no training regime and to implement a new written disciplinary policy. I am referred to the implementation of company vehicle usage and driver safety procedure, duty and responsibilities for drivers, company policy and requirements, and HGV driver handbook, over May and June 2021. That was said to have been rolled out to the drivers, but in evidence the Director and Transport Manager very frankly admitted that they are not disciplining drivers due to the driver shortage and fear that they would simply leave. It must be understood that whatever the commercial pressures, safety standards must be retained. The ability to manage an operator’s licence is in jeopardy if that operator fails to ensure compliance from the drivers.

The comments in respect of the DDRS suggest a concerning level of ignorance on the part of the operator. I noted the WhatsApp group (even used for discipline), but there appears to be some doubt as to whether Danut Alexa (the TM) actually manages the process. The representations refer to the assistance of Miroslava Seginova (office manager) and Adrian Pavel (part-time administrator). Ms Seginova attended the OLAT course with Mr Alexa in November 2020. I was, therefore, interested to see the current state of compliance and whether promises had been delivered against.

Danut Alexa was booked to attend a two-day CPC refresher course 27 to 28 July 2021. It is accepted that he has not met the statutory duty but has now attended that training. In representations I was assured that Danut Alexa gained his qualification in Romania on 13 October 2018, whilst resident in the country. I was told that he started to reside in the United Kingdom ‘permanently’ during 2019. This licence commenced in February 2019. The application is dated the month before. There appeared to be an outstanding application to add Ionel Alexa as a second Transport Manager.

I conveyed the following findings from my dip sampling of the records produced: FE65 UCZ

• 12 June 2021 (8 weeks and 2 days before the PI) – inspection with roller brake test: 64%, 26%, 26%, defects recorded on 11 June 2021, with PMI recording lamps and airline connections.

• 15 April 2021 (9 weeks from the previous PMI) - inspection with no brake test recorded.

• 11 February 2021 – inspection with roller brake test: 59%, 36%, 22%, driver report of the same date. PI records cab doors, mirrors, lamps/indicators, wings, tyres, chipped screen.

• 23 December 2020 – inspection with roller brake test: 28%, 17%, 13%.

• 4 December 2020 – inspection with roller brake test: 27%, 17%, 11%. Driver defect report on the same day. PMI records lamps.

YK15 YDT

• 14 June 2021 – inspection with roller brake test: 26%, 17%, 14% with insufficient load on axles 2 and 3. Driver defect report of the same date. PMI records tyres, fuel leak, chip to screen – safety defects repaired but not general repairs.

• 20 April 2021 – inspection with roller brake test: 25%, 22%, 14% with insufficient load on axles 2 and 3. 4 defects to be monitored

• 1 March 2021 – inspection with roller brake test: 24%, 7%, 5%. Driver defect report of the same day. PMI records spray suppression and brake wear showing on the dash. 4 defects to be monitored.

• 14 January 2021 – inspection with a road test. 4 defects to be monitored.

• 24 November 2020 – inspection with roller brake test: 35%, 21%, 14%. 4 defects to be monitored.

The driver defect reports attached to the PMIs sheets suggests that Ms Seginova was the driver, but she confirmed that this was not the case. It became increasingly obvious that few of the WhatsApp photographs and reports were available and that the operator had failed to produce the full records before the first hearing.

The written representations lodged on 27 July 2021 indicated that the operator has a business relationship with Slam and that it receives work via the Amazon Relay Load Board. There are no formal contracts in place with Slam, or the other major customer, DHL. There is a non-disclosure agreement in place. I have seen a copy of what is termed an “FTA sub-contractors declaration” on Slam stationery. It is signed by Ms Seginova but provides little insight into how Slam will assist the operator to comply. Ionel Alexa signed the Deutsche Post DHL Group “Supplier Code of Conduct”, which appears to have limited, if any, relevance to compliance with this operator’s licence beyond a general health and safety statement and the reporting of a major incident.

The application to increase authority was made in response to a potential increase in work from Slam/Amazon. The operator apparently uses a mix of its own trailers and those provided by Slam, Amazon, and DHL. Following purchases at the end of May, it now owns 3 trailers. I have noted: ALX02B (which is back on the road following a brake test on 20 May 2021, but is likely to be sold, C301518 (ALX02C), C301474 (ALX01C), C301518, C301474, with the latter having been the subject of a pre-use service but the brake tests were unladen. They are said to be maintained by PGS Commercial Services Ltd but there is no contract in place. The inspection records supplied suggest reliance on a static brake test. The operator was unable to tell me whether third party trailers are being inspected within the declared intervals on the operator’s licence. The operator’s bundle contains driver defect reports for third-party trailers. The driver defect reports reflect the fact that a vehicle might be pulling up to three different trailers in a day, but as I record above, the records did not include any WhatsApp reports. The transport consultant suggests that representative trade bodies have referred to shortages in maintenance staff to carry out laden brake testing. That offers no explanation for near total failure to manage the trailers belonging to third parties.

As the updated representations dated 15 September 2021 acknowledge, when the hearing went part heard, the operator was given considerable opportunity to address alleged shortcomings. It admits that Danut Alexa has not met the statutory duty as Transport Manager. I was informed that Ms Seginova has sat the Transport Manager exams but has yet to receive the results. In the meantime, I am asked to take assurance from the instructions of Fiona Hobbs, of Hobbs Transport Consulting, who will attend the operator’s premises on a fortnightly basis. transport consultant. It is proposed that Danut Alexa step down and concentrate on driving duties. The involvement of Ms Hobbs and the proposition that Ms Segniova might qualify in the near future, might offer a temporary basis to continue operating.

In respect of the maintenance arrangements, Volvo is maintaining YK15 YDT, AW15 KJJ, DX16 LZB, KU17 WYW. The operator was advised that a roller brake test was not part of its “Blue Contract”, requiring an additional charge, which the operator has agreed. The tests will be in a laden condition. However, Volvo is unable to complete laden brake tests on the operator’s own trailers. The operator no longer uses PGS Commercials as it was unable to conduct roller brake tests. I have noted the following:

• YK15 YDT – 5 August 2021, inspection with roller brake test recording 49%, 34%, 20%, tachograph paper roll missing.

• FE65 UCZ – 6 August 2021, inspection with roller brake test recording 57%, 33%, 20%, although rear airbags found to be perished, marker light bulb out.

• FE65 UCZ – 13 September 2021, inspection with roller brake test recording 27%, 25%, 12%, exhaust tail pipe, insecure 5th wheel, nearside front bumper, sign board lamp. Roller brake test print out on 14 September 2021 shows 54%, 33%, 21%.

• C301474 – 10 September 2021 but signed-off on 20 September 2021, trailer inspection with unladen brake test recording 13% and 8% although brakes not adjusted and air bags perished, offside second marker light. Roller brake test print out on 19 September 2021 shows 34% and 17% at 37% of the GVW.

• C301518 – 13 September 2021 but second signature on 20 September 2021 with unladen brake recording 13% and 8% with rear brake shoes coming apart. Roller brake printout on 19 September 2021 shows 33% and 20% at 36% of the GVW.

I refer then to the third-party trailers. A contract with Slam has been produced. I am told that Amazon and DHL do not provide contracts. As Ms Hobbs comments, the paperwork received from Slam is not very satisfactory, with few brake tests conducted. There is no written confirmation of what their trailer inspection intervals might be. I have seen a sub-contractor’s declaration completed by this operator and an email from an Amazon representative dated 13 September 2021, suggesting that trailers are inspected at 6 weekly intervals with a brake test carried out only every 50 weeks. An email dated 14 September 2021 from a representative of DHL confirms that TIP trailers are inspected at 10 weekly intervals, with all other trailers at 13 weeks. Brake tests are only conduct every other inspection, i.e., between 20 and 26 weeks. In essence, I am provided with email trails chasing the documentation, which should have been before me at the first hearing, and which have formed part of the compliance systems established from the start of these operations. Even Ms Hobbs was unable to offer a solution to the situation, but this has been pursued and I revert to recent communications, below.

I had already heard evidence on the driver defect reporting system. The updated representations confirm that drivers have been using a WhatsApp group which allows photographs to be added and the report is then submitted to either Ionel Alexa or Ms Seginova. They will advise the driver how to proceed. The drivers (6) including Messrs Alexa have now all received training from Ms Hobbs (21 August 2021). They have apparently demonstrated a greater understanding. The RHA App is also relied upon. The training also involved the supply of driver packs prepared by Ms Seginova, and they have signed for a copy of the RHA Drivers’ Handbook, EU rules, digital tachograph driver and company card management policy, policies on handheld devices, vulnerable users, seatbelts, speeding, offences, fitness to drive, vehicle loading, driver responsibilities etc. Those topics formed part of the toolbox training. Ms Hobbs conducted a walk round check with each driver and installed the RHA app on each mobile. She describes this as more effective than the Whattsapp facility and it allows for reports to be printed off and retained for licensing and audit purposes. I queried whether several systems might lead to confusion and that has been addressed in recent submissions, as explained below.

Ms Hobbs has revisited the operator on 1 and 4 September 2021. She is satisfied that the maintenance files are now in a fit state, with no inspection records missing. The ability to operate third party trailers as per the licence requirements, remains in considerable doubt. There can be no doubt from her statement, on which the operator relies, as to where the fault for failures in compliance systems should lie. She describes a lack of understanding of the importance of the statutory duty by Danut Alexa, with a lack of effective control and forcefulness. He is described as too trusting but that has resulted in the facts, summarised above, with very few systems working as they should. Policies were taken from the internet but never really implemented so that there were tachograph infringements occurring, significant over-speeding, no checks on digi-cards, no UK DQCs (now remedied). Ms Hobbs recognises the work undertaken by Ms Seginova, but I am left questioning the abilities of both Alexa brothers. Ionel Alexa will apparently be responsible for retorquing wheel nuts with the newly purchased wrench. The annual test failures may have occurred before the operator acquired the vehicles, but it was left to Ms Hobbs to check the missing mileage and run-off reports from the system. That information has been analysed leading to interviews with the drivers. Ms Hobbs refers to a long period where 3000 km of missing mileage accrued. This has been attributed to a single driver who worked for a week and then abandoned the vehicle. This was not disclosed to me at the first hearing but is indicative of the impression given by Danut Alexa during his evidence. A competent Transport Manager would identify the risks arising from a new driver ensure effective induction and monitor them closely. Ms Hobbs indicates that the operator was facing a churn in drivers, so the risks should have been identified. She has advised the operator of the need to keep a daily record of who is driving, to have an effective system for downloads with licences checked and the driver must sign a declaration. These are basic systems.

The evidence under consideration has since been added through the supply of additional representations and a bundle submitted on behalf of the operator. I have attempted to summarise that additional material and its impact, in terms of the balancing exercise, described below.

6. Determination

I am satisfied on the basis of the evidence that I should make adverse decisions by reference to the following sections of the Act: section 26(1)(b) – breach of conditions on the licence; 26(1)(e) – statements made at the time of application, have not been adhered and specifically relating to management and compliance with the conditions; 26(1)(f) – undertakings regarding drivers hours and tachographs have not been observed; 26(1)(h) – material change, to which I will revert in the following paragraphs. I refer to the variation application lodged on 1 August 2020, which sought to increase total authority to 21 vehicles and 21 trailers. Mr Ionel Alexa, Director, was very frank in his evidence that this level of expansion had proved unsustainable in the current climate of driver shortages and in fact would have been beyond the existing capability of this operator and its named Transport Manager.

Early written representations acknowledged that the identified shortcomings placed the case within the “SERIOUS to MODERATE” category but sought to persuade me that a time limited curtailment would provide sufficient deterrent. It was suggested that I might consider suspensions over three weekends. The representations accepted that there had been ineffective management control and insufficient or no systems and procedures in place to prevent operator licence compliance failing, Ineffective or insufficient driver training with insufficient or ineffective monitoring and disciplinary procedures in place. To mitigate those findings, it was suggested that there had been no operator fault, recklessness, or negligence with no undue risk to road safety or unfair commercial advantage. The representations pointed to a lack of regulatory history and hoped to satisfy me that there had been effective change.

However, those submissions were made on the basis that the operator and current Transport Manager, Danut Alexa, appeared to be on a ‘stronger footing’. It was claimed that their persistence had obtained most of the third-party trailer documentation. That was not my impression. I gave some credit for the actions completed in 5 weeks, but that also went to illustrate the level of ignorance and poor management even up to and after the first hearing. In an obvious understatement, the representations refer to the need for additional systems to be implemented.

The written representations accepted that the course in November has not resulted in the requisite level of compliance management. There was a suggestion that Ionel Alexa and Miroslava Seginova would repeat that experience by 2 September 2021. I found the paper systems, to which the representations referred, to be little more than that. I was expecting them to show that the basic requirements of the operator’s licence could be met. The operator suggests that I might attach weight to a successfully completed audit for FORS Bronze. I regret that this does not offer me much assurance, for precisely the same reason. The undertaking for a compliance audit as per the OTC pro-forma, appeared to acknowledge that fact. It was suggested that Danut Alexa would be assisted through the services of an external transport consultant, but details were not supplied at that time. I refer to my observations on the records supplied and the insufficient loads being applied at roller brake tests.

In later representations, I was told that Danut Alexa will now concentrate on driving and step down as Transport Manager. It is perhaps obvious from the summary of evidence above, but the evidence demonstrated a lack of effective management, which I am entitled to expect from a reputable Transport Manager. I do not say that Danut Alexa set out to circumscribe the licence requirement, they just proved too much for him, particularly in the context of this business model. That assessment has not changed in my consideration of the subsequent material. To be fair to the operator and Danut Alexa, they have not sought to persuade me otherwise. Further written representations acknowledged that there would be implications for Danut Alexa’s repute and that he was likely to lose his Transport Manager Certificate. In making my determination I was reminded of the useful guidance in the Tribunal’s decision of 2014/050 Andrew Harris t./a Harris of Leicester: “Given the importance attached to operators complying with the regulatory regime and given that transport managers must: “effectively and continuously manage the transport activities of an undertaking holding an operator’s licence”, it seems to us that whether or not an individual has the character, personality, ability and leadership qualities to ensure compliant operation as an operator or to effectively and continuously manage the transport activities as a transport manager is a factor which can, properly, be taken into account when assessing good repute.” I could not help but contrast those observations with the management of Danut Alexa and led me to the conclusion that he has lost his repute as Transport Manager under section 27(1)(b). Correspondence confirmed that Danut Alexa had sensibly taken a view as to his other Transport Manager role on Bufalo Georges and had given notice from that position.

The setting of a rehabilitative measure in these circumstances is very difficult. It might be that working with a more experience CPC holder he could learn how to manage more effectively but that is difficult to fully envisage and will depend whether he concentrates on his driving. It is therefore sufficient to note that he can seek to vary the order preventing him from relying on his Certificate of Professional Competence at any time, pursuant to paragraph 17 of Schedule 3. In the event of that application, he would need to satisfy a Traffic Commissioner that he is now fit to exercise the statutory duty.

In terms of the operator, I started with the question posed by the appellate Tribunal in 2009/225 Priority Freight, namely: how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime? The absence of a Transport Manager does not suggest a positive resolution in favour of the operator. The application to add Ionel Alexa as a second Transport Manager did not hold much attraction, given the findings above. Ms Seginova was awaiting the results of the CPC examination, which she took on 10 September 2021. It has now been confirmed that, whilst she passed certain theory elements, she has still to obtain a Certificate of Professional Competence. She is due to re-sit the multiple-choice element of the exam on Friday 10th December 2021. If the licence is to survive, the operator will require a Period of Grace.

As the Upper Tribunal explained in 2013/082 Arnold Transport Ltd, the grant of an operator’s licence does not mean that an operator can then proceed on the basis that the requirements that must be met to obtain a licence can then be forgotten. The legislation requires that a standard licence l be revoked if at any time it appears that the licence-holder is no longer (i) of good repute, (ii) of appropriate financial standing or, (iii) professionally competent. It goes on to remind operators that operator’s licensing is based on trust. There is an overwhelming general public interest in holding operators to their obligations as cutting corners all too easily leads to unsafe operations. There is a stark warning that if an operator’s actions cast doubt on whether they can be trusted to comply with the regulatory regime they are likely to be called to a Public Inquiry at which their fitness to hold an operator’s licence will be called into question. Here, the Tribunal refers to the adage that “actions speak louder than words”. I have considered the attitude of this operator in the face of a call to Public Inquiry. It cannot be said that things had been put right by the first or even the second hearing. There has a been degree of action only after being told what was required. As the Tribunal indicated, prompt and effective action will be given greater weight than untested promises to put matters right in the future.

I have already recorded the involvement of Ms Hobbs. I also noted the lack of regulatory history, although that flows from the short time in operation. The point was made that Mr Alexa is an inexperienced operator, but the point of the licensing system is not to have a go and see if you can meet the basic standard. That approach would risk the safety of all road users. It is accepted that there has been ineffective management control and insufficient or no systems and procedures in place to prevent operator licence compliance failings. In the case of trailers, that appeared to continue with only promises in respect of the rest of the operation. To the point of Ms Hobbs’ attendance, there was ineffective or insufficient driver training with insufficient or ineffective monitoring and disciplinary procedures in place. It is the ability to manage, which is key to the future of this licence.

I received undertakings for Ionel Alexa and Ms Seginova to attend OLAT by 22 October 2022. I was also told that the operator would conduct laden roller brake tests at every inspection. However, I was unclear how it was going to ensure the maintenance of any of the third-party trailers. It was the management of those trailers which lay at the heart of the question regarding future compliance. Noting the efforts to the date of the last hearing, I was persuaded to allow a final 28 days to resolve this issue. The operator should note that this goes well beyond the usual period allowed to operators, but I gave credit to the proactive identification of the IRTE ‘Roadworthiness: Industry Best Practice for third party trailer operators’ which was produced by the North-Western Goods Vehicle Maintenance Liaison Committee in conjunction with the IRET, a professional sector of the Society of Engineers. In drawing this publication to my attention, the operator accepted that efforts to determine the quality of third-party trailer suppliers would necessarily generate additional compliance documentation. The operator’s representative indicated the operator’s intention to use the suggested draft letter at Annex VII of the publication, which is described as a ’Co-operation request letter to trailer owner’.

The operator then submitted a significant quantity of electronic documentation to the Office of the Traffic Commissioner. I deeply regret that duties in other traffic areas and a reduced capacity with the Office of the Traffic Commissioner, including my own time which was required to give this decision proper consideration. In short, I have seen evidence of the considerable steps taken by this operator. It has compiled a spreadsheet of the third-party trailers which it has come into contact as part of its operations, to comply with the obligations on its Operator’s Licence. That flows from the correspondence (as per the IRTE annex), which has been posted to representatives of Amazon, Slam and DHL as the relevant suppliers of 3rd party trailers. The intention was to seek their support in allowing the operator to comply with the Guide to Maintaining Roadworthiness and the identified industry best practice for the operation of third-party trailers.

I am reminded that this is a 24-hour operation on 7 days per week. Its plans to expand have been restricted by the driver shortage. The operator’s drivers complete first use trailer checks using an RHA application, each time they connect to a different trailer. The operator has noted that the better drivers include a check of the annual test and supply a screenshot from the Gov.uk website, otherwise that must be obtained for the operator’s records. In any event it is double checked by the operator.

Under cover of a letter received on 1 November 2021 I have seen examples of the efforts of this operator and SLAM to ensure that the Licence requirements are met. After some extended correspondence it has been recognised that the operator requires access to the trailer information to continue to discharge its operator licence obligations.

I also give credit to DHL, which has now responded to the operator’s request, and I have seen correspondence from a Ms Sullivan confirming that inspection records, including brake test information, will be attached to the driver’s daily paperwork. That has yet to be reflected in the third-party trailer spreadsheet being maintained by the operator but will be used to populate the spreadsheet going forwards. I have treated that as a statement of intent so as to weigh it into the balancing exercise. I have also noted that the trailers appear to be tri-axle semi-trailers with allowance made for them to be tested in an unladen condition. The brakes must lock, with the service brake achieving an overall force of 3000kg or more. On my dip sampling of the available records, that appears to be the case. However, care should be given to the level of imbalances being recorded even over 30% on certain axles. It is concerning that the remaining supplier has failed to respond as positively. I am told that the operator has not pulled any trailers for Amazon since the hearing and only operate Slams supplied trailers when undertaking work on behalf of Amazon. The result is that the operator is limited to day-runs instead of weekly work.

The lack of response from Amazon is truly concerning, particularly following the information dated 13 September 2021 that its trailers receive a brake test every 50 weeks. For the avoidance of doubt, that is wholly unacceptable. I am unclear how this could possibly be argued to be consistent with its general duties under the Health and Safety at Work etc. Act 1974. It will inevitably lead to scrutiny of any licensed operator engaged in activity under contract with that entity. No commercial activity, whatever its size, can expect a regulator to overlook the potential impact on road safety. It would be well advised to accelerate any plan it has to address the alarmingly poor approach to trailer brake testing, which is evident from the documentation in this case, and which placed this licence at risk.

The representations refer to the persistence of the operator in obtaining documentation, which will allow it to meet its licence obligations in future. I am assured that it now understands how to maintain compliance in the operation of third-party trailers. Traffic Commissioners frequently refer to the Upper Tribunal decision 2013/082 Arnold Transport Ltd, when they are forced to take the ultimate sanction against an operator. It repeats the well-established principle that operator licensing is based on trust and, since it is impossible to police every operator and every vehicle at all times, Traffic Commissioners must feel able to trust operators to comply with all relevant parts of the operator’s licensing regime. In addition, other operators must be able to trust their competitors to comply, otherwise they will no longer compete on a level playing field. The Upper Tribunal reflects upon the public interest in ensuring that Heavy Goods Vehicles (in this case vehicles includes trailers) are properly maintained and safely driven; cutting corners all too easily leads to compromising safe operation. In that context Traffic Commissioners are encouraged to look at the attitude of an operator when something goes wrong and to weigh into the balance the steps taken to address an issue.

In this case the operator has been afforded a number of opportunities, but it has also acted to its own commercial detriment, in order to assure me that it will comply in future. It has involved tightening of its approach to the maintenance of its own vehicles and trailers, as well as greater discipline of its drivers. The Public Inquiry has resulted in a wake-up call to the Director so that, when I pose the Priority Freight question, I am satisfied that there is a chance of sustained compliance, going forward. However, the Director should not have permitted the situation to develop in the first place and I must make clear to this operator and others, what will occur if it is allowed to slip again. Representations suggested a starting point of ‘Serious to Moderate’. The range of interventions includes Revocation with consideration of disqualification, suspension for up to 28 days, a significant time limited curtailment that may materially affect the transport operation down to suspension for up to 14 days or removal of the margin. In the circumstances, I will allow a Period of Grace of no longer than 3 months to address the absence of a Transport Manager. If the operator fails to secure approval for a replacement within that period, then the licence will have to be revoked. I can therefore draw back from revocation, but the statement of intent must be complied with, going forward. I take account of the business model but remind myself of the Tribunal decision in 2019/025 John Stuart Strachan t/a Strachan Haulage: “one of the aims of the regime is deterrence, both for the appellant and for operators as a whole, who might be tempted to flout the system”. For the reasons explained at paragraph 36, it is necessary to take deterrent action, which has a material impact. I therefore propose to suspend the operator’s licence for a period of two weeks. I refer to the email from those representing the operator, dated 9 December 2021, indicating that this should apply from 23:45 on the 24 December 2021, with an accompanying direction under section 26(6).

Richard Turfitt

Traffic Commissioner

9/12/21