Decision

Decision for Arwel Thomas

Published 11 June 2024

0.1 IN THE WELSH TRAFFIC AREA

1. DECISION OF THE TRAFFIC COMMISSIONER FOR WALES

2. PUBLIC INQUIRY HELD AT CAERNARFON ON 19 APRIL 2024

3. Arwel Thomas OG0093768

4. Background

Arwel Thomas holds a Restricted Goods Vehicle Operator’s Licence authorising 1 vehicle and 1 trailer. The licence was, until recently, a standard national licence granted on 12 October 1993, and which originally authorised 2 vehicles and 2 trailers.  The licence was downgraded to a Restricted licence at a Preliminary Hearing before me on 8 March 2024 as the nature of Mr Thomas’ business had changed and he no longer required the vehicle for haulage work but intended to use it only for his own use, namely for farming purposes.  There is compliance history on the licence, with Mr Thomas having appeared at a number of public inquiries over the years.  The call up letter to the most recent inquiry in 2015 refers (at page 102 of the PI Brief) to public inquiries in 2007, 2008, 2010 and 2012, although those are now somewhat historic.  At the most recent public inquiry in 2015, my predecessor, Traffic Commissioner Jones, made adverse findings under sections 26(1)(c)(iii) and (f) of the Act and found that Mr Thomas’ repute as operator was tarnished.  Mr Thomas was also the transport manager on this licence, and Traffic Commissioner Jones found that he had lost his repute as transport manager and disqualified him from acting as transport manager on any licence until he had passed the Transport Manager CPC qualification.  At that inquiry, the operator agreed to an additional undertaking being added to the licence that all vehicles and trailers would be roller brake tested every 12 weeks. 

On 17 July 2023, transport manager Gareth Blythin was removed from the licence and a period of grace was granted to the operator to enable him to rectify the situation by nominating a suitable transport manager on the licence.  That period of grace expired on 28 October 2023 without the situation as to professional competence having been rectified, although Mr Thomas had made a variation application to downgrade his licence to a Restricted licence on 19 September 2023. That application to downgrade the licence was not progressed by OTC staff or referred to me for a decision, as it should have been, in October 2023.  The licence should have been revoked on 28 October 2023, following the expiry of the period of grace.  However, upon being made aware of the situation I directed that, as a matter of fairness to Mr Thomas, recognising the exceptional circumstances caused by staff failing to refer his variation application to me until February 2024, the licence be called to a Preliminary Hearing on 8 March 2024 solely to consider the question of whether the application to downgrade the licence could be granted and the licence allowed to continue as a Restricted licence.  In the letter of 29 February 2024 calling him to that hearing, Mr Thomas was put on notice that, should the licence be allowed to continue, then he would be called to a Public Inquiry to consider alleged failings set out in reports recently received from the Driver and Vehicle Standards Agency (“DVSA”) following unsatisfactory maintenance and traffic investigations conducted in September and October 2023.  

On 16 July 2023, a DVSA roadside stop of Mr Thomas’ vehicle resulted in an “S” marked prohibition being issued to trailer A016102 for an insecure brake actuator, failure imminent.  An immediate prohibition was also issued for an inoperative direction indicator and a delayed prohibition for a fractured brake component/device. Upon checking the MOT status of the trailer, it was found to be out of test, the previous test certificate having expired on 31 January 2019, over 4 years previously. This triggered an investigation by the DVSA in September and October 2023.  The results of DVSA’s Vehicle Examiner (“VE”) report and Traffic Examiner (“TE”) report were unsatisfactory, with many compliance failures found. The examiners’ reports are included in the public inquiry brief. By a call up letter dated 13 March 2024, the operator was called to public inquiry to explore the shortcomings identified in those reports.

5. Hearing

The Public Inquiry was listed for 9.30am on 19 April 20234 in Caernarfon.  On 3 April 2024, Mr Thomas requested an adjournment of the hearing to enable him to attend a friend’s funeral at noon that day at St Asaph crematorium.  In considering his request, I noted that there is considerable public interest in hearings taking place on the date set so hearings should not be adjourned unless there is a good and compelling reason to do so.  In this case, I noted that there were serious concerns identified in the DVSA reports and that I must balance the potential impact on road safety were I to allow an adjournment.  I had regard to the Senior Traffic Commissioner’s Statutory Document no. 9 on Case Management and was not satisfied that the interests of justice and fairness required an adjournment.  However, I noted that the crematorium at St Asaph was around a 45-minute drive from the PI hearing venue in Caernarfon and I indicated that, to enable Mr Thomas to attend the funeral, I was prepared to commence the hearing earlier, at 9am on 19 April, which would allow him to leave by 11am and attend the funeral.  However, Mr Thomas responded the following day to advise that he would be too busy on the farm to attend the hearing earlier than 9.30am and would attend at the originally listed time.  Staff reminded Mr Thomas by email on 4 April 2024 that the deadline for him to submit his updated maintenance and drivers’ documents to the DVSA examiners, and to submit his financial evidence to OTC, was 5 April 2024.  On that date, Mr Thomas requested an extension of the deadline for submitting that evidence to 10 April 2024. I granted that request, and the examiners were also notified of my decision and asked to delay producing their update statements for the inquiry until after that extended deadline.

The public inquiry hearing listed on 19 April 2024 commenced and concluded on that date.  Arwel Thomas appeared, unrepresented.  He produced his financial evidence to my clerk shortly before the hearing commenced and there was a delay in commencing whilst that evidence was assessed.  Finances were satisfactory, I heard oral evidence from Mr Thomas and at the conclusion of the hearing I indicated that I was reserving my decision and would issue a written decision as soon as possible.

6. Evidence

In addition to the papers in the public inquiry bundle I was provided with public inquiry supplementary statements from DVSA VE Gwyn Griffiths and TE Kristopher Lewis dated 15 April 2024 and 12 April 2024 respectively. Those statements had also been served on Mr Thomas in advance of the hearing.  Both examiners’ statements confirmed that they had not received any of the documents that Mr Thomas had been directed to send them in advance of the hearing.

The operator had been advised in the letter calling him to the hearing that the DVSA examiners would not be in attendance and that, if he required them to attend, he must write to my office requesting same by 20 March 2024.  He had not requested the attendance of the DVSA examiners but there were some aspects of their reports that he wanted to clarify.  Specifically, in respect of the TE’s report which had raised some concerns about there being no transport manager in position at the time of his visit in 2023.  I indicated to Mr Thomas that, given the Period of Grace which was in force at the time of the TE’s visit, no adverse findings would be made in that regard and no concerns in that respect were alleged in the Case Summary or letter calling him to public inquiry. Mr Thomas raised the question of his wall planner and stated that he considered that he did have a Wall Planner for the purpose of monitoring due dates for his vehicle tests, calibrations, and insurance.  However, I referred him to the TE’s evidence in that respect (page 49 of the Brief) which was that, whilst the TE acknowledged that there was a wall chart on view at the date of his visit, it did not appear to be used for this reason. Mr Thomas noted that evidence which he had not previously appreciated. There were no other areas of evidence disputed by Mr Thomas, but he sought to explain some of the failures identified and offered mitigation in respect of others.  I do not set out all of the evidence in this decision because it is a matter of record within the bundle and transcript of proceedings. 

7. Issues

The public inquiry was called for me to consider whether there were grounds for me to intervene in respect of the licence held by Arwel Thomas specifically by reference to the following sections of the Act: 26(1)(b), 26(1)(c)(iii), 26(1)(e), 26(1)(f), 26(1)(h), 26(6) and 28.

8. Findings of fact

The operator accepted that he had failed to notify my office that he had ceased to use the notified maintenance provider to carry out his safety inspections and was instead carrying them out some of them himself and some were being carried out by another. He could not explain why he did not do so but accepted that he should have and had “taken his eye off the ball”.  I find that section 26(1)(b) of the Act is made out. 

It is undisputed that the operator has been issued with prohibition notices by the DVSA within the past 5 years.   Accordingly, I find that section 26(1)(c)(iii) of the Act is made out.

The evidence is clear that the operator failed to comply with the undertakings on the licence that his vehicles and trailers would be kept fit and serviceable as evidenced by the prohibition notices issued and poor initial MOT fail rate. 

The operator failed to comply with the undertaking that he would observe the rules on drivers’ hours and tachographs and keep proper records. Prior to the TE’s visit in September 2023 no downloading of driver cards or vehicle unit was taking place and there were therefore no infringement reports or missing mileage reports.  Mr Thomas gave assurances that he had put in place systems to manage the data and keep proper records going forward, however, as at the date of the inquiry there was no evidence produced to demonstrate that he had done so.

The operator failed to comply with the undertaking that drivers would promptly report defects that could prevent the safe operation of vehicles and/or trailers and that defects would be promptly recorded in writing. At the time of the VE’s visit last year driver walk around checks were not being recorded and remedial action was not being documented.  In his response to the VE’s report, Mr Thomas stated that he had started to use a book to record check and defect rectification, however he did not provide evidence of his driver defect reports to VE Griffiths for him to examine and comment on in advance of the hearing, as requested.  There was no tangible evidence before me as at the date of the hearing of an effective system for walkaround checks, or that there was a suitable system for reporting defects.

The operator had agreed to a specific undertaking at public inquiry in 2015 that all vehicles and trailers authorised under the licence would be roller brake tested every 12 weeks.  When asked why he had failed to comply with this undertaking Mr Thomas stated that he thought it was for a special types trailer that he had previously owned.  I referred him to the decision letter following that inquiry, included at page 98 of the PI Brief, which clearly set out the terms of that undertaking which was that a rolling brake test was required for all vehicles and trailers.  Mr Thomas’ evidence, despite the clarity of that decision and the wording on the licence itself, was that he had misunderstood the terms of the undertaking.  It is clear that he failed to comply with that undertaking and was still, on his own evidence, failing to comply with that undertaking as at the date of the hearing.  When asked about his brake testing arrangements since the VE’s visit, Mr Thomas confirmed that he checked brakes by dragging the trailer and checking that all brakes locked and that the vehicle was brake tested at the test station as well but this could not be demonstrated by evidence at the hearing and, of course, he had not provided any maintenance documents to the VE as requested.  Accordingly, I find that section 26(1)(f) of the Act is made out.

On the evidence before me, and applying the civil standard of proof, I find that there has been a material change and that the operator is no longer of the required fitness to hold the licence.  I make that finding on the evidence as to the operator’s ability to meet the requirements and undertakings on its licence and the lack of any evidence as to the operator’s compliance as at the date of the inquiry despite assurances given to the DVSA about changes he would make. There was clear evidence that the trailer which was the subject of the roadside stop and prohibition notices was out of test and that had been the case for over 4 years at the time of that stop and there was clear evidence that the operator had not adhered to the undertaking given at public inquiry to a traffic commissioner to carry out roller brake tests on all vehicles and trailers. That undertaking was clear, and I do not accept that Mr Thomas had misunderstood its terms.  Adverse findings were made at that inquiry under sections 26(1)(c)(iii) and 26(1)(f), and I find that those failures have persisted with an inadequate response from Mr Thomas.  Accordingly, I make an adverse finding under section 26(1)(h) of the Act.

9. Considerations and Decisions

In conducting the balancing exercise to determine appropriate regulatory action I have considered both the negative and the positive features of this case. On the negative side, there was ineffective management control and insufficient systems and procedures in place to prevent operator licence compliance failings and there was no evidence of changes made to ensure future compliance; there were road safety critical defects on a trailer in service, including an “S marked prohibition and a low average first time pass rate at MOT. There have been previous unsatisfactory maintenance investigations and public inquiries (although I have discounted those inquiries prior to 2015 in conducting my balancing exercise given that they are now somewhat historic).  However, at the previous public inquiry in 2015 when Mr Thomas lost his good repute as transport manager and was disqualified from acting in that capacity, he gave an undertaking that he has failed to adhere to that vehicles and trailers would be roller brake tested every 12 weeks. Not only did he fail to adhere to that specific undertaking, but the VE’s report shows that 100% of the operator’s safety inspections were conducted without a brake test.  I also noted that the “S” marked prohibition issued to the trailer last year included prohibitions for brake defects. His failure to do so gave rise to a very clear and tangible road safety risk.   On the positive side, the operator co-operated with the enforcement investigation and, although he did not provide the requested documentation in advance of the hearing, he did attend the hearing and openly answered all my questions in giving his evidence. Balancing the negative features with the limited positives I place this case in the “severe to serious” category, having regard to the Senior Traffic Commissioner’s Statutory Document no. 10.

I’ve considered the oral evidence of Mr Thomas given at the hearing about what he intends to do in the future as to brake testing and getting assistance from a qualified transport manager to help him with his paperwork and compliance.  He had given assurances to the DVSA that he would be engaging support imminently, in December 2023.  However, when questioned about that during the hearing, he admitted that Ms Jones had not in fact been engaged by him because she was too busy.  When asked why he had not put in place alternative arrangements, his evidence was that he had decided to get the PI out of the way first and other matters had got on top of him. He realised that he needed help and did intend to engage someone to assist him if he is allowed to keep the licence.  However, Mr Thomas was given an opportunity to “get things right” after the DVSA visits last year and has failed to do so.

The Upper Tribunal has commented in 2009/225 Priority Freight Ltd & Paul Williams that “Promises are easily made, what matters is whether these promises will be kept: actions speak louder than words.”  I also remind myself of the guidance from the Appellate Tribunal in NT/2013/082 Arnold Transport & Sons Ltd “It is important that operators understand that if their 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…. The attitude of an operator when something goes wrong can be very instructive.  Some recognise the problem at once and take immediate and effective steps to put matters right.  Others recognise the problem when it is set out in a call up letter and begin to put matters right in the period before the Public Inquiry takes place.  A third group leave it even later and come to the Public Inquiry with promises of action in the future.  A fourth group bury their heads in the sand and wait to be told what to do during the Public Inquiry.  It will be for the Head of the TRU to assess the position on the facts of each individual case.  However it seems clear that prompt and effective action is likely to be given greater weight than untested promises to put matters right in the future.”  By failing to provide any maintenance or drivers’ hours/tachograph documents in advance of the hearing, the operator passed by the opportunity of demonstrating how he is complying with his licence obligations now. I therefore found that his continued operation of his vehicle was likely to pose a significant risk to road safety.

In considering the Priority Freight 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 had found proved which were serious.  There is an accepted lack of competence which could easily have been remedied long before the inquiry hearing, and which was relevant to my adverse finding under s26(1)(h) and my conclusion regarding the operator’s ability (fitness) to manage a licence.

I have carefully considered the impact of regulatory action on the operator’s business.  Mr Thomas told me that he uses the vehicle and trailer for moving and delivering plant to various people.  If I were to revoke his licence, he would have to go down the route of moving plant with tractors, which he told me is what the majority of people do, though he prefers not to because he doesn’t consider it as safe.  He accepted that is what he could do, if he did not have an operator’s licence.  He also uses the vehicle for collecting feed for his animals.  If he did not have the vehicle, he would have to pay suppliers to deliver his animal feed, silage and concentrates, though he had not explored how much that would cost.  He had not employed anyone to drive the lorry for the last 5 years.  If he were to be disqualified, he would be disappointed because he felt that he had put a lot of hard work into haulage over the years and he still intended to re-sit his transport manager CPC one day, but he accepted that he had not handled the whole issue very well. Weighing all these considerations in the balance, I consider that revocation of this operator’s licence is a proportionate regulatory response and I direct that the licence is revoked under section 26(1) of the Act with effect from 23:45 hours on 19 May 2024 to allow for an orderly parking up of the HGV.

I have given serious consideration to whether the operator should be disqualified from operating in the future under section 28 of the Act, again having regard to the Senior Traffic Commissioner’s Statutory Document no. 10.  I have reminded myself of the authority in T/2010/29 David Finch Haulage.  In that case, the Transport Tribunal said: “The imposition of a period of disqualification following revocation is not a step to be taken routinely, but nor is it a step to be shirked if the circumstances render disqualification necessary in pursuit of the objectives of the operator licensing system.  Although no additional feature is required over and above the grounds leading up to revocation, an operator is entitled to know why the circumstances of the case are such as to make a period of disqualification necessary…”.

The Senior Traffic Commissioner’s guidance states that serious cases may merit disqualification of between five to ten years.  For a first public inquiry, the starting point is suggested is between one and three years.  This operator has an adverse history in operator licensing – I have discounted the older public inquiries as historic, but he has been called to more than one within the past 9 years.

This is a serious case involving breaches of trust which go to the heart of the licensing regime.  Road safety has been compromised and the operator has gained a commercial advantage over other operators by virtue of his actions, particularly his failure to arrange roller brake tests.  Mr Thomas’ attitude towards compliance, in particular his failure to adhering to the undertaking given at a previous public inquiry and his failure to address the shortcomings found by the DVSA last year indicate that disqualification is proportionate in this case.

In the circumstances and having regard to all the evidence I have decided that it is proportionate to disqualify Mr Thomas from holding an operator’s licence for a period of one year.  Such a period, being at the lower end of the scale, reflects the serious nature of the findings I have made, but also reflects the positives that I was able to find. For the same reasons, I consider that section 28(4) of the Act should apply in this case, and I direct accordingly.

Should Mr Thomas wish to apply for an operator’s licence in the future, he will have to demonstrate that he is fit to be trusted once again.

Victoria Davies

Traffic Commissioner for Wales

1 May 2024