Decision

Decision for Barbara Ann Davies, trading as JLD Travel (PG1048202) and Transport Manager, Robert Owen

Published 16 November 2022

0.1 In the Welsh Traffic Area

1. Written Decision of the Deputy Traffic Commissioner

1.1 Barbara Ann Davies, trading as JLD Travel (PG1048202) and Transport Manager, Robert Owen.

2. Background

The operator holds a Public Service Vehicle Operator’s Licence to operate 5 vehicles from Garn Service Station, New Road, Pontypool, NP4 7QL.

Robert Owen is the specified Transport Manager, albeit he notified the Office of the Traffic Commissioner of his “resignation” in September 2021, after the issue of the call-up letter.

On the 16th March 2021 DVSA Vehicle Examiner Mark Mogford undertook an announced maintenance investigation which was marked as “unsatisfactory”. A response to shortcomings sent in on behalf of the operator was regarded as unsatisfactory and failing to provide sufficient assurance.

A call-up letter was issued to the operator on the 17th August 2021 for a hearing on the 28th September 2021. The day prior to the hearing the operator notified the OTC that she had “covid symptoms”. Mr Ian Davies, her son attended and stated that he was the “responsible person”. He was unable to produce financial evidence and maintenance records in accordance with the formal request in the call-up letter and the hearing was adjourned to 2nd November 2021.

3. The Public Inquiry

At the Public Inquiry, the operator, Barbara Davies, and her son, Ian Davies attended.

Robert Owen, Transport Manager, did not attend.

VE Mugford attended on behalf of DVSA.

The evidence in the DVSA report was uncontested and I heard evidence from the operator and Mr Davies.

4. Evidence

The Maintenance Investigation Report was marked as “unsatisfactory” against 7 of the 12 subject heads. Of those marked “satisfactory”, the first, “legal

entity”, is, in fact, unsatisfactory based on the evidence at the inquiry. The second, PSVAR is “not applicable” and the third, merely cites an absence of Public Inquiry history.

The seriousness of the shortcomings was only mitigated by the production of more recent maintenance records to DVSA which showed a marked improvement.

5. Findings on the Evidence

I find that the operator’s licence is to all intents and purposes being run by Ian Davies and not his mother, the operator. At the adjourned hearing on 28th September, Ian Davies accepted that he was the “responsible person” for the licence and that his mother’s role was limited to administration and liaising with schools.

I note that it was Mr Davies and not the operator who attended the

investigation and Mr Davies replied to the RFE stating that he was “managing the operation” and “I run the finances of the company”. He provided the assurances and it is him alone who is booked to attend Operator Licence awareness training in November.

VE Mogford highlighted these concerns about legal entity in the March 2021 Investigation Visit Report and, in September, Mr Davies stated that he intended to “take over” the licence. I informed him that a new licence application would be required yet this had not been done prior to the hearing.

Mrs Davies was candid about her limited role in the business and stated that ill-health had diminished her past involvement and that she was now “too old” to take control of the licence.

I find a change in legal entity, a material change under section 17(3)(e) of the Act.

Based on the Maintenance Assessment Report, I find clear breaches of:

Section 17(3)(a) of the Act – Statement of intent not fulfilled - vehicles not inspected at specified intervals; unauthorised change in maintenance provider;

• Section 17(3)(b) of the Act – Breach of condition to use specified operating centre. The operator admitted that as a matter of “convenience” drivers regularly parked authorised vehicles at their homes rather than at the operating centre.

• Section 17(3)(aa) of the Act – Breach of undertakings; to keep vehicles fit and serviceable; to operate an effective driver daily defect reporting system.

• Section 17(3)(c) of the Act – prohibitions issued at pre-announced maintenance investigation visit.

The call-up letter provided clear instruction to the operator as to financial standing and needing to show access to an average of £26000 over the last 3 months. The documentation provided, a one month “transaction list” and annotated photocopies of credit cards, patently failed to meet those requirements and to comply with the Senior Traffic Commissioner’s Statutory Document No. 2 – Finance. I therefore formally make adverse findings under section 17(1)(a) and 14ZA(2) of the Act.

The transport manager, Robert Owen, was clearly not providing “continuous and effective management” of the transport activities of the undertaking, as he must do.

He failed to attend the hearing on 28th September and 2nd November, presumably relying on his resignation on receipt of the call-up letter. In doing so, he has provided no explanation for his failings as a transport manager and has failed to demonstrate appropriate professional responsibility.

6. Considerations and Decisions

The poor level of compliance found during the March 2021 Maintenance Assessment Investigation must reflect on the repute of the operator and the transport manager in post at that time.

In considering the repute of the operator and potential action against the licence I weigh in the balance the positives put forward, which, include the involvement of Ian Davies, his commitment to future training and the evidence of improved maintenance records and systems.

The operator was clearly lacking in knowledge about licence requirements, and I do not find her a fit person to hold a licence.

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. Mrs Davies considers herself “too old” to learn and she demonstrated no appetite to manage an operator’s licence effectively or at all.

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”. The licence stands to be revoked under Section 17(1) and (2) of the Act.

Whilst that would normally result in immediate revocation of the licence, I have regard to the potential impact on pre-existing school contracts and to the involvement of Mr Davies in improving compliance systems since the investigation. A transport manager has been appointed to meet compliance requirements. It is unfortunate that the individual put forward was a retired manager who had not seen fit to attend refresher training in the last 10 or more years, but he has now booked to attend 2 days’ training.

In those circumstances I am prepared to delay revocation of this licence until 30th January 2022. This should give sufficient time for a new licence to be granted in the correct sole trader name but that depends on Mr Davies meeting all licence requirements and a further delay in revocation is unlikely.

In terms of those licence requirements, in the particular circumstances of this case, I specify:

• The operating centre must be one where there is written confirmation that spaces are continuously available for all authorised vehicles, and vehicles must normally be kept there overnight;
• The transport manager is qualified by examination, has recent, relevant experience and has attended appropriate training in the last 5 years;

Robert Owen has lost his repute as a transport manager and is disqualified indefinitely under Schedule 3 para. 7 of the Act from acting as a transport manager, until he has at least attended before a Traffic Commissioner and explained his failings on this licence and demonstrated appropriate training, commitment and professional responsibility.

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Anthony Seculer,

Deputy Traffic Commissioner,

8 November 2021