Decision

Decision for Blastim Ltd and Adrian Sandu

Published 21 June 2023

0.1 IN THE EASTERN TRAFFIC AREA

1. BLASTIM LTD – OF2037797

1.1 AND

2. DRIVER: ADRIAN SANDU

3. CONFIRMATION OF THE TRAFFIC COMMISSIONER’S DECISION

---

4. Background

Blastim Ltd holds a Standard International Goods Vehicle Operator’s Licence authorising 5 vehicles and 5 trailers. The Director is Georgian Oancea. There are no Transport Managers currently listed on this licence. Gary Andrew Horne acted in that capacity from 15 August 2022.

There is one Operating Centre at Unit 1, Grovebury Road, Boss Avenue, Leighton Buzzard LU7 4SD. Preventative Maintenance Inspections are said to be carried out by Ace Fleet Maintenance Ltd and Stark Fleet Ltd at 8-weekly intervals.

The operator previously attempted to nominate Teodor Critian Popa as a Transport Manager, but it was noticed that, whilst resident in the United Kingdom he had obtained a qualification in Romania in 2019, contrary to the provisions of retained Article 8.2 of EC Regulation 107/2009. I therefore remained to be satisfied that he met the requirements of Schedule 3. After putting the operator on notice of the potential consequences, the operator then nominated Mr Horne. Mr Popa indicated that he was minded to take the CPC in this country. Any future application of his will need to refer to the matters below.

5. Hearing

The Public Inquiry was listed for today, 14 June 2023, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was not present (see below). Driver Adrian Sandu attended for a Driver Conduct Hearing.

6. Issues

The public inquiry was called at the request of the operators and following notice that I was considering grounds to intervene in respect of this licence and specifically by reference to the following sections of the Goods Vehicle (Licensing of Operators) Act:

• 26(1)(c)(iii) – prohibition.

• 26(1)(f) – undertakings (vehicle to be kept fit and serviceable, driver defect reporting).

• 26(1)(h) – material change:

• 27(1)(a) – repute and financial standing.

• 28 – Disqualification.

Driver Adrian Sandu was called to a conjoined Driver Conduct Hearing to consider whether he remains fit to hold a vocational driving entitlement

The operator was directed to lodge evidence in support by 31 May 2023, including financial, maintenance and other compliance documentation. On 5 June 2023, my office received an email from, Carolyn Evans of CE Transport Law, on behalf of the operator, which referred to the request for additional time to comply with the Directions and Mr Oancea’s decision to depart on holiday. This apparently afforded him opportunity to review the viability of the business. He had decided to close the business and asked me to determine matters in his absence.

7. Summary of Evidence

PO65EKY was stopped on 2 November 2022, when it was issued with an immediate roadworthiness prohibition for tyre tread worn below the legal limit. The bald tyre was measured to be at 0.20mm thickness. A delayed prohibition was also issued to the trailer (C321405) for one (of ten) wheel nuts being loose. The driver was Adrian Sandu.

Vehicle Examiner, Glen Winn, subsequently conducted a maintenance investigation on 23 November 2022, which identified several shortcomings, summarised in the Case Summary, as follows:

• Inspection/Maintenance Records: records were not properly or fully completed- some were not signed off as roadworthy, inspection records were not checked by the operator. The Forward planner did not comply with the Guide to Maintaining Roadworthiness with only the next inspection recorded. There was no apparent Vehicle Off-Road process and no evidence of safety defect and recall systems in place.

• Driver defect reporting: the Examiner concluded that there were no effective walk round checks due to the number defects which should have been reported and rectified before vehicles were presented for inspection. There was no evidence that the operator had trained or instructed drivers on how to correctly conduct checks. The Examiner was of the opinion that a Transport Manager should have noted repeat defects and acted upon that information. There was no evidence that defects were appropriately assessed and repaired.

• Inspection facilities/maintenance arrangements: maintenance providers were mobile mechanics without full facilities.

• Vehicle emissions: there was no evidence of a maintenance or monitoring system in place.

• Wheel and tyre management: there was no record kept of wheel nut checks, tyre management or wheel security.

• Load security: there was no evidence of training or load security arrangements.

• Prohibition: as above, vehicle was found to have a bald tyre and loose wheel nut. The driver alleged that he had sent a photograph of the tyre to the operator and was told to carry on. The defect book showed no issue with the vehicle, and the operator claimed no knowledge of the problem.

• Management: the Examiner questioned the ability to ensure future compliance.

Mr Popa, who was engaged at that time, and the Director provided responses. Mr Popa accepted the findings but failed to provide any solution or assurances, although he was about to leave. The operator’s response was provided on 8 December 2022. It suggested the following remedial action:

• Inspection/maintenance records: the operator had changed maintenance contractor with workshop and roller brake test lane and was committed to monitoring the maintenance contractor records. A VOR system has been introduced.

• Driver defect reporting: training has been delivered on walk round checks- and that random quality checks were to be undertaken by the new Transport Manager.

• Inspection facilities/ maintenance arrangements: the new contractor had all the facilities suggested in the Guide to Maintaining Roadworthiness.

• Vehicle Emissions: monitoring has been introduced.

• Wheel and Tyre maintenance: a calibrated torque wrench was purchased, and every vehicle equipped with a tyre tread gauge. Training has been provided, and an external tyre specialist has been contracted to visit monthly to check tyres and wheels.

• Load security: training and guidance provided.

• Prohibition: no issues were recorded on the driver defect record. The driver received a disciplinary warning.

• Transport Manager: a new appointment has been made. Mr Horne was said to have over 20-years of experience in the transport industry.

Mr Horne was appointed after the issue of the S marked Prohibition Notice. The operator lost its previous Transport Manager on 5 August 2022 and then nominated Mr Popa but as stated, failed to satisfy me that he was entitled to act so he was never appointed.

Mr Sandu’s evidence was unchallenged. He told me that he had previously driven being paid as a service company but was employed at the time. He confirmed the photograph of a text message which was shown to the Examiner. I was told that the original message had been sent to the Director at 19:17 on 1 November 2022. As the evidence was contrary to Mr Sandu’s interests, I found him credible. He told me that he spoke to the Director and pointed out to him that he had driven the vehicle on 19 October 2022 (a driver defect report confirmed this). It was not Mr Sandu’s normal vehicle but LX15 AOR was not available. The Director apparently tried to contact a mobile mechanic, but he was not available for a few days. The Director told Mr Sandu to take the vehicle out. They collectively felt that the risk was minimised as the trailer was felt to be under-laden and they discussed lifting the axle with the bald tyre. Mr Sandu admitted that he was afraid to lose the money for the run. The operator had failed to provide him with formal training, but he knew that the decision was wrong and that he should have recorded the defect on a driver report. No explanation was given for the trailer defect. He denied having been disciplined by the operator.

8. Determination

Ms Evans informed me that Mr Oancea accepted that in the absence of the requested records his licence must be revoked. He had decided not to continue but to return to Romania with his family from December 2023. Mr Oancea’s father has suffered a recent fall.

Representations confirmed that the operator has been operating 3 vehicles and making a limited profit. However, the work is not consistent, so Mr Oancea felt unable to properly engage the drivers (who are currently self-employed). His drivers apparently declined to be paid in this way. Drivers Kamil Radoslaw and Mincu Ilie-Alexandru were described as self-employed and part-time. Driver Dinca Doru was paid through his own limited company. In 2019/54 Bridgestep Ltd & Tom Bridge, the Upper Tribunal referred to the practice of drivers classify themselves as self-employed. The Tribunal commented that the legitimacy or otherwise of a driver’s self-employment status is fact specific and as the Factsheet produced by the RHA on self-employment contained within the bundle makes clear: “Unless they are an owner-driver, it is very rare for a lorry driver to be legally “self-employed”. There was nothing before the Tribunal to confirm that the arrangement between the company and its drivers was compliant with the HMRC guidelines. The Upper Tribunal referred to a conscious decision to enter into an arrangement with the company’s drivers which was highly questionable if not a sham. The reasons for doing so were anti-competitive being as they were, concerned solely with the cost of employing the drivers and by reducing that cost, gaining a competitive advantage over other compliant operators. The Tribunal went on to describe the vast majority of operators making the right decision to employ their drivers, paying national insurance, pension contributions, holiday, and sickness entitlement. I did not judge this to be a case where the operator had gained an unfair competitive advantage because of the accounting between the two entities. The consequence in Bridgestep was that the Transport Manager felt unable to give any instruction to drivers and was unable to have continuous and effective management of the transport operation.

The representations describe Mr Horne as the ‘Transport Manager’. They describe a break down in the relationship between Mr Oancea and Mr Horne leading up to the hearing. Mr Horne has now resigned and will not attend. I recorded that material change.

Based on the evidence before me, I was satisfied that I should record adverse findings under the following sections: 26(1)(c)(iii) – prohibition, 26(1)(f) – undertakings (vehicle to be kept fit and serviceable, effective written driver defect reporting, complete maintenance records), 26(1)(h) – material change. In the absence of financial standing and a Transport Manager meeting Schedule 3 of the Act, it was inevitable that I would have to revoke the operator’s licence under section 27(1)(a). However, I proceeded to consider 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 any evidence of systems, finance to support establishment, a Transport Manager to ensure continuous and effective management, meant this was highly unlikely. In addition, and the direct involvement of the Director in the events which led to the S marked Prohibition Notice convinced me that I should remove the operator from the industry, with an accompanying finding of a loss of repute.

Reference was made to the 3 vehicles in possession: Renault T range 460 - LX15 AOR, MAN TGX - CN66 YNK, and a Mercedes Actros - SV66 HXH. The first two vehicles are owned by the operator company and can be sold. The third is on finance. It was suggested that there were insufficient funds to clear that debt, confirming a lack of financial standing. I was therefore asked to allow a short period to wind the operations down and to sell this third vehicle, or at least to continue to operate that vehicle alone for a 6-week period. Having put this operator on notice of the issues being faced, it then failed to comply with my Directions. DVSA had identified the matters of non-compliance over 6 months ago. I saw little argument to permit this commercial advantage to persist and revoked the operator’s licence from 23:45 on 12 July 2023. Whilst noting the intention to move to Romania, the conduct identified here was such that I determined the need for appropriate deterrent action during the intervening period and should the Director return to the United Kingdom. It must also be made clear to other operator’s that this conduct cannot be allowed, as per the Upper Tribunal in 2019/025 John Stuart Strachan t/a Strachan Haulage and more recently in 2022/1227 Lineage UK Transport Ltd. I referred to the Senior Traffic Commissioner’s Statutory Document No. 10 and, whilst recording this as a first Public Inquiry, determined that a period of disqualification of 3 years was appropriate for both operator and the Director.

8.1 Driver Sandhu

The relevant legislation is set out in Sections 110-122 of The Road Traffic Act 1988. The legislation draws a clear distinction between Large Goods Vehicle (LGV) licence holders and applicants and Passenger Carrying Vehicle (PCV) licence holders and applicants.

Section 112 of the 1988 Act provides that the Secretary of State shall not grant to an applicant a LGV driver’s licence or a PCV driver’s licence unless he is satisfied, having regard to his conduct, that he is a fit person to hold the licence applied for. It is section 121(1) which defines conduct in relation to an applicant for or the holder of a LGV driver’s licence or the holder of a UK licence for the Community, his conduct as a driver of a motor vehicle.

The photographic evidence of the actual tyre was badly copied, but nevertheless, I was satisfied that the position of the tyre on the vehicle is such that it should have been readily apparent to Mr Sandhu during his walk round check. He admitted this and was very frank in his admissions. That is reflected in the direction, below.

The Administrative Court, on the application of Meredith and Others EWHC 2975 (Admin) 18, explained that, whilst the personal circumstances of the driver are, at the preliminary stage of consideration of fitness, irrelevant to the question whether his conduct as a driver has been such as to make him unfit, save to the extent that those circumstances concern his conduct as a driver. Personal circumstances which go to mitigate the conduct itself (such as illness, or emergency, or momentary lapse of attention, or carelessness) will be relevant, while personal circumstances which would, in the ordinary sentencing exercise by a criminal court go to mitigation of penalty (such as loss of work, or other hardship, or the dependence of others upon the licence-holder) would not. I was told that Driver Sandu now works for Clarke Transport. He told me that his employer was aware that he was at the Conduct Hearing.

I took account of the fact that the Driver had reported the tyre defect. He failed to record this on a defect report because he was afraid of a loss of income. His actions fell below that of a professional driver but took account of the context where the Director was involved and there had been a lack of formal training. He nevertheless knew that his actions were wrong, so deterrent action was required. His vocational entitlement was in effect suspended for a period of two weeks from 23:45 on 14 June 2023.

R Turfitt

Traffic Commissioner

14 June 2023