Decision

Decision for Bobby Josiah Wayne Steel trading as SWM Toilet Hire (OC2049691)

Published 29 August 2023

0.1 In the North Western Traffic Area

1. Confirmation of Oral Decision of the Traffic Commissioner

1.1 Bobby Josiah Wayne Steel trading as SWM Toilet Hire (OC2049691)

2. Background

Bobby Josiah Wayne Steel, a sole trader, trading as SWM Toilet Hire (“the operator”) has held a restricted goods vehicle operator’s licence OC204969 since February 2022 authorising the use of two vehicles There is currently one vehicle in possession.

The operator was previously called to an interview with a Senior Team Leader in my office on 17 January 2023 after a number of roadworthiness and weight prohibitions were issued at an encounter in June 2023 and a subsequent DVSA maintenance investigation visit made unsatisfactory findings. The interview was concluded with Mr Steel agreeing an undertaking to attend an Operator Licensing Awareness Training course by 15 October 2023.

Mr Steel also agreed an undertaking to provide evidence showing that he had continued to meet the required level of available finance for the period 1 January 2023 to 31 March 2023.

The evidence that was submitted to meet this undertaking subsequently did not demonstrate the required sufficiency of available finance. The Operator had therefore failed to fully fulfil the terms of the undertaking. Mr Steel was informed on 10 May 2023 that I proposed to revoke the licence on that basis, and he responded by requesting this public inquiry.

It was subsequently brought to my attention that Mr Steel is a director (with (Britney Louise Pearson) of a company named SWM Toilet Hire Limited. Mr Steel has been a director of that company since its incorporation on 30 January 2023. The incorporation of that company with an identical name to the sole trader business raises the question of whether there has been a change in the entity operating the vehicles.

I was also made aware that Mr Steel has been a director since its incorporation in December 2022 of a second company named SWM Access and Safety Netting Limited (there is a second director named Liam Hayhow). Mr Steel was put on notice that I would asking at the public inquiry how that company met its transport needs.

3. The Call to Public Inquiry

The operator was called up to public inquiry by letter dated 5 June 2023.

The call up letter gave notice that the grounds for regulatory action in Sections 26(1)(c)(iii), 26(1)(ca), 26(1)(e), 26(1)(f), and 26(1)(h) of the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”) were to be considered as well as the provisions for disqualification in Section 28 of the Act.

Additional information was provided to the Operator by letter dated 31 July 2023

4. The Public Inquiry

The Public Inquiry was heard at Golborne today. Mr Steel attended in person.

5. Evidence

In advance of the hearing, I was provided with a bundle of copy documents by the Operator.

[redacted]

Mr Steel also provided brief written submissions in which he commented on the additional matters raised as follows:

• SWM Access and Safety Netting Limited was a separate business and met its transport needs using light goods vehicles.

• SWM Toilet Hire Limited is currently dormant and was established only to secure the name. Mr Steel said he was aware a new licence would be needed if that company starts to operate vehicles.

• Septic tank emptying. Mr Steel said he had not offered this service as yet but argued that the waste water would be legally owned by him once loaded. He holds a waste transfer licence.

Mr Steel provided evidence that he had sat and passed the Transport Manager CPC qualification in April 2023.

The other evidence provided was limited and fell well short of what was requested in the call up letter.

A single PMI sheet dated 28 June 2023 was provided. The provider could not be identified from the record sheet and troublingly the operator’s name was given as “Greens Environmental”.

The only other document supplied was a maintenance contract with Titterington of Carlisle dated as recently as 4 August 2023. This used an out-of-date template as it contained repeated references to VOSA, despite the agency changing its name to DVSA 10 years ago. The previous maintenance provider remains listed on the licence record.

I was not provided with any evidence of driver management,

Mr Steel in evidence today repeated the explanations offered above.

He explained that his previous vehicle had been off the road for several months and is to be disposed. He acquired his present vehicle in June 2023 from Greens Environmental hence the only inspection record he has available is the one they undertook at the point of sale.

Mr Steel said he had no intention of acquiring a second vehicle at present as he wished to make sure he was operating one vehicle compliantly before expanding. He offered the three undertakings recorded above.

6. Decision

I am satisfied that between 1 January 2023 to 31 March 2023, the Operator did not have the required level of available finance (within the meaning of Section 13D of the Act). This also meant he failed to fully fulfil the terms of the undertaking given.

I find that this amounts to a material change on the Operator’s circumstances that meets the grounds for regulatory action in Section 26(1)h) of the Act. operator has failed to fulfil a licence undertaking and the grounds for regulatory action in Section 26(1)(f) are also met.

These matters combined with the unsatisfactory finding of the DVSA investigation in 2022 lead me to a finding that there has been a material change as to the Operator’s fitness, again meeting the grounds for regulatory action in Section 26(1)(h).

Having reached the findings of fact recorded above, I have considered the balancing exercise and have considered the positive and negative features by reference to the guidance in the Senior Traffic Commissioner’s Statutory Document Number 10.

I identify the following negative features.

• The unfair commercial advantage that flowed from operating without the required level of financial resources.

• The ineffective management control and lack of sufficient systems and procedures in place to prevent operator licence compliance failings as identified by the DVSA.

• The prohibitions issued in 2022.

• The previous DVSA investigation and STL interview,

I balance this against the positive features that this was Mr Steel’s first actual appearance before a Traffic Commissioner at public inquiry (despite the other interventions described above). I also give him credit for obtaining a Transport Manager’s CPC qualification of his own initiative when this was over and above the expectation set out in the relevant undertaking.

This is a licence that is less than 2 years old but has already given rise to issues that have involved an unsatisfactory DVSA investigation and a STL interview and now a public inquiry. Although I am reassured to an extent about Mr Steel’s capacity to be compliant in future, I consider the fact that issues have continued to arise after the previous interventions does call for formal regulatory action. Having balanced these factors and considered the evidence heard at the public inquiry, I consider this is a case that falls into the category of “serious” for the purposes of considering regulatory action.

I consider the necessary action is to direct a curtailment of the licence so that only the one vehicle currently in possession can be operated. That curtailment will apply until Mr Steel can satisfy me that he can be trusted to operate additional vehicles compliantly and has the financial resources to adequately maintain them.

Mr Steel is yet to commence offering septic tank emptying services. I drew his attention to the guidance on sewerage services contained at Para 53 of Statutory Document 0. I am satisfied the proposed operation as described by Mr Steel would require a standard licence and I am content to accept the relevant undertaking offered above.

I accept the explanation offered in relation to SWM Toilet Hire Limited. I am satisfied Mr Steel understands that if it is proposed that company starts trading and operating vehicles, it will need to apply in advance for an operator’s licence. I am also satisfied that SWM Access and Safety Netting Limited is a separate business but reminded Mr Steel that it must not make use of the vehicle authorised under his own Operator’s licence whilst that remains of the restricted type.

I reminded Mr Steel that he must update details of his new maintenance provider onto the online licensing system within 28 days. I also suggest that he asks for the provider to agree a revised contract that confirms the required frequency of brake tests and updates the references to the enforcement agency as “DVSA”.

Gerallt Evans

Traffic Commissioner for the North West of England

14 August 2023