Decision

Decision for Brian Dale t/a Armstrong Removals (OD1002112) and Transport Manager, Brian Dale

Published 2 March 2023

0.1 In the West Midlands Traffic Area

1. Written Decision of the Deputy Traffic Commissioner

1.1 Brian Dale t/a Armstrong Removals (OD1002112) and Transport Manager, Brian Dale

2. Background

Brian Dale, trading as Armstrong Removals, holds a Standard operator’s licence authorising 3 vehicles to operate from Truck Shop, Wharfdale Road, Acocks Green, Birmingham, B11 2DA.

Brian Dale is the designated Transport Manager.

Following the issue of an “S” marked prohibition at Annual Test for braking failures, DVSA commenced an investigation into maintenance arrangements and compliance for the operator. A letter requesting documentation was sent on 30th March 2022.

On 31st March 2022 an application for a new operator’s licence was made by Kevin Greening, trading as Greening Removal and Storage, (OD2055049).

On 4th April 2022, DVSA Vehicle Examiner, Paul Matthews, completed a Maintenance Investigation Visit Report in respect of Brian Dale’s licence. The report was marked as “unsatisfactory” across a number of significant headings and the case was referred for consideration of regulatory action at Public Inquiry, and, for consideration of Brian Dale’s good repute as a Transport Manager.

The application by Kevin Greening was considered at the same inquiry.

3. The Public Inquiry

At the hearing, Brian Dale appeared, unrepresented.

Kevin Greening appeared, represented by Mr Anton Balkitis, Solicitor.

DVSA Vehicle Examiner, Paul Matthews, attended.

I heard evidence from all the above parties.

4. Evidence

When DVSA VE Matthews commenced the investigation there was only vehicle on the licence, WX04 XXR., This vehicle was liveried up as “Greening Removal and Storage”, with an address in Northfield, Birmingham and a telephone number for Greening Removals. The only reference to Armstrong Removals, (Brian Dale’s trading name) was a small area of signwriting at the bottom of the passenger door.

The vehicle was registered to Kevin Greening and insured by him. Brian Dale paid no salary to Kevin Greening.

Invoices and maintenance documents were in the name of Kevin Greening/Greening Removals.

A Maintenance Investigation Visit Report was completed on 4th April 2022. The investigation found that the operating centre specified on Brian Dale’s licence had been demolished several years ago and that the operating centre being used, Simple Storage, was the one nominated by Kevin Greening on his application.

The investigation was marked “unsatisfactory” in a number of important respects. Brake performance was not noted on preventative maintenance inspection sheets and driver defect reporting was ineffective. Driver defect reports showed nil defects, but PMI sheets revealed defects that should have been identified by the driver(s).

The MOT failure rate and the issue of an “S” marked prohibition for fractured brake actuators showed unsatisfactory maintenance arrangements. An undertaking on the licence to have effective pre-MOT inspections had clearly not been fully complied with.

When Brian Dale was asked for trading accounts in respect of his own licence, he sent bank statements in the name of Greenings Removal and Storage.

Brian Dale did not dispute the evidence contained in the DVSA statement and summarised above.

He admitted lending his operator’s licence to Kevin Greening for Greening’s business purposes.

Brian Dale sold the vehicle to Kevin Greening in April 2020 and from that date the vehicle was effectively operated by Greening Removals. Brian Dale stated that he asked for £50 per week for remaining as the “operating manager”.

However, Brian Dale also stated that he was disabled by a severe stroke during 2020-21. He had made a good recovery as at the date of the inquiry but I doubt his ability to carry out transport manager functions for a considerable period of time.

Brian Dale produced an email he had sent to Kevin Greening on the 18th July 2022 recounting a conversation between the two of them shortly after the sale of the lorry to Kevin Greening in April 2020. That conversation clearly recognised the need for Kevin Greening to have his own operator’s licence but stated that because of perceived delays arising from the Covid 19 situation, Kevin Greening would use Brian Dale’s licence.

Brian Dale states, “I am just going to put my hands up to it”, and, “we are all to blame”, but denies knowing it was “an offence”. In evidence, he clearly conceded that he knew it was wrong and contrary to the terms of his operator’s licence.

Kevin Greening denied that this conversation had taken place and that he knew what he was doing was wrong.

5. Findings on the Evidence

I find that Brian Dale lent his operator’s licence to Kevin Greening in the clear knowledge that this was unacceptable, and most probably, illegal. Brian Dale has considerable experience as an operator and is qualified as a transport manager. It is the most basic knowledge, which Brian Dale accepted in his evidence, that lending of operator’s licences is unlawful.

I find that Kevin Greening was using the operator’s licence belonging to Brian Dale in clear breach of the undertakings and conditions on the grant of that licence.

I find that Kevin Greening knew that he needed his own operator’s licence. I do not accept that Brian Dale told him that, provided there was some reference to Armstrong Removals, (the signwriting on the door), the loan of the disc was lawful.

I found Brian Dale to be far more credible in his evidence that Kevin Greening. I have no doubt that the conversation in April 2020 recounted by Brian Dale did take place.

Whilst Brian Dale is careful to say in his email that he “didn’t know it was an offence” it is clear from his language (“put my hands up”) and his evidence at the inquiry, that he knew what they were doing was wrong and contrary to the terms of his operator’s licence. I have no doubt that the conversation recounted by Brian Dale in his email of 18th July did take place and that both Brian Dale and Kevin Greening knew that Greening required his own operator’s licence.

I also find that Brian Dale failed to make full and accurate disclosure of relevant matters when completing the application form to be a transport manager on Kevin Greening’s licence. He falsely stated that he had had no association with a revoked, suspended or curtailed licence when, in fact, a licence he held in the name of Butler and Daughter had been revoked in July 2004.

6. Considerations and Decision

There were significant failings in the maintenance arrangements regarding the vehicle and licence operated by Kevin Greening and Brian Dale was clearly unable, from both his medical condition and other weaknesses, to carry out his transport manager function fully and effectively between April 2020 and March 2022. Nevertheless, he allowed the arrangement to persist and continued to receive payments from Kevin Greening up until March 2022. Having regard to the lack of evidence of transport manager involvement I find that the payments to Brian Dale were far more likely to have been for the loan of the licence and the appearance of legality from having a qualified transport manager specified.

I firstly 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 weigh in the balance the positive features as at the date of the Inquiry.

Whilst I give credit to Brian Dale for “putting his hands up” at the public inquiry and being open about his loan of the licence, this is insufficient to justify retention of his good repute as an operator and as a transport manager in the context of the serious failings found above. I consider it highly unlikely that Brian Dale will, in future, operate in compliance with the operator’s licensing regime.

In answer 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”. Lending operator’s licence discs obscures legal responsibility for the operation of large goods vehicles and creates an unfair commercial environment. I consider that revocation of the licence and disqualification of Brian Dale from holding or obtaining an operator’s licence is appropriate in all the circumstances of this case.

I determine that Brian Dale has lost his good repute as a transport manager and he is disqualified from acting as a transport manager for any road transport undertaking indefinitely with effect from 30th September 2022– Sched.3 para.1 & 16(2).

As a rehabilitation measure, Brian Dale would need to re-take his Certificate of Professional Competence as a Transport Manager before acting as a transport manager again.

The operator’s licence held by Brian Dale is revoked with effect from 30th September 2022 under section 27(1) on a finding of loss of good repute and loss of professional competence.

The licence is also revoked under section 26 in respect of the following matters:

i. Use of an unauthorised operating centre (sec. 26(1)(a)),

ii. Prohibition notices having been issued against vehicles (sec. 26(1)(c)(iii),

iii. False statement of expectation re. operating centre (sec. 26(1)(e),

iv. Undertakings not complied with in respect of keeping vehicles fit and serviceable, keeping full and accurate maintenance records, breaching previous undertaking and operating an effective driver defect reporting system (sec. 26(1)(h)).

Anthony Seculer

Deputy Traffic Commissioner

22nd August 2022