Decision

Decision for Briggs and Partner Ltd and transport manager David Savile Thwaite

Published 7 June 2022

In the matter of the Goods Vehicles (Licensing of Operators) Act 1995 (The Act)

1. DECISION OF THE DEPUTY TRAFFIC COMMISSIONER FOR THE NORTH EAST OF ENGLAND

1.1 OPERATOR: BRIGGS & PARTNER LTD OB0044724

1.2 TRANSPORT MANAGER: DAVID SAVILLE THWAITE

2. Public Inquiry held at Hillcrest House, Leeds on 24 February 2022.

3. Operator and Transport Manager details

Briggs and Partner Ltd (“Briggs”) holds a standard national goods vehicle operator’s licence (OB0044724) with authorisation to operate seven vehicles and two trailers. There are three vehicles currently specified on the licence. The authorised operating centre is at The Storth, Huddersfield Road, Elland. The managing director and transport manager is David Savile Thwaite (“Mr Thwaite”). There are two other directors, his son and daughter Joseph and Victoria Thwaite.

4. DVSA report

In November 2021 a report was compiled by DVSA traffic examiner Beverly Shields. A statement was made by her dated 28 October 2021. The statement set out details of a roadside check on 5 July 2021 when Mr Christopher Rogerson (Mr Rogerson) was driving a 26000kg 3 axle rigid goods vehicle YC13 CXH, one of the vehicles specified on the operator’s licence while it was displaying operator’s licence disc OB0044724 in the name of Briggs. The report sets out the outcome of a follow up investigation. Together the statement and report find that:

• Mr Rogerson was driving the vehicle with no driver card inserted.

• Tachograph data showed that the vehicle had been driven on numerous occasions (25) between 29 October 2020 and 4 July 2021 without the driver card inserted. Mr Rogerson accepted that on most of those occasions he was the driver and Mr Thwaite accepted that he had not carried out necessary checks.

• A check revealed that Mr Rogerson’s card had expired on 12 October 2020 and no temporary card had been issued, resulting in Mr Rogerson being issued with a fixed penalty notice.

• Further checks showed that the vehicle was registered to Mr Rogerson from 26 June 2021 and that the last download was on 12 December 2020 meaning that the download was missed by 115 days. The vehicle was returned to Briggs and sold at auction in October 2021.

• The findings of the Traffic Examiner Visit Report as a result of visiting the operator’s premises on 20 October 2021 were unsatisfactory in a number of respects: demonstration by the transport manager of continuous professional development and management control; the numerous occasions when vehicle YC13 CXH was driven without a valid driver card; frequency of driver licence checks; systems for checking drivers’ hours in terms of frequency of downloading data and monitoring working time records; system for managing vehicle tests, and use of additional maintenance provider not specified on the licence.

• Mr Rogerson was interviewed at the roadside on 5 July 2021 when he said that he did not realise that his card had expired so long ago, and that he accepted driving the vehicle on numerous occasions since it expired.

• Mr Thwaite was interviewed on 20 October 2021 when he said that Mr Rogerson was employed on a “labour only” basis, that he was probably acting on Briggs’ instructions on 5 July 2021 and that he accepted responsibility for the vehicle even though the registered keeper had changed to Mr Rogerson by 5 July 2021 because he had not taken the vehicle off Briggs’ licence. He admitted general failings in carrying out regular downloading of data, and in analysing compliance with drivers’ hours requirements.

5. Public Inquiry

5.1 Call to public Inquiry

The Traffic Commissioner was sufficiently concerned by Ms Shield’s report to call the operator, its transport manager and Mr Rogerson to a conjoined public inquiry. The call-up letter was sent to the operator Briggs on 14 January 2022, citing Sections 26(1) (c) (iii), (ca) (f) and (h), section 13A (2) and (3) and 27(1) (a) and (b) of the 1995 Act as well as Article 4.1(a) of EU Regulation 1071/2009 and the European Withdrawal Act 2018. By letter of the same date Mr Thwaite was also called in his capacity as transport manager to consider his repute and professional competence, citing Schedule 3 of the 1995 Act.

By two letters of the same date Mr Rogerson was called to a conjoined public inquiry firstly, to consider his LGV driving entitlement, citing sections 110-112 of the Road Traffic Act 1988 and, secondly, to consider his operator licence OB1116575, citing Sections 26(1) (c) (iii), (ca) (f) and (h), 26 (6) and 28 of the 1995 Act. As he did not attend the public inquiry, a separate decision will be issued in respect of him.

The inquiry was held in Leeds on 24 February 2022. Present in person was Mr Thwaite. Present by video link was Ms Shields. Mr Christopher Rogerson did not attend, but a person who identified himself as Mr Rogerson’s father attended and asked to speak on behalf of Mr Christopher Rogerson. This request was refused as there had been no communication to authorise this or seek permission for Mr Rogerson senior to represent Mr Christopher Rogerson. However, as the hearing was open to the public, Mr Rogerson senior was allowed to remain as an observer for all but the last part of the hearing which was held in private as it concerned Briggs’ finances. Ms Shields also left the hearing before it went into private session.

Mr Thwaite had provided to Ms Shields tachograph data which she requested via Tachograph Data Ltd which was instructed by Mr Thwaite in response to the request from Ms Shields.

Mr Thwaite provided bundles of records in response to the call-in letters which included:

• Tachograph analysis reports from mid July 2021 – end January 2022.

• Maintenance inspection reports for a similar period.

• Driver defect report forms and rectification forms.

• Maintenance Planning Chart for 2022.

• CPC for Mr Thwaite and Mr David Farrer (proposed new transport manager).

• Driver training records.

• Financial information including recent bank statements and unaudited accounts and profit and loss statements to 31 March 2021.

Ms Shields provided a summary of the findings of her stop check and investigation as set out above. She confirmed that Mr Thwaite had provided her with the documentation that she requested and had cooperated with her investigation and visit. Her analysis was that the failings were due to a combination of complacency, neglect, and some lack of updated knowledge. Mr Thwaite had responded to a major part of her concerns by the appointment of an independent tachograph analyst. She observed that analysis of recent data showed a “vast improvement” in that it showed only a few minor infringements of drivers’ hours’ requirements. At the time of the check, she was not aware from what Mr Rogerson told her that he had purchased the vehicle or that he held an operator’s licence in his own right. She was told this information when she spoke to Mr Thwaite on 3 August 2021. Mr Thwaite had taken responsibility for the journey on 5 July 2021, the vehicle was displaying Briggs’ licence and she had treated the journey as being undertaken on Briggs’ behalf.

Mr Thwaite gave evidence as follows:

• He had carried out the role of transport manager since 1995. He accepted that he had in recent times focussed on the business management and not on his transport manager duties.

• He had systems in place but had not always checked them regularly. He employed three drivers full time. He was assured about their licences because they had previously worked for the operator in other roles and Briggs had sponsored them through obtaining LGV qualifications.

• He had tried to rectify the failings identified by Ms Shields and accepted all her concerns. He had taken the following actions: contracted out tachograph downloading and analysis to an independent provider; agreed to take on a transport manager from 1 March 2022, Mr David Farrer, who he had identified because of his experience with large transport companies; agreed to some of the reforms proposed by Mr Farrer, including roller brake tests every 3 months starting March 2022, and a “complete overhaul” of systems including new forms for recording daily driver defect checks and rectification confirmation. He has not yet agreed detailed terms with Mr Farrer but anticipates that he will work for 6 hours per week.

• Finances-sufficient evidence of financial standing was provided.

6. Findings

All findings are on the balance of probabilities. In the light of the evidence, and on the basis that I found Ms Shields and Mr Thwaite to be credible witnesses, I make the following findings:

• the operator failed to maintain adequate systems for monitoring drivers’ hours compliance for a significant period of time and has thus failed to fulfil its undertaking to ensure the lawful operation of vehicles (Section 26(1)(c)(iii) of the 1995 Act refers);

• the operator’s driver has been issued with a prohibition and fixed penalty notice in July 2021 for driving without a driver’s card inserted; (Section 26(1) (ca) &(c) (iii) refers);

• the operator has failed to fulfil its undertaking to ensure that drivers’ hours and tachograph rules are observed (Section 26(1)(f) refers);

• the operator has taken steps to remedy the failings identified by arranging independent tachograph analysis and proposes further steps to improve compliance by revised systems to be implemented by a new transport manager.

7. Conclusions

7.1 Operator

The operator has by its own admission neglected full compliance with the undertakings it signed up to when applying for the licence but has demonstrated an intention to rectify its failings.

7.2 Transport manager

I found that Mr Thwaite had neglected to pay sufficient attention to his transport manager role over a considerable period of time. On the positive side, I note that there is no previous adverse compliance history and no apparent issues with vehicle maintenance, and that Mr Thwaite was honest in admitting to his failings. I was close to concluding that his good repute was lost, but I have stopped short of that because he has taken prompt action to address the failings identified and indicated a willingness to make further undertakings as set out above which should go further in addressing the failings on a long-term basis.

In reaching the decisions set out above I have applied the guidance in the Senior Traffic Commissioner’s Statutory Document 10. I have concluded that the starting point for regulatory action is low because having considered the positive and negative features, although on the negative side there has been a sustained neglect of monitoring of drivers’ hours compliance, the steps taken to rectify the failings weigh heavily on the positive side.

Jayne Salt

Deputy Traffic Commissioner

9 March 2022