Decision

Decision for Budget Cases Ltd

Published 15 October 2024

0.1 IN THE NORTH WEST OF ENGLAND TRAFFIC AREA

1. BUDGET CASES LTD  OC1094648

2. CONFIRMATION OF ORAL DECISION OF THE DEPUTY TRAFFIC COMMISSIONER

2.1 In the matter of the Goods Vehicle (Licensing of Operators) Act 1995

3. Public Inquiry held at Golborne on 20 August 2024

4. Background

Budget Cases Ltd (“the operator”) has held a restricted goods vehicle operator’s licence OC1094648 since 2010 authorising the use of three vehicles with that number currently specified on the licence.

The director of the operator is Andrew Thomas Earley. A second director was recently removed from the licence and Companies House register. I am satisfied that was in the ordinary course of business and not related to this public inquiry.

On 6 July 2023, the operator applied to vary the licence by increasing the number of vehicles authorised to four vehicles.

While the application was being considered, information was received from the DVSA about an encounter with one of the operator’s vehicles on 16 January 2023. That encounter raised concerns about “off card “driving and led to a DVSA This application prompted to the DVSA commencing an investigation of the operator in June 2023.

The operator was asked to supply data to the DVSA. Although it promptly provided driver card data, it was unable to provide vehicle unit data initially. The operator explained it had to acquire a downloader for that purpose and this indicated the issues that would be disclosed once the DVSA was able to complete its analysis of the tachograph data.

The DVSA analysis showed that none of the tachograph units fitted to the operator’s three vehicles had been its analysis had been locked or downloaded for periods of between 30 months and 45 months.

The DVSA also found evidence of “off card driving” by both the operator’s full time employed drivers. On five occasions, it appears the drivers had forgotten to insert their card at the start of their duties and only did do after travelling for some time. On two occasions, driver [REDACTED] had deliberately ejected his card as he neared the end of the 4.5 hours of driving without a required rest. He then continued driving in excess of the permitted period with his card ejected to attempt to conceal the offence. Driver [REDACTED]was subsequently convicted of two offences of knowingly making a false tachograph record.

Director Andrew Earley was interviewed by the DVSA in October 2023. He said the operator had previously undertaken analysis of data recorded on analogue charts, but no such analysis had been done since the acquisition of vehicles equipped with digital tachographs over the past 5 years.

Mr Earley conceded that the operator had not delivered any training to its drivers on driver’s hours and tachographs and that he, as the responsible person, was not previously aware of the requirements. Since the DVSA intervention, the operator had engaged the services of consultants VOCS to undertake a compliance audit and to introduce new systems for managing drivers’ hours. Mr Earley had also attended an operator licence awareness training course (“OLAT”) in September 2023.

Due to the extent of the concerns raised by the DVSA investigation, it was determined that the operator should be called to public inquiry to consider regulatory action in relation to its existing licence and to consider if the operator had demonstrated the statutory requirements necessary for the variation to be granted.

Neither the Operator nor its director had attended a public inquiry previously or otherwise come to the attention of the Traffic Commissioner before.

4.1 The Call to Public Inquiry

1. The operator was called up to public inquiry by letter dated 10 July 2024.

2. The call up letter gave notice that the grounds for regulatory action in Sections 26(1)(c)(i), 26(1)(c)(ii), 26(1)(c)(iii), 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. The variation application was to be considered having regard to the requirements in Section 13C of the Act. The call up letter wrongly referred to the provisions of Section 13A that relate to standard letters. At my direction, clarification was sent before the hearing that the public inquiry would instead consider the provisions of Section 13B and 13D.

5. The Public Inquiry

The Public Inquiry was heard at Golborne today. The operator was represented by director Andrew Earley. The operator and its directors were legally represented by Charles Stansfield of JMW Solicitors. Adrian Stretch of VOCS consultants was also in attendance.

6. Decision

In advance of the hearing, the operator submitted recent evidence of its driver management to the DVSA as directed. I was then provided with an updated report from Traffic Examiner May.  It was confirmed that the operator was now downloading and analysing the tachograph data as required. Three serious infringements were identified involving a failure to take breaks, but evidence was provided of disciplinary processes followed. Mr Stretch also gave evidence today two of those infringements were not revealed by his analysis.

The Traffic Examiner raised concern about the number of vehicle changes recorded on the licence. The operator appears to have four vehicles in possession at present, but these are regularly specified and removed from the licence sometimes at intervals of only a few days. This raised the concern it was a device to mask the operation of more vehicles than permitted by the current licence authority.

I was also provided with a report from Mr Stretch confirming that he was approached by the operator in September 2023 and his company now visits on a monthly basis. He explained the work done with the operator to improve compliance and as evidence drew attention not the reduction in the infringement rate from 35% in October 2023 to 2% in July 2024.

Mr Earley gave evidence today in accordance with his interview with DVSA.   He explained that he was appointed as a director after the licence was granted and until these events had never undergone operator licence training. When the vehicles moved to digital tachographs, he naively assumed that the it was sufficient the data would be recorded and would be available for DVSA if required.

The vehicle movements were explained as the use of a spare vehicle pending the grant of the variation application. I was assured by Mr Earley that only 3 vehicles were operated at any given time. Mr Stretch confirmed he was aware of the operator’s practice, and he had not detected any use of vehicles beyond the authority in the checks he undertook.

Mr Earley confirmed that he had attended an OLAT course, CPC refresher course and was considering studying for the full transport manager CPC qualification. He also confirmed that his son had attended OLAT training and was now engaged as the operator’s compliance manager. The operator’s relationship with VOCS is to continue for the foreseeable future.

Mr Earley said that it would be impossible for the operator to use external haulage contractors and that it required a minimum of 3 vehicles to meet its business needs.

7. Findings of fact

Having considered the evidence contained within the brief, the material provided by the DVSA and the operator before the hearing and the evidence heard from Mr Earley and Mr Stretch today, I make the following findings of fact:

• A driver employed by the operator has incurred a relevant conviction in the past five years. This satisfies the grounds for regulatory action in in Section 26(1)(c)(ii) of the Act.
• The operator has not honoured the undertakings it signed up to when it applied for its licence, namely that it would observe the rules on drivers’ hours and tachographs and keep proper records. This satisfies the grounds for regulatory action in in Section 26(1)(f) of the Act.

I further make a finding that I am satisfied the operator has demonstrated for the purposes of its variation application that the statutory requirements of Sections 13A, 13B and 13D of the Act are met.

8. Determination

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 failure to monitor driver’s hours as required was a reckless act that caused an undue risk to road safety as demonstrated by the actions of driver [REDACTED].
• That failure persisted for a period over 3 years until corrected.
• For that period there were no analysis procedures in place to detect falsification and drivers’ hours infringements.

I balance these with the following positive features:

• There is evidence that effective analysis procedures are now in place to detect falsification and drivers’ hours.
• This is the Operator’s first public inquiry.
• The Operator fully co-operated with enforcement investigation.
• The Operator has engaged the services of transport consultants to assist with compliance going forward.
• The director and another manager have attended formal training and plan more continuing professional development activity.

Whilst I recognise the progress made since the DVSA investigation, I cannot overlook the seriousness of the failure to undertake any tachograph analysis for such a protracted period and resulted in falsification offences being undetected. On balance, I consider that the negative features therefore outweigh the positive features, and I am satisfied that this is a case that falls in the category of “serious” for the purposes of assessing the starting point for regulatory action.

I consider that meaningful action is necessary to ensure the Operator and others are left in no doubt that such an omission is wholly unacceptable. I have taken account of the guidance offered in Thomas Muir (Haulage) Limited (1999) SC  86 that regulatory action has a purpose in “deterring the operator or other persons from failing to carry out their responsibilities under the legislation However, taking such considerations into account would not be for the purpose of punishment per se, but in order to assist in the achievement of the purpose of the legislation”.

I have gone on to consider the Priority Freight question of whether I can trust the operator to be compliant in future. I am confident that this operator under the control of Mr Earley can be so trusted. Accordingly, I do not consider it necessary to consider revocation of the licence today.

Nevertheless, I consider that significant regulatory action is required in the form of a curtailment. This is to underline the expectation of compliance, and the consequences should that not be delivered. The curtailment should serve as a tangible reminder to Mr Earley of the importance to his business of retaining the operator’s licence.

I determine that the appropriate and proportionate curtailment is from three vehicles to two vehicles for a period of 7 days. I defer the start of the curtailment by 3 days to allow the operator to prepare for the reduction in vehicles available for use.

Once the curtailment has passed and Mr Earley has had the opportunity of reflecting further on the matters that led to this public inquiry, I consider the operator can be trusted to be compliant in future with the increased authority. I therefore direct that the grant of the variation can be allowed to take effect from Monday 2 September 2024.

(As discussed during the hearing, I consider the degree of Logico’s involvement in the supporting the licence means it would be inappropriate for them to undertake the future audit and another provider should be identified for that purpose).

Gerallt Evans

Deputy Traffic Commissioner

20 August 2024