Decision

Decision for CONNECT HAULAGE LTD – OF2031601

Published 15 September 2021

0.1 IN THE EASTERN TRAFFIC AREA

0.2 CONNECT HAULAGE LTD – OF2031601

AND

0.3 ANTHONY DEWEY – FORMER TRANSPORT MANAGER

1. CONFIRMATION OF THE TRAFFIC COMMISSIONER’S DECISION

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2. Background

Connect Haulage Ltd holds a Standard National Goods Vehicle Operator’s Licence authorising 20 vehicles and 20 trailers. The Director is Harbinder Singh. Anthony Dewey was listed as the Transport Manager from 7 May 2020 to 20 January 2021.

There are three Operating Centres: Plot 3A Land at Club Way, Hampton, Peterborough PE7 8JA; Kings Cliffe Industrial Estate, Kings Cliffe Road, Wansford, Peterborough PE8 6PB; Unit 3030 North Gate, Alconbury Weald, Huntingdon PE28 4WX. There is one declared contractor showing on the licensing record: Truck East, undertaking Preventative Maintenance Inspections of vehicles and trailers at 6-weekly intervals. The operator’s bundle also contains a contract with LP Tyres Ltd.

The operator has lodged applications to appoint Jagjit Singh as the nominated holder of a Certificate of Professional Competence and to increase authority to 48 vehicles. Anthony Dewey was removed on 20 January 2021 via the self-service portal, with an online application to add Mr Jagjit Singh as Transport Manager and Director lodged on 21 January 2021. He was removed as a director on 20 April 2021. A Period of Grace was granted on 22 April 2021 until 31 July 2021. Immediately prior to the hearing I was provided with a copy of an email from Jagjit Singh informing the licensing caseworker that he was no longer retained by this operator.

The operator was incorporated on 21 February 2020 with Harbinder Singh listed as the sole director. This licence was granted from 7 May 2020 and subject to additional conditions and undertakings. The Transport Manager attended refresher training on 30 and 31 July 2020. ## Hearing

The Public Inquiry was listed for 15 July 2021, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was present in the form of Harbinder Singh, Director, represented by Mark Davies of Counsel and instructed by Smith Bowyer Clarke. They were accompanied by John Cowdell, a consultant from AS Miles Consulting Ltd, who is described as the ‘proposed Transport Manager’. Mr Dewey failed to appear.

3. Issues

The public inquiry was called for me to consider whether there were grounds to intervene in respect of this licence and specifically by reference to the following sections of the Goods Vehicle (Licensing of Operators) Act 1995:

• 26(1)(e) – statement of intent to comply with the conditions on the licence – 26(1)(b)

• 26(1)(f) – undertakings (that vehicles and trailers would be kept fit and serviceable, to employ an effective written driver defect reporting system, finance undertaking)

• 26(1)(h) – material change in the circumstances of the holder

• 27(1)(a) – repute, financial standing, and professional competence

• 28 – Disqualification

Mr Dewey was called to consider his performance when acting as the Transport Manager and whether I should make an adverse decision in respect of his repute, under section 27(1)(b).

It also provided opportunity for the operator to satisfy me that the statutory criteria are met in order to grant its application and specifically by reference to the following sections:

• 13A(2)(b) – repute

• 13A(2)(c) – financial standing

• 13A(2)(d) – professional competence

• 13C(4) – satisfactory facilities and arrangements for maintaining the vehicles in a fit and serviceable condition, not prejudiced by insufficient financial resources, 13D

The application was later withdrawn.

4. Summary of Evidence

Parties were directed to lodge evidence in support by 1 July 2021. In respect of the operator this was to include financial evidence and maintenance documentation. The operator failed to comply with that direction. It was chased in an email dated 6 July 2021, prompting a response, apparently from the Director, suggesting that Jagjit Singh would be sending the required documentation. However, copy financial evidence was only received by email on 10 July 2021. The operator was directed to lodge evidence in support by 1 July 2021. Reference is made to a ‘Facility Agreement’ provided by Reward Capital Ltd. I have been provided with a ‘variation letter’ which is undated beyond 2020 and remains to be signed by the finance provider. The financial evidence submitted was found to be sufficient to support the current authorisation but insufficient for the application. Mr Clarke has indicated that the application should now be treated as withdrawn.

Folders including induction forms, licence checks and toolbox talk records for 22 drivers, maintenance records for 11 vehicles, maintenance contracts, policy & systems for transport management/safe systems of work, toolbox talks, vehicle checks, collision policies and insurance documentation, original financial evidence, maintenance planner etc, were delivered on 12 July 2021, without explanation. The late service meant that I did not have opportunity to go through all 258 pages of policies and procedures. It was readily acknowledged on behalf of the operator that there was little point in quizzing Mr Singh on the content of his company’s policies. He was and continues to be unaware of the details of this transport operation.

I was confused by the Insurance documentation which refers to “Dart Transportation Ltd &/or Connect Haulage Ltd”. I understand that the other entity’s licence was surrendered in March 2020, so I am unclear why this insurance document is dated 7 May 2021. Mr Singh suggested that this was because it was more cost effective to insure vehicles together. He acknowledged his links to the other entity but was unable to provide a satisfactory explanation as to why it would be involved in insuring vehicles over a year after the revocation of its licence. On 27 July 2021, the OTC received a certificate of motor insurance in the name of the operator effective from 7 May 2021 for 1 year. This would appear to be a reissue of the certificate I observed at the Public Inquiry.

On the morning of the Public Inquiry further maintenance documentation arrived at the OTC under cover of a letter dated 13 July 2021. Again, no explanation was offered as to the late provision of those documents – KY19 GKL inspections for 20 January, 5 March, 14 April, 29 May 2021; KX17 PXV for 4 March, 11 May 2021; FN68 LGX 4 January, 12 February, 26 March, 30 April, 25 June 2021; KW16 KUN for 8 February, 8 April, 17 June 2021. My impression of the maintenance documentation is reflected in my detailed comments below.

The licence was originally granted, based on a closing balance and an undertaking for a finance review of financial statements for August, September, and October 2020. The operator then lodged statements for a 3-month period between 16 May 2020 and 14 August 2020, in support of its variation application. The average sum was not sufficient to support the application or the existing authority.

Grant had been made on the basis of a loan deposit from Reward Capital on 1 May 2020, but this was apparently paid back to Reward Capital 14 days after grant of the licence, on 21 May 2020. The operator failed to notify OTC of that change. A loan deposit was paid into the account on 20 July 2020, with several other deposits from Staff Right (ref loan) throughout the three months. The operator also provided a letter from the bank dated the 29/01/2021 stating that there is a £70,000 overdraft facility on the account. However, the letter failed to provide details of when the facility was provided and could not be taken into account. They subsequently provided bank statements covering the period given in the undertaking. I noted that there were a further 3 deposits from the original loan provider on 4 and 8 September 2020, 20 October 2020, and further deposits from Staff Right went on 20 August 2020, 1 and 2 September 2020, 6 and 12 October 2020.

The bank statements suggested that agency drivers were being employed through Staff Right Ltd. Staff Right Ltd is a separate company, but Harbinder Singh is the person of significant control. Mr Singh would have me believe that this was because drivers worked for others. The records show as regular cadre and his own audit referred to 46 drivers. He confirmed that many of them work different shifts. I was concerned by the lack of control exercised over the drivers and compared that with the weaknesses in the driver defect and other management systems. The written submissions prepared by Counsel indicates that Staff Right is no longer trading, and that the Operator does not engage agency drivers through it anymore. However, the double shifts continue. The reference to alternative work for 18 vehicles remains untested and appears entirely reliant on a potential contract, which has yet to be awarded.

The operator also provided an undertaking to supply a compliance audit by no later than 30 November 2020. The audit was suggested due to Harbinder Singh’s involvement with Bison Transport Ltd (OF1135027). A copy of a report was not received until an email of 14 December 2020. The document purported to report on a Drivers’ Hours Audit and a Maintenance Arrangements Audit (page 53). Both were completed remotely by Transport Auditing and Compliance Services on 26 November 2020. The auditor apparently assessed Drivers’ Hours compliance as ‘Green’ although it makes several recommendations relating to the recording of driver hours; of the 8 randomly selected drivers whose tachograph data was considered, all of them had exceeded the 28-day download date. Despite a company policy to download the tachograph data at least every 28 days, 2 of the drivers last download were between 60 and 70 days.

The findings of the Maintenance Arrangements Audit was said to be ‘Amber’, but it recorded serious deficiencies (‘Red’) against driver defect reporting, safety inspections intervals, incomplete safety inspection reports, and wheel removal and re-torquing procedures. On Driver Defect Reporting - the audit states that the records indicate that a number of reports have been incorrectly completed and formal training should be given to the drivers; on Safety Inspections - The audit states “planned inspection intervals apparently being exceeded…the chart indicates that some of the inspection intervals appear to have exceeded the planned programme. If no reports are missing then the inspection intervals appear to be erratic. From the eight vehicle files checked, three of the vehicles had inspections that exceeded the planned programme.”; on the Safety Inspection Report Forms - the audit highlighted that items had not been fully or correctly completed, with 27% of the forms checked being incorrect and the operator was also strongly advised that laden calibrated roller brake tests should be carried out at each safety inspection; on Wheel Removal and Re-torquing, - the audit states “All safety inspection reports record both tyre pressures and tyre tread depths forming part of the basic tyre management system. Drivers are not shown how to identify tyre defects and this could form part of the driver manual or a “toolbox talk” in relation to on-going training”.

The operator’s response suggested that some training had been carried out, with more to follow. It refers to new forms to monitor and maintain compliance. For some reason that document was not referred to a Traffic Commissioner. It is now clear that any training stopped sadly short of the Director.

The decision to grant was, in part, based on a statement in relation to the availability of funds as evidenced by the loan. The bank statements suggested a device to obtain grant and a commercial advantage. Statutory Document No. 2 on finance refers to the Upper Tribunal and the distinction to be drawn between funds that are actually available to ensure the establishment and proper administration of the business and those which are technically available but will never be used. Counsel refers to 2017/007 Michael Hazell (No.2). The risks were fully explained by Judge Brodrick in the stay decision on 2014/065 Trevor Kevin Dibnah trading as Weyside Travel. Mr Singh readily acknowledged that the facility was too expensive to use, so he repaid the money almost immediately after grant. That material change was not notified, and the operator gained an unfair commercial advantage. The written submissions lodged after the hearing suggest that Mr Singh now appreciates that the facility provided by Reward Capital Ltd was not actually available.

I therefore proposed to refuse the application under section 17 by reference to 13A(2)(b), (c), (d) see the audit and I and was minded to revoke the operator’s licence under section 26(1)(e), (f) undertakings at grant, fit & serviceable, DDRS, (h): 27(1)(a) repute, financial standing, and professional competence. Mr Dewey resigned shortly after receipt of the audit document.

I found the ‘audit’ report to be light on detail by reference to evidence and contained considerable hearsay. However, it raised questions about driver employment status but then failed to link that with the disciplinary purposes. I noted a reference to a mixture of wages to employees and then other payments to non-employees. I record the change in the relationship with Staff Right Ltd at paragraph 15 above. On the recent statements the only reference to the payment of wages involved a Varinder Kaur. There appear to be repeated and significant payments to ‘Vital Drivers’. The Companies House register shows as engaged in ‘78200 - Temporary employment agency activities’. One of the Directors is Harbinder Singh. Written submissions lodged after the hearing indicate that “the operator understands that going forwards it should only engage drivers in such a manner so as to be able to ensure effective control over them and so that it does not gain an unfair commercial advantage”. This does not represent the firmest of commitments and I contrast that position with the appeal decision in 2019/54 Bridgestep Ltd & Tom Bridge, where the Tribunal commented that “unless they are an owner-driver, it is very rare for a lorry driver to be legally “self-employed”. The Tribunal referred to the HMRC guidelines and found that the decision not to follow them was highly questionable, anti-competitive and led to a loss of control over the drivers.

The operator supplied records for 10 of the 19 vehicles. It was noted that EN65 BYD is no longer specified. From dip sampling I noted the following:

EY15 BZD

• 30 January 2021 – (23+ weeks before the hearing) inspection suggesting a roller brake test: 53%, 36%, 23%, records a nearside marker fault but no deriver defect report.

EJ65 TMU

• 28 April 2021 – (11+ weeks before the hearing) inspection suggesting a roller brake test but 30%, 10%, 14%, despite heat cracks in the front brake discs; it records weight distribution switch not illuminated, driver heater vent etc broken, cab interior bulb broken, brake hose chafing, n/s/r tail-light inoperative, both o/s/r sidelights and end marker inoperative, amongst other defects.

EJ65 TNF

• 28 April 2021 – (11+ weeks before the hearing) inspection with attached underladen roller brake test print out showing 32%, 13%, 14% despite cracked axle 1 brake discs; it records heater vent broken, out of date fire extinguisher, updates required on the ECU software, camera not bonded to the windscreen, washer fluid required – warning on dash, air-line broken, insecure catwalk clamp and bolts loose, rip in seats, air deflector security, tachograph illegible and plaque unreadable, heated mirror switch etc.

EN65 BYD

• 6 July 2021 – (10+ weeks from previous inspection) inspection suggesting a roller brake test but 30%, 13%, 11% and print out records significantly under-laden; it records Adblue filler magnet missing, out of date fire extinguisher, ECU update required for gearbox, oil required, camera not bonded to the windscreen, axle 1 spray suppression bent, windscreen chip, warning for heated mirror, instruments and warnings not illuminated – PTO, emergency brake, reverse alarm, etc.

• 27 April 2021 – inspection suggesting a roller brake test but recording “37N, 24N, 11N” and print out records significantly under-laden despite cracked rear brake discs, also recorded ECU software updated required, electrical control unit incorrectly fitted, oil required, insecure cab locks, instruments and warnings not illuminated, warning for heated mirror, etc

EY15 BZE

• 17 June 2021 - inspection suggesting a roller brake test but recording 28%, 25%, 12% and print out records significantly under-laden, also recorded offside rear spray suppression missing, offside rear wing holed, offside front grille catch missing, tilt pipe leaking, offside marker lamp missing,

• 4 April 2021 – inspection suggesting a roller brake test recording 53%, 37%, 20%; recorded ECU software update required, 5th wheel, rear spray suppression damaged, wing tops and wings damaged, front cab mountings, roof spoiler loose, PTIO oil low etc.

EY15 BZC

• 27 April 2021 – (11+ weeks before hearing) inspection suggesting a roller brake test recording 30%, 12%, 14% and print out records significantly under-laden despite cracks to front discs; also records nearside tail light broken, fog light inoperative, dipped headlamp inoperative, driver’s floor mat holed, tyre valve extension missing, ECU software updates required but unable to connect, 5th wheel, door pins worn, worn seats, air deflector buffers missing, plastic guides worn, NOx sensor missing, driver’s door welds cracked,

• 10 March 2021 - inspection suggesting a roller brake test recording 30%, 11%, 12%, despite front brake discs starting to hear crack; also recorded heater controls inoperative, axle 3 nearside inner tyre valve extension, colling system low, 5th wheel, can mount loose, insecure electrical cables, plastic guides broken, offside middle marker lights inoperative, lift axle guides worn and broken, deriver door welds cracked, nearside front grille damaged, PTO pipe leaking, off-side front tyre cut.

The operator apparently employs a weekly driver defect reporting sheet, what it describes as a’ pre-shift vehicle check’. There is a separate sheet to specify defects, with little space in the columns to record rectification, but these are invariably ignored. I found the driver defect reporting to be cursory at best and not assisted by the operator’s own pro-forma. Counsel’s written submissions accept that the vehicle maintenance, including brake testing, was inadequate and that the driver defect reporting forms were wholly inadequate and not being completed properly in any event. Mr Cowdell confirmed that he would address the deficient systems, including the form and seek to train the drivers, as well as addressing the other issues highlighted in the audits. Mr Singh appeared to accept that advice, but Mr Cowdell’s status has since changed.

A Period of Grace was granted on the prospect of a replacement Transport Manager being approved by 31 July 2021. That was based on the nomination of Jagjit Singh. His email of 15 July 2021 communicates that he was only let go on 14 July 2021. He describes himself as ‘an admin and a general worker/driver’. He confirms that he is not responsible for compliance and has not been paid as a transport manager. He goes on, ‘I was only doing what he instructed me to do. He is using me as an extra driver, admin worker’. I was concerned that his nomination had been used as a device. This was denied by Mr Singh, and I was supplied with a letter of dismissal issued to Jagjit Singh dated 14 July 2021. It refers to a failure to collate the paperwork required for the purposes of this hearing. That is to a degree corroborated by various pieces of correspondence received from Smith Bowyer Clarke, which communicated the expectation that Jagjit Singh would arrange for the delivery of papers to my office.

The dismissal letter suggests that Jagjit Singh retained documentation at his home. It blames him for failing to install or operate any meaningful system of maintenance, vehicle or driver record-keeping, any proper forward planning or of drivers’ compliance etc. The letter acknowledges that the operator’s licence is at serious risk, but the letter fails to record the duties on the Director to ensure oversight. The written submissions refer to Mr Singh’s evidence that he had initially delegated responsibility to Mr Dewey and that after the supply of the two audits, he had been assured by Mr Dewey, that he was putting new systems in place. Mr Singh did nothing to check this. When Mr Dewey left, Mr Singh apparently discussed those same areas with Jagjit Singh. He was assured by references to the application for Fleet Operator Recognition Scheme Bronze level. If he had looked at the scheme, he would have noted that it provides limited assurances against the statutory requirements of the operator’s licence. As the written submissions confirm, he considered his role to be one purely of business development. The Public Inquiry has apparently alerted him to his duties as a director.

To be clear, Jagjit Singh was never authorised to act as Transport Manager. It is long-established law and particularly since the Upper Tribunal decision in 2015/049 Matthew Reynolds, that I can only consider the repute of a Transport Manager once they have been appointed. One of the purposes of this hearing was to determine whether Jagjit Singh could act on this licence. That application was eventually withdrawn, but the circumstances now form part of the record.

5. Determination

On the basis of the evidence, summarised above, I am satisfied that I may make adverse findings under section 26(1)(e) – the statement to comply with the conditions on the licence has not been met; 26(1)(f) – the undertakings that vehicles and trailers would be kept fit and serviceable, to employ an effective written driver defect reporting system, finance undertaking were not met (see paragraph 13); 26(1)(h) – there has been material change in the circumstances of the holder, in that Mr Dewey did not meet the statutory duty as Transport Manager and the operator has not met the continuing requirement for professional competence since. I record the adverse finding under section 27(1)(a), which made so as to allow the Period of Grace.

It was acknowledged that there had been an almost complete abdication of the Director responsibility. Mr Singh referred to his role on generating more custom and developing new routes, but he had left all compliance matters to Mr Dewey and then Jagjit Singh. There was scant regard to maintaining the asset upon which the business relies, namely the operator’s licence. There was no evidence that he had taken any action in response to his own audit, beyond handing on the role without any checks. Even today, whilst I have been provided with email confirmation from Altta Group Ltd, it remains the case that Mr Singh has yet to receive any training to better equip him to oversee compliance and apparently will not receive such training until October 2021.

There appeared to be very little basis to prolong the Period of Grace. As the Upper Tribunal noted in 2014/008 Duncan McKee, when considering whether or not to grant a period of grace, Traffic Commissioners will need some tangible evidence, beyond mere hope and aspiration, that granting a period of grace will be worthwhile, and that there are reasonable prospects for a good outcome. Some sort of analysis along these lines will be necessary because, amongst other reasons, Traffic Commissioners have to decide how long to grant. I heard from Mr Cowdell, who gave textbook answers to several of my questions, but he acknowledged that further reading was required around laden metred brake testing. The main reason for holding my decision in abeyance was to allow opportunity for the formal nomination of Mr Cowdell to proceed. I was concerned by the suggestion that the contractual arrangement would be through AS Miles, which would not equate to a genuine link. I held my decision in abeyance to allow this to be considered. It was proposed that Mr Cowdell be engaged for 25-30 hours a week, but the position changed yet again after the hearing.

In his written submissions, Mr Davies explained that the operator will now still seek to utilise the services of AS Miles Consulting Ltd, but it has nominated a full-time CPC holder, Catalin Mindrila. I was assured that Mr Cowdell will be retained on a consultative basis. The added “comfort” to be drawn from that continuing arrangement is tempered by the fact that I can attach little weight to the offer of an audit by the same consultancy. There is an obvious reason why traffic commissioners require audits to be independent of the operator.

Counsel somewhat optimistically suggested that the position in respect of the proposed Transport Manager has improved. The written submissions assert that Mr Mindrila will be better placed to assist Mr Singh and to exercise continuous and effective management. A TM1 form was lodged on 26 July 2021. I referred to the appeal decision in 2011/036 LWB Ltd, which refers to a TM1 form and proof of qualification and the ability to exercise ‘continuous and effective responsibility’. I had opportunity to hear from Mr Cowdell, but I do not know Mr Mindrila. I note that his Certificate of Professional Competence was only issued on 29 April 2021. I was mindful of the caution demonstrated by the Tribunal in 2014/058 Angus Smales trading as Angus Smales Eventing, to the newly qualified. I, therefore, directed that this be raised with those representing the operator

On Friday, 30 July 2021, I was supplied with two letters: the first is from Mr Miles of AS Miles Consulting Ltd, recounting a one-hour meeting with Mr Singh and Mr Mindrila on 29 July 2021. The stated purpose of the meeting was to gain some insight into Mr Mindrila’s experience, qualifications, and initial ideas in respect of this operator. It conforms that Mr Mindrila has seen the audit to which I refer above. He is described as a gentleman in his 50s who has “many years of life experience in the law in Romania”, and is well educated. Mr Miles is impressed that he has already our forward written proposals. I extended the Period of Grace only for the purpose of allowing me sufficient time over the weekend to consider the content and to record my decision. The second document is a two-page document dated 29 July 2021, but not specifically addressed to me. It states that Mr Mindrila has been working as a professional driver since 2014. He is a member of the Chartered Institute of Logistics and Transport and avails himself of various e-alerts from regulatory and representative bodies. Mr Mindrila records how he obtained experience with a former employer (13 vehicles) and refers to various aspects of the operator’s licence: drivers’ hours and vehicle recording, infringement processes, missing mileage, driver card checks, sport checks of vehicles, maintenance planning, driver walk rounds and defect reporting etc. Mr Mindrila also seeks to address some of the areas highlighted by the audit in respect of driver discipline and management, preventative maintenance, and training.

In summary, Mr Mindrila proposes to be present from Monday to Friday. He states that he will oversee the induction of drivers. He sets out various training resources, which will be recorded in the unique driver’s file. That will contain records of other checks. Reference is made to periodic reminders to existing drivers with quarterly driver licence checks and alcohol spot checks. There will be toolbox talks twice weekly. He goes on with his plans to implement the R2C-DCC app, which appears to be a driver reporting system. He also refers to fleet management software including a maintenance schedule and automated reminders for preventative maintenance inspections, annual tests, services, brake tests and tyre changes

In these circumstances, the repeated change in the proposals for a transport manager undermine the operator’s position. In the appeal 2014/050 Andrew Harris trading as Harris of Leicester, the Upper Tribunal “Given the importance attached to operators complying with the regulatory regime and given that transport managers must: “effectively and continuously manage the transport activities of an undertaking holding an operator’s licence”, it seems to us that whether or not an individual has the character, personality, ability and leadership qualities to ensure compliant operation as an operator or to effectively and continuously manage the transport activities as a transport manager is a factor which can, properly, be taken into account when assessing good repute.” I was able to assess Mr Cowdell, but not Mr Mindrila. The appeal decision in 2014/008 Duncan McKee, states that when considering whether or not to grant a period of grace, Traffic Commissioners will need some tangible evidence, beyond mere hope and aspiration, that granting a period of grace will be worthwhile, and that there are reasonable prospects for a good outcome. I have given consideration as to whether I should further delay my decision to allow further opportunity to put forward an acceptable CPC holder. As the current position appears to be almost entirely of the Director’s making, I do not judge that to be in the interests of justice.

Counsel very properly accepts that this case falls within the ‘Serious’ conduct for the purposes of Annex 4 of the Senior Traffic Commissioner’s Statutory Document 10, but it was suggested that I might reach a positive conclusion in respect of 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? For the reasons set out above, I do not share Counsel’s optimism.

In 2013/082 Arnold Transport Ltd, the Tribunal explained that the grant of an operator’s licence does not mean that an operator can then proceed on the basis that the requirements that must be met to obtain a licence can thereafter be disregarded. The operator licence imposes continuing obligations, which an operator is expected to meet throughout the life of the licence. It reminds operators that a standard licence shall be revoked if at any time it appears that the licence-holder is no longer (i) of good repute, (ii) of appropriate financial standing or, (iii) professionally competent. That decision emphasises the trust which is placed in the operator (in this case a sole Director) and that other operators must be able to trust their competitors to comply, otherwise they will no longer compete on a level playing field: “In our view this reflects the general public interest in ensuring that Heavy Goods Vehicles are properly maintained and safely driven. Unfair competition is against the public interest because it encourages operators to cut corners in order to remain in business.” That decision goes on to stress “the old saying that: “actions speak louder than words”… We agree that this is a helpful and appropriate approach. The attitude of an operator when something goes wrong can be very instructive. Some recognise the problem at once and take immediate and effective steps to put matters right. Others only recognise the problem when it is set out in a call-up letter and begin to put matters right in the period before the Public Inquiry takes place. A third group leave it even later and come to the Public Inquiry with promises of action in the future. A fourth group bury their heads in the sand and wait to be told what to do during the Public Inquiry….. it seems clear that prompt and effective action is likely to be given greater weight than untested promises to put matters right in the future. I am not even in a position to allow the appointment of a replacement Transport Manager.

The challenge lies as much with the Director as it does with the position of Transport Manager. It remains the case that Mr Singh is ill-equipped to ensure compliance. It is suggested that the Director is under no illusions as to the extent of his roles and responsibilities but undermines this by suggesting that “it is not sufficient to completely delegate compliance with the statutory requirements”. I am assured that he was sincere in his evidence and can be trusted to ensure compliance going forwards, whilst the submissions leave me with a contrary impression. The operator does not assist by suggesting that the issues with basic requirements for maintenance and driver defect reporting are attributable in the first instance to the default of Mr Dewey and Jagjit Singh. It was further suggested that Mr Singh was entitled to rely on the FORS certification when considering whether Jagjit Singh was rectifying the issues identified.

I reject both those suggestions, particularly when Jagjit Singh was never accepted as the Transport Manager. As far back as 1999/L56 Alison Jones trading as Jones Motors, Shamrock Coaches and Thomas Motor Services, the appellate Tribunal stressed that the ultimate responsibility for supervising maintenance compliance rests on the operator and failures by employees or outside contractors is a matter for mitigation only. In 2012/025 First Class Freight Ltd, the Tribunal made clear that persons who control an entity which operates heavy goods or public service vehicles must have sufficient knowledge to exercise proper oversight. A simple look at the FORS documentation would and should have alerted the Director to its limitations.

The submissions refer directly to 2009/225 Priority Freight. I find that the operator’s position is mainly one of untested promises and based on the repeated failure to act by the sole Director, I can attach very little weight to additional promises made now. This is a case where deterrent action is required, and I refer to 2019/025 John Stuart Strachan t/a Strachan Haulage. I am told in submissions that any suspension, however short, would result in the collapse of the business. Any meaningful curtailment of any more than two vehicles will mean the loss of a new contract. In any event, other operators would be entitled to look at this history, the state of compliance on the date of the public inquiry and the lack of response to the obvious, and correctly question why they have taken steps to ensure compliance. In my assessment, the history above makes it unlikely that the operator will achieve basic compliance, unless it takes more immediate steps. This is a case where the operator should be removed from the industry, and I make the attendant finding under section 27(1)(a) as a loss of repute. I regret that the circumstances do not suggest allowing it to operate for a further 3 months, waiting for basic compliance. What little credit I can give for the last-minute scramble is reflected in my decision not to disqualify the operator and Director. The Operator’s Licence will be revoked from 23:45 on 27 September 2021.

Mr Dewey failed to appear at the hearing or to respond to correspondence. I therefore have no explanation from him for the circumstances outlined in the first audit. That is of concern as it forms the basis for a finding that he has failed to exercise effective and continuous management of the transport undertaking, whilst named as the Transport Manager on this licence. In the absence of any other information, I must take action to ensure that other operations are not jeopardised in this was as well. I make a direction preventing Mr Dewy from, relying on his Certificate of Professional Competence. In the absence of any representations, it is difficult for me to set an appropriate rehabilitation measure. However, Mr Dewey can apply to a Traffic Commissioner to vary that direction under paragraph 17 of Schedule 3 of the Act, at which time the presiding Commissioner will need to be satisfied as to his ability to meet the statutory duty.

Richard Turfitt

Traffic Commissioner

2/8/21