Decision

Decision for D & M Express Ltd

Published 18 August 2022

0.1 IN THE EASTERN TRAFFIC AREA

1. D & M EXPRESS LTD – OF2039270

2. CONFIRMATION OF THE TRAFFIC COMMISSIONER’S DECISION

3. Background

D & M Express Ltd holds a Standard International Goods Vehicle Operator’s Licence authorising one vehicle and one trailer. The Director is Darryl Braithwaite. Sian Louise Pennell has been listed as the Transport Manager since 7 February 2022.

There is one Operating Centre at Canaan Farm, Ashby Parva, Lutterworth LE17 5JD. Preventative Maintenance Inspections are said to be conducted by the Truck Doctor at 6-weekly intervals. There is a suggestion that this might be a mobile mechanic.

This licence commenced from 17 March 2021. Sian Pennell replaced Rebecca Smith as Transport Manager. Ms Smith resigned on 1 September 2021, but Ms Pennell was not authorised until 7 February 2022, whilst the operator pursued a number of different nominations.

4. Hearing

The Public Inquiry was listed for today, 13 July 2022, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The hearing was delayed awaiting the arrival of the operator, but it failed to appear. There was no information to suggest that it would not attend.

5. Issues

The public inquiry was called at the request of the operator and following notice that I was considering grounds to intervene in respect of this licence and specifically by reference to the following sections of the Goods Vehicle (Licensing of Operators) Act:

• Section 26(1)(b) - whether the licence holder has breached the conditions of its licence.

• Section 26(1)(e) – whether statements made by the licence holder at the time of application were either false or not fulfilled.

• Section 26(1)(f) – whether licence undertakings have not been fulfilled.

• Section 26(1)(h) – whether there has been a material change regarding financial standing and/or professional competence.

• Section 27 – whether the licence holder has a stable establishment in the UK, is of good repute, has the appropriate financial standing and is professionally competent.

• Section 28 – consideration of disqualification in the event of revocation.

Ms Pennell was invited to attend the hearing so as to assist in respect of the management of the transport activities. No communication was received from Ms Pennell.

The operator was directed to lodge evidence in support by 29 June 2022, including financial, maintenance and other compliance documentation. It failed to comply with that direction.

6. Summary of Evidence

DVSA Remote Enforcement Office issued invitations to attend a virtual new operator seminar on 6 May 2021; 8 July 2021 (but this seminar was cancelled by DVSA and rescheduled for 22 July 2021); and 26 August 2021. The operator failed to attend any of the scheduled seminars. An email of 27 January 2022 (page 84) suggests that Mr Brathwaite booked to attend the cancelled seminar.

Traffic Examiner, Graham Slaney, reports that he contacted the licence holder to arrange a visit on 13 October 2021 at his residential address. He was early but at 13:50, Mr Slaney was informed that ‘Darryl’ was in Dover. An email of 8 January 2022 (page 90) suggests that he had arranged to meet Mr Slaney at 14:00 but when Mr Braithwaite arrived at 13:50, Mr Slaney had already departed. Mr Slaney received no further contact from Mr Braithwaite.

As a result, my office put the operator on notice of potential intervention under cover of a letter dated 7 January 2022 (page 77). Mr Braithwaite initially indicated that he wished to surrender this licence as he was using 3.5 tonne vehicles, having sold his other vehicle some time ago. This licence is an international licence but does not have LGV authority recorded.

He later requested a Public Inquiry. I therefore allowed a Period of Grace for the nomination of Ms Pennell to be considered and she has now been appointed. This was communicated in an email dated 7 February 2022 (page 93), in which the operator was advised to contact Mr Slaney to rearrange the appointment, which was missed on 14 October 2021. He was also advised to arrange attendance at Operator Licence Awareness training and provide confirmation that accounts have now been received by Companies House. The printout at page 46 suggests that the last accounts are due on 31 July 2022.

7. Determination

In the absence of the operator, there was no evidence to contradict that evidence or to suggest any improvement by the operator or against which I might satisfy myself that licence undertakings have been met.

I was therefore satisfied as to the basis for adverse decisions under the following sections: 26(1)(b) – condition to notify of changes in the ability to hold the licence, including the availability of finance; 26(1)(e) statement that Ms Pennell would exercise effective and continuous management and that conditions would be complied with, 26(1)(f) undertakings to ensure that the vehicle would be kept in a fit and serviceable condition, that there will be an effective written driver defect reporting system, that maintenance records would be completed, retained for a period of 15 months and made available upon request, as here, and that the rules on drivers’ hours and tachographs would be complied with, 26(1)(h) a material change in the ability of the operator to hold the licence.

In the absence of the requested evidence, I concluded that the operator no longer meets the mandatory and continuing requirement for financial standing, with a finding made under section 27(1)(a), which is required to support maintenance. There is no evidence that Ms Pennell continues to be engaged.

In addition to the adverse matters identified above, the operator has decided to absent itself from this hearing. In addition, there has been no attempt to contact Mr Slaney. Taken together, I have no assurance as to future compliance and conclude that the operator should be removed from the industry. I accordingly make a finding of loss of repute under section 27(1)(a).

In the absence of any information and given the previous indication I see no reason to delay revocation, which will take effect from 23:45 on 15 July 2022 to allow for posting.

I have considered whether to disqualify, under section 28 of the Act, the company and director from holding an operator licence in the future. Having performed the same balancing act as described above, I have decided to do so. In deciding upon the length of the disqualification, I have taken account of paragraph 103 of the Senior Traffic Commissioner’s Statutory Document No. 10. This posts a starting point of between one and three years for a first public inquiry. I have in mind the useful indication from the Upper Tribunal in 2019/025 John Stuart Strachan t/a Strachan Haulage of the purpose of wider deterrence and the deliberate waste of limited tribunal resources, which are funded by the fees paid by all operators. Taking these factors into account, I have determined on a disqualification period of two years.

R Turfitt

Traffic Commissioner

13 July 2022