Decision

Decision for Dancon Haulage Limited (OK2018188)

Published 9 June 2023

0.1 In the South Eastern & Metropolitan Traffic Area

1. Written Decision of the Traffic Commissioner

1.1 Dancon Haulage Limited (OK2018188)

2. DECISION 

The application to surrender Licence OK2018188 Dancon Haulage Limited is refused. 
 

Pursuant to adverse findings under section 26(1)(a), (c)(iii), (e), (f) and (h) and section 27(1)(a) and (b) of the Goods Vehicles (Licensing of Operators) Act 1995, Dancon Haulage Limited no longer meets the requirements of section 13A(2)(b) and (c) and (3) of the said Act - good repute, financial standing and professional competence. Accordingly, Licence OK2018188 Dancon Haulage Limited is REVOKED with immediate effect.   
 

No direction is made under section 28 of the 1995 Act.  However, any future applications by Dancon Haulage Limited and/or Tracey Lyons to hold or obtain a Licence or be engaged in an entity that holds or obtains a Licence must be referred to a Traffic Commissioner and not dealt with under any possible delegated authority. 
 

The Transport Manager designated by Dancon Haulage Limited Tracey Lyons no longer satisfies the requirements of paragraph 14A(1) and (3) of Schedule 3 the 1995 Act upon a finding that she is no longer of good repute or able to exercise the responsibilities of a transport manager in the interests of the Operator. Ms Lyons is disqualified for an indeterminate period from relying on her CPC with immediate effect, subject to Schedule 3, paragraph 17 of the 1995 Act.

3. REASONS

[All page numbers refer to the Public Inquiry bundle served with the call-in letter. ]

3.1 Background and Hearing

Ms Tracey Lyons is the sole director and nominated transport manager for Dancon Haulage Limited (“DHL”). Ms Lyons was therefore called to PI in two separate capacities. The full history and the issues before the Inquiry are set out in the call-in letter dated 10 March 2023 (pages 8 – 12), supplemented by the Case Summary (pages 4 – 6). Of particular note the Case Summary includes: 

The operator received an S marked prohibition on 03/11/22 for “Tyre damage to tread area and cord or cords are exposed”. On 23/11/2022 the operator submitted a variation application to decrease authority on this licence from 15v 0t to 4v 9t. The variation application was granted on 24/11/2022.  

On 24/11/2022 an application was submitted for a new operating centre at Express Concrete, Standard Wharf, Manor Road Erith DA8 2AD and the removal of the current operating centre at Anchor Bay. Industrial Estate, Manor Road, Erith, DA8 2QA. 
The Vehicle Examiner (VE) noted the operator is engaged in the collection and delivery of ready mix concrete They have links to TarMac Services through an arrangement in whereby TarMac Services give the operator contracts and regular work referred to by the operator and her advisor Sean Wright as day contracts or spot hire. Tarmac Services insure the operator vehicles under a binder policy (copy in included in PI Brief). The drivers are not employed or paid for by the operator they come from a company called Conscare.  When asked if this was a driver agency the operator Tracey Lyons said “yes sort of” The operator was accompanied by Sean Wright at the inspection he had all the drivers details and documentation. He was not employed by the operator.  
The VE found the following shortcomings:  

• Unauthorised operating centre Express Concrete, Standard Wharf, Manor Road, Erith, DA82AD being used for approximately 3 months, due to landowner seeking the land for development.

• The VE noted adequate parking for 4v no formal parking agreement was made available.

• PMIs on old copies of Mercedes Benz electronic sheets but carried out by UK Diagnostics Solutions Ltd

• No metered brake tests. PMIs signed off as road worthy despite showing a brake lining measurement of 0mm.

• PMIs not completed correctly with no customer address and location of PMI completed. There were also mileage discrepancies and tyre dates not recorded.

• One inspection frequency exceeded.

• VOR system not in place

• No safety recall system in place

• DDR completed on London Concrete book and minimal defects recorded, no provision to record who the defect was reported too.

• Maintenance provider was mobile at the unauthorised operating visited there was no covered vehicle inspection facility.

• No emission control systems in place

• No systems in place for wheel/tyre management

• The drivers not employed by the operator; they are all employed by Conscare.

The VE noted Ms Lyons as the nominated TM completed her CPC on 22/08/17 no further CPD completed.  The VE stated “When I explained to her maintenance records show no brake performance checks and that this is not in line with the GTMR, she stated that the GTMR is not law “

Licence records confirm the application for the new operating centre was withdrawn on 13/02/23. The licence case notes confirm a licensing caseworker had a telephone conversation with Tracey Lyons on 14/03/22 [SBTC note for written decision - this should be 14/02/23] concerning the withdrawal of the variation application (full copy of case notes included in the PI Brief). In summary the notes confirm “She said her mental health was suffering. I asked, “are you parking hgvs at express concrete standard wharf” and she said yes. I said that OC is not on her licence. I said this licence would go forward for consideration of revocation and she said she would try and surrender.”

A surrender request was received on 14/02/23. [SBTC note for written decision - this should be 02/03/23] 

The DVSA VE received a  response from the operator on 16/02/23 ( A full copy is included I the PI Brief ) the operator noted “ Your visit, and the outcome of your visit has firstly highlighted the failures within the business but more importantly to me, it has also highlighted that personally and mentally , I was not in a good place. With all these factors being considered , I feel that my personal well being is the the most important thing and with this in mind, I have now decided to surrender my operators licence   .

The VE also noted in his report  “ Throughout my investigation the operator has been vague when answering any questions relating to her business operations and maintenance systems. It became apparent that her brother holds two other operator licences that vehicles have been moved from , which she did not want to make reference too “ 

Daniel Patrick Lyons is the sole director on both linked MLH licences:  

OK1117843 Dancon Services Ltd granted on 04/06/13 authorisation 29v 2t . Daniel Patrick Lyons is listed as TM on this licence . The licence was granted at Public Inquiry on 24/04/13.

OF2056101 Dancon Services Ltd granted on 04/06/22 authorised for 16v Shaun Alan Wright is the TM on this licence  

There is no compliance history recorded against the licences  

The registered licence users for the above licences are Daniel Lyons, Shaun Wright and Tracey Lyons  

On licence OK2018188 Dancon Haulage Ltd the registered licence user is Tracey Lyons

Tracey Lyons is only nominated against licence OK2018188 Dacon Haulage Ltd as TM for 37 hours per week no other employment is stated on her TM record.   

All the vehicles specified against licence OK2018188 Dancon Haulage Ltd were previously specified against licence OK1117843 Dancon Services Ltd  

By way of additional background, on 8 February 2023 DVSA sent the MIVR to Ms Lyons and required a response within 14 days before possibly referring the case to the Office of the Traffic Commissioner (“OTC”). It follows Ms Lyons was aware of the DVSA concerns when she spoke with Licensing on 14 February 2023. On 16 February 2023, Ms Lyons wrote to DVSA in response to the MIVR listed shortcomings. Ms Lyons stated that she was unable to cope due to personal circumstances and intended to try and surrender the Licence. She failed to deal with any of the specific matters. The same day, after the case was referred to me, I determined that the issues raised in the VE report were so serious as to require a Public Inquiry for the Operator and Transport Manager. On 2 March 2023 the Operator lodged via recorded delivery an application to surrender the Licence. The case was referred to a DTC in my absence who confirmed that the PI should proceed due to the serious issues in the case. On 21 March 2023, Ms Lyons wrote to my office and the letter included: “I will not be attending the proposed hearing on 18 April. I have made that decision in the knowledge that the traffic commissioner will inevitably revoke the company’s operator licence and will probably maker (sic!) an adverse finding on the repute of the company and probably myself as director. I am also aware that my repute as transport manager may also be tarnished and possibly lost”.  
 

Ms Lyons was made aware that the hearing would proceed, and it was a matter for her if she changed her mind as she clearly understands the potential consequences. On 18 April 2023, Ms Lyons did not attend. I heard oral evidence from the VE. During evidence it was noted that 4 vehicles remained specified on the Licence. I directed that they be removed immediately as Ms Lyons had previously confirmed in writing that vehicles were no longer operated by DHL. At the conclusion of the hearing, I confirmed that I would issue a written decision. 

3.2 Approach

As per 2013/008 Vision Travel International Limited and 2013/061 Alan Michael Knight I am entitled to treat the conduct of a sole Director Ms Tracey Lyons effectively as the conduct of the limited company and repute or fitness is determined accordingly. As well as the operator licensing obligations, a company director must exercise his or her statutory duties of demonstrating independent judgement, skill, care, and diligence, as per sections 173 and 174 Companies Act 2006. 

3.3 Evidence

The VE was a measured and fair witness and I accept his evidence. The VE adopted his written report (pages 49 to 78) unamended and confirmed that since he signed it off the operator had no further MOTs or roadside encounters. The VE confirmed announced visits to an Operator usually allow for one week’s notice or thereabouts, but Ms Lyons was not helpful. When he contacted Ms Lyons to arrange the visit, she said the vehicles were on hire and out and about and she would get back to him. Ms Lyons failed to do so and so the VE called again and agreed a date (29/11/22), which meant the Operator had approximately 3 weeks’ notice of his investigation. During the call confirming the arrangements, Ms Lyons stated that the vehicles were at “Express Concrete”, which is not the designated Operating Centre. It was only then that the Operator applied to add Express Concrete as an Operating Centre. 

On 29 November 2022 Ms Lyons was accompanied by a man who introduced himself as ‘Sean Wright’ and said, “I am advising Tracey”. At one point Mr Wright intimated that he worked in the yard. The records were in one large ‘bag for life’ containing lever arch files. The VE has asked Ms Lyons twice who Mr Wright is employed by, but she said she did not know. It was after the visit that a fellow Examiner said it was likely Shaun Alan Wright, Transport Manager on one of the Dancon Services Limited’s Licences. The following VE oral evidence of knowledge and documents obtained during the visit and before referring the case to OTC is of direct relevance to this decision: 
1. The VE drove passed the previous operating centre and it was being demolished. It was no longer suitable or available. Ms Lyons admitted being based at Express Concrete for 3 months. 

1. Ms Lyons deferred all responses to questions about drivers and their training to Mr Wright and Mr Wright produced such documentation as were available.  

2. When the VE tried to engage with Ms Lyons generally, she was vague and mainly looked to Mr Wright. 

3. When it came to the maintenance systems Ms Lyons had little of relevance to bring to the conversation. The best he could get from Mr Wright and Ms Lyons was that there is a mobile fitter who came to the yard, but he may take a vehicle away for work to be done. 

4. There are no written agreements in relation to ‘spot hire or day hire’. It is all verbal and that is just the ways it is done. It may have just been general sub-contracting but there is no supporting evidence. 

5. Ms Lyons was able to explain that the drivers were sourced via Conscar a ‘sort of’ agency and she confirmed they are not employed by DHL. The driver daily defect sheets show drivers engaged full time and Ms Lyons told the VE that the drivers take the vehicle keys home at night. This suggests that the drivers should be directly employed by DHL to meet HMRC guidance and ensure proper control over the drivers 

6. Ms Lyons blamed the maintenance contractor for the recent “S” marked tyre prohibition without any apparent wider investigation.  

7. After the visit, once aware of Mr Wright and the connection to Dancon Services Limited, the VE asked Ms Lyons about DSL. At first Ms Lyons said she did not know Dancon Services. It was only when pressed Ms Lyons acknowledged the director of Dancon Services Limited is her brother but said she did not know anything else.  

8. The VE told Ms Lyons that he knew at least one of her vehicles was previously specified on her brother’s Licence, but she was again vague. The VE made it clear that the connection would be pointed out in his report, and she should respond at that point. She does not mention it at any point. 

9. The VE requested a copy of the ‘binder’ insurance policy for the Operator’s specified vehicles from its insurers. The policy produced by QBE (page77) is for Dancon (Services) Limited. Without wider explanation it does not cover DHL. 

3.4 Determination

Based on the evidence summarised above and the Operator’s own admissions in writing, I record the following adverse findings:

1. Unauthorised use of an operating centre for at least 3 months – section 26(1)(a) of the 1995 Act, which is also a criminal offence as per section 7 of the said Act. 

2. The Operator’s vehicles have received prohibitions – section 26(1)(c)(iii) of the 1995 Act. 

3. The Operator failed to fulfil the statement made on application that vehicles would be inspected six weekly - section 26(1)(e) of the 1995 Act. 

4. It has failed to meet the Licence undertaking to keep vehicles fit and serviceable - section 26(1)(f) of the 1995 Act. 

5. Material change: It changed maintenance contractor without notifying OTC within 28 days – section 26(1)(f) of the 1995 Act.  

There is an inaccurate belief in some parts of the industry that the Guide to Maintaining Roadworthiness (GTMR) is ‘mere’ guidance and can be dispensed with if the Operator chooses any different approach. The GTMR contains a mixture of legislative requirements and best practice (alongside setting out what is the ‘bare minimum’). Whilst not statutory guidance, GTMR is a collaboration between DVSA, TCs, trade associations and other industry experts. Compliance with GTMR for the operational fleet mix in question, whilst not having statutory authority, is strong evidence of appropriate and safe systems. If GTMR is put to one side then, subject to the legal provisions, the substitute must be equally robust in ensuring roadworthiness. By way of example Regulation 18(1) of the Construction and Use Regulations 1986 requires that “Every part of every braking system and the means of operation thereof fitted to a vehicle shall be maintained in good and efficient working order and properly adjusted”. This legal requirement underpins what then follows in GTMR about measured brake performance testing at each PMI. As per the Upper Tribunal in 2022/1227 Lineage UK Transport Limited “…brake testing procedures are of particular importance from the point of view of road safety”. The importance of GTMR in assisting the industry was recognised in 2014/058 Angus Smales t/a Angus Smales Eventing and Lineage confirms it remains as relevant as ever. Ms Lyons disdain for GTMR evidenced by her response to the VE on 29/11/22 (paragraph 5 above) is strong evidence toward explaining the chaotic position the Operator is in.
 

The call-in letter did not specifically refer to ‘fronting’ (as defined by the UT in 2012/071 Silvertree Transport Limited) and Dancon Services because it was not investigated to that level in relation to DHL. From the evidence at the hearing, I am satisfied this is, at least in part, because of Ms Lyons’ lack of candour in the face of direct questions from the VE. The call-in letter does say “In particular the Traffic Commissioner will consider the prohibition notices, your application to surrender the licence and links to Dancon Services.” Whilst acknowledging the seriousness of the case, Ms Lyons letter to my office fails to provide any further explanations on any aspect of the call-in letter and PI bundle. Ms Lyons failed to submit records and other evidence required to assess whether any improvements happened after the DVSA visit and if mandatory grounds to hold a Licence remain in place. These documents may also have shed some transparency on any arrangements with Dancon Services. A request to surrender the Licence does not override the obligation to co-operate, especially where there may be mischief behind such a request. Ms Lyon’s knew that the decision on whether to accept surrender would only happen after consideration of all the evidence at the hearing conclusion. It was in her interests to submit anything helpful, with external help if necessary.  
 

To check the veracity of Ms Lyons statement that she knew nothing of her brother’s business, I asked the PI caseworker during the hearing to contact the VOL team for more details of self service users on Dancon Services than in the bundle Case Summary. The VOL team confirmed that Shaun Wright and Ms Lyons were granted VOL user accounts for Dancon Services on 15 March 2022 by her brother (the sole director Danny Lyons) and Danny Lyons removed her access on 12 April 2023. This undermines Ms Lyons evidence to a significant degree - why would someone with no knowledge/involvement/connection need to access Dancon Services Licence record - when taken together with vehicle specification links.  What is apparent, in the absence of further oral and/or written evidence, is an unacceptable blurring of the lines between DHL and Dancon Services. The point of effective systems, which in turn should include proper internal (and as appropriate) external auditing, are to ensure demonstrable arms-length, safe and fair transport operations. The evidence before me on balance demonstrates that they are absent here to a significant and unacceptable degree.  
  

Ms Lyons is the sole director and transport manager. They are distinct roles and where an individual chooses to wear both hats great care is needed. A director MUST exercise quality monitoring and control of the transport operations. A transport manager MUST exercise continuous and effective management of the transport operations. The whole point of a system is that if one part of the system fails another will pick it up. If that does not happen, then the systems fails. A system that does not work is no system at all. The limited evidence that Ms Lyons was actively involved at all demonstrates a reckless disregard for safety of everyone who may be impacted by the commercial enterprise of DHL.  

The Operator failed to provide admissible evidence against which financial standing could be confirmed – thus I make adverse findings under section 26(1)(h) and section 27(1)(a) of the 1995 Act. This of particular importance where safety has been compromised as if it is due to inadequate funding then it is an aggravating feature. 
 

DHL has also competed unfairly:

- 

1. By failing to employ the drivers with the requisite holiday and sickness entitlement, pension contributions, income tax and national insurance provisions (as per the Upper Tribunal in 2019/054 Bridgestep Limited and Tom Bridge); and 

2. By failing to employ a part time external transport manager under a formal contract for services to manage transport operations professionally as Ms Lyons was not disposed to it herself. 

There are few positives. Ms Lyons did attend the VE appointment and produce such records as the Operator held. Ms Lyons did submit an application to add Express Concrete as an Operating Centre albeit only after the VE pointed out the issue.  Ms Lyons appears to acknowledge how far below the standards she and the company have fallen and the seriousness of the situation. 

In light of the above, when I pose the question is this an Operator I can trust moving forward, but for the business cessation, the answer is ‘no’. There is no evidence before me at all to suggest that I could do so. If significant regulatory action were to put it out of business that would have been appropriate and proportionate. This may be a first Public Inquiry but that is not a barrier to revocation in serious cases such as this (Annex 4 STC Statutory Document No. 10). Ms Lyons has written about her personal health as the basis for not dealing properly with DVSA and not engaging with the Inquiry. However, no medical evidence has been lodged in support of this suggestion. In the absence of such corroboration, surrender is not appropriate in the circumstances of this case. On the facts it is more likely than not that the surrender request was made in an attempt to avoid full consideration of the failings and the commercial arrangements with Dancon Services. These issues needed to be explored contemporaneously to assess seriousness and not looked at in isolation, without the DVSA witness, at a point in the future if Ms Lyons applies again. I have stepped back from director disqualification but there will be a high hurdle to get beyond with this history in any future application. The burden of proof is on any Applicant. 

The breaches of the legislation, licence conditions and undertakings are inextricably linked with Ms Lyons failure to properly undertake the role of transport manager in a professional and transparent manner. It remains unclear whether she took any meaningful part in the management of the transport operations. For the majority of the VE investigation Ms Lyons was vague and deferred on certain topics to Mr Wright. These are not the actions of an individual exercising continuous and effective management of the transport operations. The evidence in this case demonstrates that Ms Lyons discarded control over safety to a significant degree. In these circumstances I am satisfied that a finding against her repute under section 27(1)(b) to prevent her from relying on her CPC is appropriate and proportionate. If she wishes to rely on it again in the future, she may make an application under paragraph 17 of Schedule 3 to vary or cancel this direction. 

Accordingly, I have reached the decision set out in paragraphs 1 – 4 above. 

Miss Sarah Bell

Traffic Commissioner

Written confirmation: 30 May 2023