Decision

Decision for Hetton Transport Ltd OB2022702

Published 15 September 2021

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

In the matter of the Goods Vehicles (Licensing of Operators) Act 1981 (the Act)

1.1 Hetton Transport Ltd OB2022702

&

1.2 Beverley Jayne Warren Transport Manager (TM)

1.3 Public Inquiry at Hillcrest House, Leeds on 13 August 2021

2. Background and history:

This company has been the holder of a Standard National Goods Vehicle Operator’s licence for 7 vehicles and 3 trailers since 24 May 2019. Two vehicles are presently nominated on the licence.

The sole director is James Warren. His mother, Beverley Warren is the nominated Transport Manager (TM).

The licence had been subject to some formal regulatory action before these events, which prompted this calling-in to Public Inquiry.

Within six months of the grant of the licence, Propose to Revoke (PTR) processes began in September 2019. This occurred in circumstances where the Office of the Traffic Commissioner could not obtain responses from the operator, whose contact details not been updated by the company. The intervention was later ceased when a reply was provided but a warning was recorded (but later retracted by the Traffic Commissioner, after his further consideration).

On 25 June 2020 Propose to Revoke (PTR) processes were instituted afresh when correspondence regarding the operator’s ability to receive correspondence at one of its addresses went unanswered. Again, PTR processes were later ceased, but exceptionally the Traffic Commissioner granted a temporary permission for the operator to be communicated with through a PO Box number. Even though a new operating centre was subsequently granted, the operator has failed to update its correspondence address. To this day the correspondence address remains as a PO Box number.

Since the grant, there have been three roadworthiness encounters leading to the issue of immediate prohibitions, one of which was ‘S’ marked, and a delayed prohibition. The prohibition rate is 66.67%. Two traffic encounters led to one offence prohibition and a prohibition rate of 50%.

3. The call-up to Public Inquiry:

Papers served for this hearing referred to:

a) Breaches of conditions attached the licence (not notifying changes in maintenance arrangements and events affecting the operator’s professional competence),

b) Accumulation of prohibitions and fixed penalties,

c) Breaches of the statement of intent (as to the maintenance of vehicles at 6 weekly intervals, and that Beverley Warren would act as TM, that vehicles would normally be kept when not in use at the Thorpe Lane, Leeds operating centre and that Leeds Fleet Services Ltd would carry out all preventive maintenance inspections),

d) Breaches of the undertakings attached to it (particularly those concerned with fitness and serviceability of vehicles, drivers’ hours compliance and record keeping), and

e) Material change since the grant of the licence.

Such were the concerns that the operator was put on notice that the Traffic Commissioner believed that the operator might no longer be of good repute, professional competence and financial standing. Further, the company was made aware of the power of the Traffic Commissioner to disqualify it and/or its director, in the event of revocation of the licence at the hearing.

As far as the TM was concerned, she was given notice that in the light of the allegations made in respect of the operator that the Traffic Commissioner was concerned whether she continued to meet the requirements to be of good repute and be professionally competent. Again, she was warned of the consequences for her professionally including the loss of her good repute.

The principal evidence contained in a brief running to 223 pages referred to:

f) A report of inquiries commenced by Detective Constable Booth of the West Yorkshire Police Major Collision enquiry team in June 2020 into the employment by Hetton Transport Ltd of Adam Badkin. He had been employed by them in the role of driver, despite being disqualified for the holding or obtaining of a driving licence.

Driver Badkin had subsequently been convicted, when driving his private motor vehicle, of causing death by dangerous driving and causing that death, whilst subject to a disqualification from driving.

Director, James Warren had not been prepared to assist with police enquiries because he did not wish to implicate himself in any investigation.

The police officer drew an inference from the refusal to supply basic information sought by the police that the company had either employed Driver Badkin knowing that he was a disqualified driver, or had not carried out the requisite legal checks.

g) An investigation carried out by Traffic Examiners (TE) Wiles and Minter. The latter’s Public Inquiry statement and attachments were contained in the brief.

TE Minter concluded that his investigation had:

• Identified serious and significant breaches of the law, regulations and undertakings agreed to, at the time of the grant of the licence, including that:

• “The operator had failed to download both driver cards and vehicle units meaning there had been no oversight or control of the drivers. Driving licence checks have not been performed/ the operator has not demonstrated that checks had been carried out, if they had done so they would have identified Badkin as being a disqualified driver.”

• Identified in documentation that a range of companies (including Hetton Transport) appeared to be interconnected and operating as though a single entity including vehicles being used and operated by Hemmingway Aggregates Ltd, which did not hold an operator’s licence.

• Alleged that Hetton Transport was merely a front for other companies and served to lend legitimacy to their arrangements.

• Noted that Hetton Transport’s accounts were then overdue at Companies’ House and that the company was on notice as being at risk of strike-off.

• Alleged that Beverley Warren had no proper oversight in her role as TM.

• Alleged that when it was first discussed, Beverley Warren was unaware that she had been named as a director of Hemmingway Aggregates Ltd and HSY Ltd.

• Alleged that the answers which had been given as to the reason for her appointment as director were false (REDACTED), when in fact this happened when William Warren was removed as a director, due to his bankruptcy at that time.

• Alleged that Hemmingway Aggregates Ltd paid for the maintenance of trucks listed on the Hetton Transport licence, paid their drivers’ wages and invoiced companies for work done. Also, fleet insurance held was in the name of Hemmingway Aggregates, who also held the company card for tachograph downloading purposes.

h) A Traffic Examiner Visit Report (TEVR) by TE Minter, which carried such a high score that under current protocols it required the operator to be reported directly to the Office of the Traffic Commissioner.

The report concluded that

“The systems presently in place are not fit for purpose.”

Attached to the report was an unsigned and undated response by the operator, that provided some explanation, made some counter-allegations and disputed many of the findings of the TE.

The operator did however accept that there was

“[..] room for compliance development and improvement, we need to work on our controls and paperwork, and we are actively progressing this in these challenging times, but this exercise comes across as a deliberate punishment, instigated by the police for the promised retaliation”.

i) A Vehicle Examiner (VE) Maintenance Investigation Visit Report (MIVR) prepared by VE Lodge and dated 01 July 2021.

Of the 12 assessment areas considered by the VE, four were recorded as ‘unsatisfactory’ and one as “Report to the Office of the Traffic Commissioner”. The assessment of the TM also fell into the “Report to the Office of the Traffic Commissioner” category.

The issues raised by the VE included that there had been a change of operating centre from that nominated on the licence, an application was by then with the Traffic Commissioner. There was no evidence of any effectively managed safety defect and recall system in place. The nominated maintenance contractor was no longer used and the nature of the contractual arrangements with other suppliers could not be established. The operator was not monitoring emission control systems, and there was no evidence of wheel security arrangements.

The SIPCAT (Safety Inspection Period Calculator Analysis Tool) analysis showed that 28% of safety inspections were carried out late, 6% of inspections were not completed fully and 50% of inspections were carried out without a measured brake test.

The VE found that despite several attempts to communicate with the TM regarding her duties, she had never responded to DVSA.

4. Findings

I accept the statements and reports as credible and coherent analyses of the operation of the Hetton Transport Ltd licence. The operator has not requested the attendance of any report or statement writer at the Public Inquiry.

I find the allegations made under Section 26 of the Act to be substantiated on the balance of probabilities.

5. The hearing:

As is usual, the operator and TM were required in advance of the hearing to confirm attendance and to provide evidence about compliance arrangements over the preceding 6 months. Financial standing needed to be demonstrated through the provision of bank statements and other facilities, as well as the latest profit and loss reports filed at Companies’ House. None of these items was provided.

Attempts by my clerk to follow up missing documents with the operator and TM in the run up to the hearing were not fruitful, she had though managed to speak to James Warren on one occasion before the company disengaged with the process.

It was therefore not altogether surprising when neither the operator, nor the TM was present at the Public Inquiry. I was satisfied that service had been achieved by Royal Mail and signed for in respect of both.

I determined to deal with the operator in its absence, concluding that it had voluntarily chosen not to attend, as previously indicated.

6. Consideration and reasons:

This is a licence which has been running for a relatively short period. I recognise that for much of that period COVID19 will have provided the backdrop to operations. There have been prohibitions and considerable evidence of very poor practice; road safety has been prejudiced. The statements and reports of DVSA officers raise substantial issues of concern about compliance, which I have been deprived of the opportunity to examine at a hearing. The operator (and its director) have done very little that gives me any confidence all that I can have the necessary trust and confidence in it, as a licence holder. The operator appears to have limited understanding of the responsibilities of a licence holder to its regulator by attending and cooperating with the requirements of the Public Inquiry. Neither the director nor the TM have been prepared to attend the hearing and place their arguments and explanations before me. I am no longer satisfied that Hetton Transport Ltd is of good repute.

I further conclude that in accordance with Section 27 of the Act that the company is without professional competence for the reasons that follow.

I find that no attempt has been made to evidence financial standing.

Of equal, if not even greater concern is that the TM in this case has also chosen not to engage with her regulator. Serious allegations are made going directly to her good repute, but she has not sought to stand up and address them. From the materials before me, she has had very limited apparent involvement in this business and I conclude she has breached her responsibilities for the continuous and effective management of the transport operations.

I am not satisfied that it is likely that the operator can be trusted to operate the licence in accordance with the conditions, statements of intent or undertakings attached to it. I conclude it is right and wholly proportionate that the company be excluded from the licensed regime. Fair competition would otherwise be compromised, and standards and expectations of operators would not be upheld.

I have no information as to whether the operator is using large goods vehicles at this time. Revocation ought to take place immediately, but I delay the order taking effect for a very short period until the end of this working week, to ensure vehicles are back at base.

I have gone on to ask myself whether this is a case where disqualification should follow. I have referred to the Senior Traffic Commissioner’s Guidance. I conclude that such a direction is appropriate and that the exclusion of Hetton Transport Ltd and its director, James Warren from the industry as a sole trader, partner or director, is necessary. This is a relatively new licence but it appears that the director and TM have had other involvement with other licence holding (and non-licence holding) businesses requiring transport in earlier years. The evidence before me demonstrates James Warren is not an appropriate appointee as the director (or indeed as a sole trader or partner) of a haulage business. The period of disqualification is set at 3 years for both the company and its director.

I find that the repute of Beverley Jane Warren as transport manager is lost. I declare she is unfit to hold such position and is disqualified from holding office in that role indefinitely. I am not in a position to describe suitable rehabilitative steps and therefore such a disqualification is appropriate.

Simon Evans

Deputy Traffic Commissioner

for the North East of England

27 August 2021.