Decision

Decision for Highway Transport MCR Ltd and Angela Murray

Published 18 October 2024

0.1   IN THE NORTH WEST OF ENGLAND TRAFFIC AREA

1. DECISION OF THE DEPUTY TRAFFIC COMMISSIONER

2. HIGHWAY TRANSPORT MCR Ltd  OC2053287

3. TRANSPORT MANAGER ANGELA MURRAY

4. Public Inquiry held at Golborne on 25 September 2024

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

5. Introduction

Highway Transport MCR Ltd (“the operator”) has held a standard national goods vehicle operators’ licence OC2053287 authorising the use of 2 vehicles since 15 May 2022. There is currently 1 vehicle in possession. The licence does not authorise the operation of trailers.

The current sole director of the operator is Yosef Kaye who was appointed in March 2023.

The sole director and person with significant control of the company at the time the licence was granted was Ivor Ross. He resigned on 17 March 2023 when Mr Kaye was appointed. Mr Ross was then re-appointed as a director on 21 March 2023 until he was removed on 31 May 2023. The Companies House register also records that Mr Ross was then re-appointed as a director on 5 June 2024 before being removed a day later on 6 June 2023. The initial change of director on 17 March 2023 was notified to the  Office of the Traffic Commissioner (“OTC”) but the subsequent reappointments of Mr Ross as director (nor his removal) were not notified as required.

The Transport Manager (“TM”) named on the licence is Angela Murray. She has been in post on an external basis since October 2023.

In November 2022, it was proposed to revoke the licence as the operator had failed to respond to correspondence about the appointment of a new Transport Manager from OTC. No further action was taken at the time after the operator belatedly provided the information requested.

On 22 January 2024, an immediate Prohibition Notice was issued to the operator’s vehicle GJ17RYZ at a roadside encounter. It was being driven at the time by Mr Kaye. This DVSA Examiner found that one of the vehicle’s mandatory mirrors was defective as its glass was missing and there was no close proximity mirror present. The operator subsequently claimed that the mirror had been damaged the same day and Mr Kaye was driving to obtain a replacement at the time of the encounter.

This encounter prompted the DVSA to further investigate the operator’s compliance and it was asked to co-operate with a remote desk-based assessment (“DBA”). The DBA report dated 11 March 2024, reached unsatisfactory findings.  There were 6 specific sections of the report marked as unsatisfactory with significant concerns raised about the recording of defects, frequency of inspections and brake testing and record keeping in general.

The DBA also concluded that the evidence of the Transport Manager’s control of the licence was Unsatisfactory. Neither the operator nor TM Murray responded to the DBA report.

The DBA report was drawn to the attention of the Traffic Commissioner and the extent of the findings were such that a proposal to revoke the licence was issued on 13 June 2024.

The operator responded by requesting that this Public Inquiry be held. Mr Kaye claimed he had been let down by his maintenance provider and previous transport managers and inferred that he intended to replace TM Murray. He accepted the findings of the report and blamed his lack of knowledge as a new entrant to the industry. He provided evidence that he had booked to attend an operator licence awareness training course in July 2023 and provided details of a contract with a new maintenance provider (the details of the maintenance provider have not been changed on the licensing system). It was also suggested the operating centre was to change but to date no formal application has been received. Some documentary evidence was supplied to show the claimed changes that had been made.

As the operator had requested a Public Inquiry and its response was not considered to offer sufficient evidence of reassurance, this Hearing was called to further consider if regulatory action is required.

Neither the operator, its director nor TM Murray had been called to a Public Inquiry previously.

6. The Call to Public Inquiry

The operator was called up to Public Inquiry by letter dated 8 August 2024. The letter was sent by post to the correspondence address provided by the operator on the licence record. This is the same address that the operator gave in its letter dated 2 July 2024 requesting that the Public Inquiry should be called.

The call-up letter gave notice that the grounds for regulatory action in Sections 26(1)(b). 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 statutory requirements to be of good repute, hold professional competence and to have financial standing. The letter also gave notice that the provisions for disqualification in Section 28 of the Act would be considered.

Transport Manager Murray was called up by letter also dated 8 August 2024 that gave notice of consideration of the requirement of good repute and professional competence in Schedule 3 of the Act. The letter was sent to the address that Ms Murray provided for correspondence when she submitted her application to be appointed as Transport Manager on the licence in October 2023.

Both letters contained case management directions for the provision of evidence before the Hearing. Neither the operator nor TM Murray have complied with the directions.

7. The Public Inquiry

The Public Inquiry was heard at Golborne today. Neither Mr Kaye nor TM Murray were present. Neither provided any explanation for their absence. The operator was not otherwise represented.

I have considered Paragraph 5(7) of Schedule 4 of the Goods Vehicle (Licensing of Operators) regulations 1995 and the guidance in the Senior Traffic Commissioner’s Statutory Document Number 9: Case Management. I am satisfied that proper notice of the Hearing has been given to the operator and TM Murray and that they have been given a fair opportunity to attend or otherwise respond to the call to Public Inquiry.

I am satisfied that postal service of the call-up letters has been effective. The letter to the operator and the letter to TM Murray were correctly addressed to the respective correspondence addresses each had previously provided my office. In the absence of any evidence that the letters were not delivered as required, I apply the presumption that there was effective service of the letters informing the operator and TM Murray of today’s date. I also take account of the Upper Tribunal’s guidance in Philip Drake [2023] UKUT 98 (AAC) in relation to the use of addresses provided by an operator, namely, “As we see it, once such an address has been given, it is for the holder of a licence to ensure correspondence relating to the licence and sent by the OTC may be properly received.”

Notice of the Public Inquiry has been properly published as required.

I also taken note that the operator previously acknowledged receipt of the proposal to revoke the licence and expressly requested that the Public Inquiry was called. It was therefore clearly on notice that such a Hearing was to be arranged and I would have expected it to have made inquiries with my office, if it had not received information about the date of the Hearing.

In the absence of any evidence to the contrary, I find that the operator and TM Murray have deliberately absented themselves from the Hearing without good reason. I consider that it is appropriate to proceed to a determination of the Public Inquiry in their absence.

8. Decision

8.1 Highway Transport MCR Ltd OC2053287

In the absence of the operator and TM Murray, I have reached the findings below based on the evidence contained in the Brief.

I make the following specific findings of fact:

• The operator has failed to formally record on the licence record that its maintenance provider had changed from HTF Commercials to M66 Car & Commercial. This is a breach of a condition on the licence and satisfies the ground for regulatory action in Section 26(1)(b) of the Act;
• The operator was issued with an immediate and “S” marked prohibition on 22 January 2024. That satisfies the ground for regulatory action in Section 26(1)(c)(iii) of the Act;
• The desk-based assessment found evidence that vehicles had been inspected well outside the declared 10 week interval. As stated above, there was also evidence that HTF Commercials had ceased to complete vehicle inspections despite remaining declared on the licence record. Both of these matters result in a finding that the operator has failed to fulfil statements made when applying for the licence. This satisfies the ground for regulatory action in Section 26(1)(e) of the Act;
• The prohibition and the contents of the DBA provide clear evidence that the operator has failed to keep its vehicles fit and serviceable. It is evident that records of vehicle maintenance have not been kept for 15 months and that there is no effective system for driver defect reporting. These matters all represent a failure to honour undertakings the operator signed up to when you applied for your licence. I find this satisfies the ground for regulatory action in Section 26(1)(f) of the Act;
• The findings above, combined with the operator’s failure to comply with the case management directions to attend the Public Inquiry or respond to the call- up, leads to my finding that there has been a material change as to its good repute. The failure to produce evidence of finances contrary to the express direction made in the call-up letter, also leads me to conclude there has been a material change as to financial standing. These findings satisfy the ground for regulatory action in Section 26(1)(h) of the Act.

The cumulative effect of the findings above taken with the operator’s failure to comply with the case management directions and attend the Public Inquiry today or indeed to cooperate with the traffic commissioner’s inquiry in any other way is that I conclude that the operator can no longer be considered to meet the requirement of good repute.

I have not been provided with any evidence the operator’s financial position despite a case management direction to produce such evidence prior to the Hearing. That direction was made because of the concern that the compliance issues recorded might be attributable (at least in part) to a lack of sufficient financial resources.  In the absence of any evidence of financial resources, I find it is more likely than not that the operator no longer meets the requirement of financial standing.

These two further findings consequently lead to a determination that the grounds for revocation in Section 27(1)(a) of the Act are satisfied.

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.

Without evidence from the operator, there are few positive features that I can identify. The response to the proposal to revoke did contain some assurances that the operator had identified areas for improvement and had taken some steps to address those.  However the evidence of improvement was limited and without hearing from the operator today, it is impossible to assess how successful those changes have been.

On the other hand, I identify the following negative features:

• The use of the vehicle on 22 January 2024 (driven by the director Mr Kaye) when there was no mandatory mirror present was a reckless act by operator that led to an undue risk to road safety;
• Road safety critical defects on any vehicle or trailer in service and the “S” marked prohibition. The prohibition is also aggravated by the fact that this was not notified to the traffic commissioner within 28 days;
• Ineffective management control and insufficient or no systems and procedures in place to prevent operator licence compliance failings;
• The failure to produce evidence of any changes made to ensure future compliance;
• The operator failed to co-operate with the enforcement investigation by failing to produce all the maintenance records requested;
• The operator has failed to demonstrate an improvement in compliance and cooperation with OTC despite twice being issued with proposals to revoke the licence in the last 2 years.

The negative features far outweigh the positive features, and I am satisfied that this is a case that falls in the category of “severe” for the purposes of assessing the starting point for regulatory action.

I have gone on to consider the Priority Freight and Bryan Haulage questions.

In relation to the first, I do not have any confidence that the operator in the control of Mr Kaye can be trusted to be compliant in future. Mr Kaye has failed to fully co-operate with the Public Inquiry process. He was properly informed that the evidence presented to the Traffic Commissioner was of such concern that it was proposed to revoke the licence. He was given the opportunity to request and attend the Public Inquiry so that he could give evidence that revocation was not required. He has failed to take that opportunity. Without hearing from Mr Kaye, I cannot have any confidence that the operator under his control will be compliant in future.

I have then considered the Bryan Haulage question of whether the company deserves to be put out of business. The extent of the failings in this case and my unanswered concerns about the operator’s ability to manage a safe and compliant operation are such that I am satisfied it is proportionate to direct the revocation of the licence.

Turning to the question of disqualification, as the operator has only a single director in Mr Kaye, I consider it is appropriate to approach the issue as one for both the company and its individual director.

I have applied a balancing exercise, and the features identified above in relation to regulatory action are equally pertinent to the question of disqualification. The negative features outweigh the positives, and I consider a period of disqualification is justified.

In deciding upon the length of the disqualification, I have taken account of paragraph 107 of the Senior Traffic Commissioner’s Statutory Document Number 10 which states that for an operator’s first Public Inquiry, consideration of a disqualification period of between 1 and 3 years may be appropriate. The guidance adds, “Serious cases …may merit disqualification of between 5 to 10 years or in certain cases for an indefinite period.”

This is indeed a serious case, but I have balanced this with the fact it is the first Public Inquiry for the operator and director. I do not exclude the possibility of rehabilitation and a future application for an operator’s licence being allowed.

I would add that the first step in any rehabilitation process is a full acknowledgement of the extent of past misconduct and acceptance of responsibility.

I consider that a period of disqualification is necessary for Mr Kaye to reflect on the events that led to the loss of the licence and to seek further education on how to run a compliant operation. Any future application would also be strengthened by evidence that he had sought independent advice and support from a specialist source such a transport consultant. I would also wish to see evidence of attendance at an operator licence awareness training course provided by a recognised organisation.

After careful consideration, I have determined that the period of disqualification for the operator and its director can be limited to 12 months. Any return to holding an operator’s licence after that time would need to be supported by evidence of the steps, I have set out above.

I defer the effective date of the revocation and disqualification orders for 28 days to allow proper notice to be given and for the operator to make arrangements for the orderly wind down of the business.

8.2 Transport Manager Angela Murray

I find that the fact of the prohibition and the contents of the DBA demonstrate that Angela Murray has failed to exercise the required degree of continuous and effective management of the licence during her tenure as transport manager.

I have reminded myself of the directions on the general responsibilities of Transport Managers set out in the Senior Traffic Commissioner’s Statutory document no. 3. These include:

• “to manage, audit and review compliance systems to ensure that they are effective.
• to review any shortcomings such as prohibitions and/or annual test failures.
• to ensure that vehicles are kept in a fit and roadworthy condition.
• to ensure that reported defects are either recorded in writing or in a format which is readily accessible and repaired promptly.
• to ensure that safety inspections and other statutory testing are carried out within the notified O-licence maintenance intervals.
• to ensure that drivers are completing and returning their driver defect reporting sheets and that defects are recorded correctly.”

I found only very limited evidence that Ms Murray had fulfilled any of those responsibilities and clearly, she did not act effectively so as to prevent a failure to comply with the requirements of the operator’s licence.

The findings above combined with Ms Murray’s failure to attend the Public Inquiry or otherwise engage with the Traffic Commissioner’s proceedings lead me to a finding that she has lost her good repute.

In considering, Ms Murray’s position as Transport Manager I have undertaken the same balancing exercise as for the operator and conclude that in this respect also the negatives far outweigh any positive features. Whilst there is some evidence from the DBA that Ms Murray had attended a CPC refresher course in 2022, the other findings of the assessment suggest she has done little to effectively apply any learning taken from that course. Without hearing from Ms Murray, I cannot be confident she is capable of effectively managing a transport operation in a compliant manner in future.

I have undertaken the same balancing exercise and in deciding upon the length of the disqualification, I have taken account of the guidance in paragraph 108 of the Senior Traffic Commissioner’s Statutory Document Number 10 which notes that the minimum period of 12 months applies to a Transport Manager.

I do not consider that there are any significant aggravating features here that mean a disqualification of longer than 12 months is necessary or proportionate in the circumstances here. Such a minimum period will allow Ms Murray to reflect on the circumstances that have led to this decision and to allow her to consider steps to demonstrate her rehabilitation should she wish to seek appointment as a transport manager in future.

I defer the start of the disqualification to allow Ms Murray one final opportunity to request a Hearing or make representations, including submissions on the length of the disqualification.

Gerallt Evans

Deputy Traffic Commissioner

25 September 2024