Decision

Decision for J A Rattigan & Son Ltd (OK0229029)

Published 30 December 2020

South Eastern and Metropolitan Traffic Area

Decision of the Deputy Traffic Commissioner

Public Inquiry heard at Ivy House, Ivy Terrace, Eastbourne on 14 December 2020

1. Background

The operator J A Rattigan & Son Limited is the holder of a standard national licence authorising sixteen vehicles granted on the 15 December 1998.The sole director of the company is John Anthony Rattigan and the transport manager is John Rattigan (son of John Anthony Rattigan). John Rattigan was appointed as transport manager on the 27 June 2016.

The operator attended a public inquiry on the 25 August 2011 following unsatisfactory maintenance inspections when a variation application was granted and an undertaking for random checks on driver walk round procedures was agreed. A warning letter was issued on the 22 October 2014 in relation to prohibitions and a poor annual test rate. A further public inquiry on the 17 May 2016 resulted in curtailment from 16 to 10 vehicles for 6 weeks and an additional undertaking for rolling road brake tests to be carried out four times per annum.

On 28 March 2019 an authorised vehicle was stopped, and it was found that the HGV levy for that vehicle had not been paid. It was also revealed that the driver had been keeping a log of his activity under “domestic hours,” but those logs had not been checked and signed by a competent person. These failures resulted in fines totalling £5600 being imposed at Guildford Magistrates’ Court on the 14 October 2019.

A follow up visit was made by Traffic Examiner Lowe on the 9 May 2019 when a variety of failings in relation to the monitoring and recording of drivers’ hours were found. As a result, the outcome of the investigation was marked as unsatisfactory. The operator responded to the findings and undertook to make several changes to practice to remedy the deficiencies. As a result of the background and the findings of the investigation it was decided to call the operator and transport manager to public inquiry with an initial hearing set for the 5 May 2020. As a result of the Covid pandemic restrictions that hearing was adjourned, and the case was relisted for the 14 December 2020.

A desk-based assessment was undertaken by the DSVA in 2020 and the relevant form and accompanying documents were returned, signed by John Rattigan as transport manager on the 31 July 2020. An analysis of the information provided highlighted several continuing concerns and these were set out in a letter sent by e mail on the 1 October 2020. No response was forthcoming from the operator in relation to those concerns.

The call up letter for the inquiry asked the operator to submit sample data for driver’s hours compliance for five vehicles and five drivers. This documentation was sent to Traffic Examiner Lowe who analysed the content and submitted a supplementary report in advance of the inquiry.

The operator submitted representations and additional documentation through Ms Bastian of C E Transport Law Limited for my consideration. An application was also made for a new transport manager Noel Finn to be approved.

2. The Public Inquiry

The operator was represented by Ms Bastian. The director John Anthony Rattigan and transport manager John Rattigan attended, together with the proposed transport manager Noel Finn. The hearing was conducted through a video link with Traffic Examiner Lowe also attending via that medium.

3. Evidence

Traffic Examiner Lowe confirmed the contents of his original report dated 9 December 2019 and said that the response from the operator would have dealt with his concerns if the proposals had been implemented. His recent analysis showed that this was not the case in some areas. He detailed the findings of his most recent analysis and Mr Finn said what he was intending to do to ensure the concerns were negated.

Ms Bastian said that the e mail containing the findings from the desk-based assessment had not been received by the operator and this was the reason why no response was forthcoming. The representations made in advance of the inquiry contained the responses to the concerns and I went through these in detail. It was accepted by the operator that the findings of the assessment had been valid. John Anthony Rattigan and John Rattigan said that they had relied on a former employee, Shane Hyland to undertake the transport manager functions. On enquiry from me it was confirmed that Mr Hyland had not been the appointed transport manager as this had been John Rattigan during the whole period. Mr Hyland had held a post of assistant transport manager and the assessment form had been completed by him but signed in John Rattigan’s name when returned to the DVSA.

It was stated that failings in the systems as identified in the assessment and by Traffic Examiner Lowe were being addressed by Mr Finn who had been in post since the 5 September 2020. It was accepted that several of the improvements had only been made since he took up his post.

John Rattigan accepted that he should have been more diligent in his role as transport manager and that he should not have just relied on Mr Hyland. Mr Rattigan had diverted his attention to “the plant section” of the business and had assumed, wrongly that the transport side was being managed effectively.

Ms Bastian referred me to the written representations and the impact of regulatory action was explained. Ms Bastian submitted that John Rattigan should be allowed to keep his repute although he was stepping down as transport manager with Mr Finn taking his place.

4. Findings and Decision

There have been breaches of Sections 26 (1) (b) (c) and (f) of the Goods Vehicles Act, 1995 in this case. What is particularly concerning is the fact that the negative features identified by Traffic Examiner Lowe were present despite the chances that were given at the previous public inquiries. This factor is compounded by the continuation of those negative findings as shown in the desk-based assessment and in the most recent report prepared by Mr Lowe. The representations submitted on behalf of the operator set out the negative aspects of the case and I adopt this list.

In deciding what regulatory action to take I need to weigh any positive features with the negatives, and I accept that the operator has now made efforts to make improvements. The addition of Mr Finn is a very significant factor in that he has started to make the improvements required and introduce systems that should maintain those improvements. If he had not been recruited, I would have struggled to find that the future compliance is likely. I also accept that the failings were mainly “system deficiencies” and there does not appear to have been any failings which directly compromised road safety or fair competition. However, in my experience it is often the case that a failure to make proper checks on compliance by drivers can quickly lead to escalation to a point where road safety in particular is at risk.

In accordance with the guidance given by the Senior Traffic Commissioner in Statutory Document 10 I need to consider the level of seriousness in this case and I have concluded that it is in the serious category. I am prepared to allow this licence to continue as I believe, with the addition of Mr Finn, it is more likely than not that compliance can be achieved and maintained.

Bearing in mind the seriousness of the case I find that proportionate regulatory action is to curtail the licence to six vehicles for January 2021 with the details of the vehicles to be curtailed notified to the Office of the Traffic Commissioner by the 23 December 2020. I believe this is a proportionate response in that it will allow emergency work to be undertaken by the operator but will nevertheless impact sufficiently to be a tangible sanction reminding the operator that compliance must be maintained going forward. The operator is warned that any further inquiries are likely to result in more serious action including possible revocation.

I have decided that is appropriate to order that John Rattigan is no longer suitable as a transport manager and his repute is lost in this regard. He accepts that he delegated his functions to a member of staff, clearly did not check properly on the actions of that individual and even allowed his name to be shown on the desk-based assessment return which he had not checked. He seems to have allowed the situation to drift to a point where he was transport manager in name only. Having found that Mr Rattigan has lost his repute I am obliged to order that he is disqualified from acting as a transport manager and I do so for an indefinite period. If he decides to apply to regain his repute in the future, he will need to demonstrate that he is up to date in the knowledge required and that he is able to commit fully to the role.

I approve the appointment of Noel Finn as transport manager. His attitude and knowledge demonstrated at the inquiry was impressive. I expect him to be given the full support of the operator across the range of his responsibilities.

An undertaking was offered for a compliance audit not less than five and not more than six months from the date of inquiry and I accept this undertaking accordingly. A copy of the audit and the response of the operator to any recommendations should be sent to the Office of the Traffic Commissioner within 14 days of receipt. I will ask to see this and if there are significant deficiencies will consider calling the operator back to another inquiry.

John Baker

Deputy Traffic Commissioner

15 December 2020