Decision

Decision for J.Oakes & Son Skip Hire Ltd

Published 17 June 2022

1. J.OAKES & SON SKIP HIRE LTD: OH2032842, OF2024931

2. PUBLIC INQUIRY IN BRISTOL

2.1 8 SEPTEMBER 2021

3. BACKGROUND

J.Oakes & Son Skip Hire Ltd is the holder of a restricted goods vehicle operator’s licence in the Eastern Traffic Area authorising the use of one vehicle from a site in Rowley Lane, Slough. The sole director is Joshua Oakes. The operator has vacated this site and moved to Langley which is in the Western Traffic Area hence the new application which was submitted on 8 May 2020. Interim authority was granted on 22 October 2020 regularising the use of the new site. The application seeks authority for three vehicles.

During the course of the application, I received three separate notifications from Thames Valley Police. I consider them in detail later in my decision. In summary, the events are as follows:

• On 13 May 2020, Mr Oakes was encountered and subsequently convicted of failing to use a tachograph and obstructing a police officer; Mr Oakes had previously, in 2018, received a fixed penalty notice for driving without a driver card.

• On 30 June 2020, officers intervened in an altercation between Mr Oakes, who was driving his skip lorry, and a motorist. Mr Oakes was subsequently convicted of offences under Sections 4 & 5 of the Public Order Act 1986.

• On 7 May 2021, an unladen skip lorry belonging to the operator and driven by Jake Butler struck a railway bridge. The force of the impact caused the vehicle to mount the pavement and strike a pedestrian. The vehicle tachograph was not recording at the time.

Only the first of these was known to me at the time the application was referred but it was enough for me to determine that both the existing licence and the new application be called to public inquiry. Both Joshua Oakes and Jake Butler were also called in relation to their vocational driving entitlement.

4. THE PUBLIC INQUIRY

Mr Joshua Oakes and Danielle MacDonald attended for the operator represented by Carolyn Evans, solicitor. Ms Evans provided detailed representations in advance for which I am grateful. Mr Oakes and Mr Butler also attended in relation to their vocational entitlements. Also present was transport consultant Dallas Huntley.

Proceedings were recorded and a transcript can be produced as required. I do not record all the evidence here, only that which is necessary to come to a decision.

Finances were reliant upon two large deposits. I was satisfied that one was money that had been received from customers in cash. The second was a loan without supporting loan agreement.

5. Opening submissions

Ms Evans started by setting out the background. Three vehicles were specified including one brand new vehicle and two older vehicles which were due to be renewed. Two were skip lorries, the third a grab. Mr Oakes accepted that he was facing action against his vocational entitlement. He hoped to have it back by March 2022 when one of the new vehicles was due for delivery.

In relation to the first incident, Mr Oakes was driving GN08KUW when police caused him to stop. He wasn’t using his driver card. There were a significant number of other days when the vehicle had been driven without a card. Mr Oakes denied at the time knowing who had been the driver, but now accepts that it was him. He had removed the vehicle to his operating centre nearby when instructed not to by the police. One of the officer’s control cards was still in the vehicle.

The second incident came about when a car pulled in front of him causing him to stop. Mr Oakes got out of his truck and remonstrated with the driver of the car. He was convicted of a racially-aggravated public order offence, the racial aspect arising from Mr Oakes’ reference to the other driver’s apparent Polish origin. Mr Oakes said that the incident reminded him of a similar one several years earlier in which one of his friends had been killed.

In relation to the bridge strike, the only issue of contention was that PC Barden found that Mr Butler’s driver card had been removed. That was not accepted and the operator believed there to be a defect on the tachograph. PC Barden could not find a sensor fault. Mr Butler had a record on his phone of a tachograph error that morning. Further supporting evidence of the sensor fault was in the operator’s bundle. Also, on this occasion, the vehicle was not displaying a disc. There was evidence in the bundle that the transport consultant had been given the details of the vehicle to specify. Mr Oakes had not queried the lack of the disc because he thought that was because he only had interim authority.

6. Driver Jake Butler

The bridge strike incident was an isolated one. Mr Butler told me that he had attended the operating centre at about 6:45, got the keys and put his card in the tachograph. He saw the error message and took a photograph of it to show Mr Oakes. Mr Oakes told him to take a printout but it was lost in the crash. His card was in all morning. He had done a few jobs that morning and been back to the yard a few times. He had just dropped an empty skip and was on his way to collect another one. The bridge was just two minutes from the operating centre and he had been under it hundreds of times. The arms of the skip lorry are lowered using two separate levers. He thought he had brought them both down. He saw that one was fully down and assumed the other was as well. It wasn’t.

The pedestrian suffered cuts and bruises. He stayed with her until others turned up to assist. The police were there in 10 minutes. An ambulance attended. He was convicted of driving without due care, fined and given 9 penalty points. I suspended Mr Butler’s entitlement for 4 weeks with immediate effect.

7. The evidence of Joshua Oakes

Mr Oakes told me that he usually drove the grab lorry. He had around 150 skips and needed the two skip lorries when it got busy. The work was a mix of residential and commercial. His customers were tradesmen of a wide range. All work was within 20 miles from base. He and Jake both did about ten jobs a day. Danielle booked the work in usually from a phone call. The business did only skip hire and grab hire. The waste was taken to licensed waste-transfer facilities of his choice. The company owned the waste once it was in the skip. No processing of the waste was undertaken. Most of his time was spent other than driving. He drove on three days a week and a little driving on other days. When driving the grab lorry, about half the time was spent loading and unloading. I indicated that the description of the activities seemed to suggest that a standard national licence was required.

Mr Oakes told me that, on 13 May 2020, he had a valid CPC but was not carrying it. His tachograph card was not in the head. He had indicated at the time that he didn’t know who had been driving the vehicle without a card on other days, suggesting it may have been someone else. He now accepted it was him. He had been stuck on the side of the road for a long time. Local police had stopped him and then called PC Barden from the commercial vehicle unit. PC Barden had said he could get another driver to collect the lorry. He made those arrangements and then PC Barden told him that he couldn’t take it away. Mr Oakes told me that he “got a little bit uptight, maybe I shouldn’t have and drove the lorry away”. The police called him and came to see him at the operating centre. He now realised “hundred percent” that he shouldn’t have left.

The card was now in all the time. He had used a transport consultancy, RTC, and he believed they had led him in the wrong manner and that the consultant wasn’t doing his job properly. He had now changed consultants.

Mr Oakes understood that, as the director, he should lead by example. If he was ever in the same situation again, he would listen to everything they had to say and comply. I asked why he had been stopped in the first place. Mr Oakes told me that there was a marker on the lorry due to a tachograph offence in 2018.

In relation to the second conviction six weeks later, he had just turned left. He was loaded. A guy in a C-Max was flashing him. He then overtook him on the wrong side of the road and slammed on the brakes. The incident brought back memories from a serious crash some years earlier. Mr Oakes had punched the windscreen because he was frustrated that the plain clothes police officers thought he was in the wrong when he wasn’t. He couldn’t understand why he was getting the wrong end of the stick. Maybe he shouldn’t have shouted at him but that was all he had done.

Mr Oakes accepted that he was guilty of shouting at the guy. He should have stayed in the lorry and rung the police for assistance. The police were there but they gave the assistance to the wrong person that day. He accepted that he was a professional driver but hadn’t acted professionally on that day. He was in stressed times. That wasn’t his usual character. If it happened again, he would leave the window up and ring for assistance. Lockdown had been very uncertain times. There had been no further issues in the last twelve months.

Loss of his driving licence will affect the business financially. He will have to pay a driver. The business had now changed. That was the past and it wasn’t the image that he wanted for the company. He was 29 and wanted the business to grow. He had now put policies in to place. The “tackle was upgraded massively”.

Three vehicles were specified. The new vehicle was on R&M with DAF for 36 months. The older vehicles were with Procters. The new vehicles in March would also be on R&M with DAF. Dallas Huntley had been engaged at the beginning of August. They had been getting into a bit of a mess with RTC – things weren’t working properly.

Mr Oakes was content to apply for a standard licence. He knew a transport manager – his brother. Danielle would also sit the transport manager qualification. He would undertake to have an audit in 6 months’ time.

I asked Mr Oakes what he had done to manage his anger issues. He thought he had a course booked but hadn’t. He had got angry because of the overtaking manoeuvre. He was not naturally an “angry” person.

The new vehicle had been due in March 2021, ordered September 2020. It turned up in June due to Covid delays. Two more had been ordered but there was no financial commitment at this stage. The grab had been ordered last September but there were long delays.

Having authority for one vehicle would not generate enough turnover. The business wouldn’t survive. Two vehicles would be a big struggle.

8. Closing submissions

Ms Evans submitted that this was a finely balanced case, one which was very difficult to determine. On the one hand, there are two convictions directly relevant and in close succession. On the other is an ambitious 29-year old starting to grow his business. Mr Oakes expects to lose his entitlement to drive which will place the business under financial pressure. Mr Oakes recognises that any further issues could very well put the company out of business. He had acted properly by having a transport consultant involved and by changing transport consultant recently. Mr Huntley had put relevant policies and processes in to place and had provided training.

Exclusion from the industry at this stage would make re-entry very difficult. If the application is granted even in altered terms, he would remain regulated.

9. CONSIDERATION AND FINDINGS OF FACT

The sole director has two sets of convictions in quick succession in mid-2020. The first of these was essentially related to not using a tachograph card. This appears to mirror circumstances in 2018 when a £300 fixed penalty notice was issued for not using his card. That is the first aggravating feature of the events of 13 May 2020. There are more. Mr Oakes denied that the driving without a card on previous days was his when it was. Such lying to a police officer goes to the heart of the trust that must exist between operators and their regulator. Mr Oakes wasn’t carrying his driver qualification card as he is required to by law. There are times when such an issue, committed by the director, might generate a referral in its own right. Against the backdrop of what happened on 13 May 2020, it appears almost trivial because Mr Oakes ended the encounter by driving his vehicle away against a police instruction to stop. So this is a very serious event. Mr Oakes does, however, exhibit some contrition in relation to that day.

The event of 30 June predominantly affects Mr Oakes’ fitness to hold a driving licence but is relevant poor conduct in relation to his fitness to hold a goods vehicle operator’s licence. As he acknowledged in evidence, a director is expected to lead by example. The circumstances which led to the Ford C-Max braking heavily in front of him are not known. Mr Oakes told me there had been nothing to cause the other driver to act as he did but it would seem unusual behaviour. I have no evidence either way. What I have is Mr Oakes leaving his cab to have an altercation with another driver. That the two off-duty police officers found the need to intervene suggests that they felt physical violence was close. They describe Mr Oakes as “very aggressive” and he is later convicted of two public order offences. I have to consider whether it would be safe, for example, for an enforcement officer to visit his premises alone or encounter him at the roadside. Mr Oakes demonstrated no contrition whatsoever for these events and still feels wronged. That is unhelpful. Whatever caused the car to stop quickly in front of him, he lost control and that is down to him.

There are other negative features. The cause of the bridge strike appears to lie with the driver but it is concerning that Mr Oakes was aware that the tachograph was defective. It appears to have remained defective until the vehicle was sent to the calibration agent for the registration number to be changed nearly two months later. I temper the weight I attach to that, though, because the likelihood of serious drivers hours offending in this business is remote. There was use of an unauthorised operating centre during 2020 but again I temper the weight attached as the application was made and then delayed by the pandemic.

This is not an operation without its positive features. As a restricted operator, it has been supported by a transport consultant throughout. Improvements to systems and processes have been made. There is nothing in my review of recent compliance documentation that causes significant disquiet or cannot be quickly put right. Mr Oakes clearly has pride in his vehicles and they appear well-presented. The investment in a new vehicle is a very significant step and means that Mr Oakes has all the more to lose now.

Mr Oakes submits four character-references from acquaintances both personal and professional. All speak to his hard-working nature and good character. His account of having been involved in a fatal road traffic collision is verified. There has been a recent positive roadside encounter.

The licence in the Eastern Traffic Area clearly falls to be revoked as there is no longer an operating centre, a material change. The licence is revoked pursuant to Section 26(1)(h) and with immediate effect.

So I am left with an application for a new licence in the Western Traffic Area. There is interim authority. With a new application, the onus is on the applicant to demonstrate that the mandatory requirements are met. However, such an approach here would seem unfair. This is only a new application because Mr Oakes has fallen across county boundaries in moving his operating centre just a very small distance. It is therefore appropriate that I consider this as if it were an existing licence and apply the tests of whether or not this is an operator I can trust and whether or not it deserves to be put out of business. I am assisted by the Senior Traffic Commissioner’s Statutory Guidance Document No 10. It is only fair that I take in to account the impact on the business of regulatory action against the director’s vocational entitlement in a situation where he is one of only two drivers.

I now have in front of me an application to upgrade the licence to standard national. That is of significant assistance as it means that there is someone else in the business accountable for compliance with that as their priority. The nominated transport manager is the transport consultant Dallas Huntley and the application appears viable. I am offered undertakings for a compliance audit. I make my decision relying on the upgrade to be pursued and the undertaking to be offered.

Ms Evans, in my view rightly, submits that this is a case that falls within the “severe to serious” category. I consider the question of whether or not I can trust this operator to comply in the future. I find it difficult to answer that question with absolute clarity but I can say that this is an operator who I can trust to try to comply. Given that there is a clear intention to be compliant, it is not necessary to put the operator out of business.

Regulatory action, albeit through the guise of legislation relating to an application, clearly is appropriate given the circumstances of the two convictions and the repeated failure to use a driver card. Were this an existing licence, it would be appropriate to curtail it to two vehicles for some considerable time, noting that would cause significant inconvenience to the operator but not be fatal. I find that the operator has satisfactory arrangements only to manage the drivers hours compliance associated with two vehicles. All other mandatory criteria are met and the licence is granted in modified form for two vehicles only.

The convictions go directly to Mr Oakes’ fitness to hold a vocational driving entitlement. In normal times, it would warrant, as Ms Evans submits, revocation and disqualification for at least 6 months. However, I am aware that there are significant backlogs at DVLA. Checking now on 27 September, the .gov site shows that DVLA is processing renewal applications for disqualified drivers received on 15 July, nearly eleven weeks ago. I am therefore very wary of taking any action that may have unintended consequences so I will suspend rather than revoke the entitlement. I will also encourage Mr Oakes to take some action to address his apparent anger management issues. Pursuant to Section 115(1)(b) and Section 116 of the Road Traffic Act 1988, the vocational entitlement of Mr Joshua Oakes is suspended from 10 October 2021 for 6 months. Should Mr Oakes provide evidence of an assessment by a clinical psychologist registered at the Health & Care Professionals Council that shows that his anger is under control, the suspension will be reduced to 4 months.

10. DECISION

Pursuant to a finding under Section 26(1)(h), material change, licence OF2024931 is revoked with immediate effect.

Pursuant to Section 13C2 and Section 13 generally, application OH2032842 is granted in alternative form for 2 vehicles only.

Interim licence OH2032842 authorising the use of three vehicles terminates with effect from 10 October 2021.

The vocational entitlement of Joshua Oakes is suspended for 6 months. Should he provide appropriate evidence of action with respect to his apparent anger issues (see para 37), that can be reduced to 4 months.

The following undertaking is recorded:

An audit shall be conducted by a competent independent person by 8 March 2022. The scope of the audit shall include systems for the management of maintenance, driver licencing, drivers hours and working time and the role of the transport manager in line with the requirements of EU Regulation 1071/2009 and STC Guidance. The audit report will be prepared, acted upon and retained for at least 2 years. A copy of the report together with the operator’s plans for implementing any recommendations will be forwarded to the Office of the Traffic Commissioner by 22 March 2022.

Should the application to upgrade the licence not be pursued, I propose to revoke the licence due to fitness because the operation requires a standard national authority.

Kevin Rooney

Traffic Commissioner

27 September 2021