Decision

Decision for Joseph Vivian Casey & Partners, OF1039943 & as Transport Manager

Published 3 April 2023

0.1 In the Eastern Traffic Area

1. Written Decision of the Traffic Commissioner

1.1 Joseph Vivian Casey & Partners, OF1039943 & as Transport Manager

2. Background

Joseph Vivian Casey & Partners hold a Standard International Goods Vehicle Operator’s Licence authorising 2 vehicles and 2 trailers. The recorded partners are Joseph Vivian Casey, James Raymond Casey, and Michael Brendan Casey. Joseph Vivian Casey is also listed as the Transport Manager.

There is one Operating Centre at MC Tractors, Factory Bank, Ramsey, Huntingdon PE26 2RD. Preventative Maintenance Inspections are said to be carried out by BT & GM Dean Motors, and a Julien Jacklin (dated 1 November 2022) at 6-weekly intervals. He is an in-house technician. Reference was made in the operator’s response to Always Garage, which is no longer used.

A variation application was lodged on behalf of all the named partners but was withdrawn on 29 July 2022. During the processing it became apparent that one of the partners, Michael Casey, had passed on 2 January 2022. The remaining partners were advised of the options and an application was made to continue operating. Authority was granted under Regulation 31 of the Goods Vehicle (Licensing of Operators) Regulations 1995 to 1 July 2022. A new application (OF2056885) was lodged by Joseph Vivian Casey and James Raymond Casey on 23 May 2022, but that application was refused when no advert was supplied.

3. Hearing

The Public Inquiry was listed for 27 February 2023, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The partnership was present in the form of Joseph Vivian Casey and James Raymond Casey, represented by Darren Finnegan of Counsel, instructed by Beverley Bell. They were accompanied by Mark Horsman, a transport consultant, and Steve Mutton, the holder of a Certificate of Professional Competence, who has been nominated on a new application.

4. Issues

The public inquiry was called to consider whether I should intervene in respect of this licence and specifically by reference to the following sections of the Goods Vehicle (Licensing of Operators) Act:

• 26(1)(b) – conditions on licence to notify changes, in this case relating to maintenance, repute, financial standing and the presence of an effective Transport Manager

• 26(1)(c)(iii) – prohibitions (pages 90 to 101)

• 26(1)(ca) – fixed penalties

• 26(1)(e) – statements relating to conditions on the licence

• 26(1)(f) – undertakings (vehicle to be kept fit and serviceable, driver defect reporting, complete maintenance records, drivers’ hours and tachographs)

• 26(1)(h) – material change, including the expiry of authority under Regulation 31

• 27(1)(a) – repute, financial standing and a Transport Manager meeting Schedule 3

• 28 – Disqualification

Joseph Vivian Casey was called separately to consider his repute as Transport Manager, by reference to the statutory duty to exercise effective and continuous management – section 27(1)(b), Schedule 3 and section 58, and to consider whether I should make a direction in respect of his Certificate of Professional Competence.

The operator was directed to lodge evidence in support by 13 February 2023, including financial, maintenance and other compliance documentation. The financial evidence was more than sufficient to demonstrate the prescribed sum by way of three-month average.

5. Summary of Evidence

The variation application lodged on 4 January 2022 and seeking an increase in authority from 2 vehicles and 2 trailers to 4 vehicles and 2 trailers, prompted the Driver and Vehicle Standards Agency (DVSA) to commence a desk-based compliance assessment. That assessment was completed on 9 May 2022 (pages 59 to 76). The Case Summary highlights a number of the key areas, where compliance was judged to be unsatisfactory:

• No maintenance provider details were shown on any records

• Inspection facilities and maintenance arrangements were unsatisfactory: No evidence of a maintenance contract provided, and claims that systems are audited by an external consultant are unsupported by evidence

• The minimum brake testing requirement was not met

• Inspection and maintenance records are unsatisfactory. Inspection records were missing for one trailer, none of the inspection records for vehicle E642BNS were fully completed or compliant

• The wall chart forward planning system is not effective or correctly managed

• No evidence of a safety recall system provided

• Systems for monitoring vehicle emissions are unsatisfactory, no evidence to support procedures that should be in place to monitor fuel and Ad Blue usage

• Wheel and tyre management is unsatisfactory, as there is no evidence provided of arrangements that meet minimum standards

• Load security arrangements are unsatisfactory, as no evidence provided to support either arrangements claimed or training of drivers

• Driver defect reporting is unsatisfactory: ineffective paper-based system, that was being ineffectively managed. No evidence provided for systems claimed to be in place

The absence of records raised questions as to the effectiveness of the Transport Manager. There had been a suggestion that a consultant (apparently David Hillson) had been supporting the operators, but the Examiners saw no evidence of this. The Vehicle Examiner was also concerned as to which entity was operating. This appeared to arise from a reference to Directors. James Casey and Joseph Casey are listed as Directors of MC Tractors Ltd and maintenance contracts, trailer inspection records and invoices referred to MC Tractors Ltd. It was later established that MC Tractors Ltd had posted dormant accounts.

A copy of the completed assessment was provided to the partnership, but the surviving partners failed to response within the given timescale. Mrs Bell of Beverley Bell Consulting Ltd subsequently complained that DVSA had taken some time to contact her client but then only gave seven days for a response.

Mrs Bell provided representations in a letter dated 15 September 2022 (pages 77 to 80). Again, the Case Summary attempts to highlight the salient points raised:

• The partnership admitted that it failed to send inspection records for E642 BNS to DVSA and for the associated trailer

• The missing information had then been reviewed and the partnership confirmed that brake performance readings had not been recorded during safety inspections. Since the assessment they had invested £30,000 in a roller brake tester at its premises, which was installed in September 2022. It was stated that laden roller brake tests would now be carried out

• The partnership has now changed its maintenance provider and the records relating to the trailer have been submitted. The new contractor details were supplied

• At the time of the assessment the partnership relied on a paper driver defect reporting system. The partnership is now using the R2C system, which will allow all records and vehicle inspection safety inspections to be recorded in one place electronically, together with any expiry dates. The partnership did not fully understand the importance of a developed system to monitor safety recall. It now relies on the Gov.uk website monthly and a record is retained

• Mrs Bell asserts that the driver card data was provided to DVSA but confirms that the partnership did not provide the analysis or provide a breakdown of the drivers’ duties in minutes or distance. The partnership was not aware of the need to provide this information but relied on the OPTAC system for analysis. The partnership has now purchased equipment from Tachomaster and is in the process of implementing the new system, which will allow for more accurate records as well as analysis of Working Time Directive compliance

• Joseph Casey accepts that more needs to be done but asked for recognition of his efforts to rectify the issues from the desk-based assessment. The partnership intends to recruit a new Transport Manager and reference was made to a ‘solid candidate’ but there will be some time before he is nominated. The partnership hoped that implementing Tachomaster would allow for accurate records to be kept

• The partnership had commissioned a compliance review by a consultant and had also employed expert assistance from a qualified health and safety advisor. Reference was made to the attendance of Shane Tasker on a monthly basis, with reference made to his invoices

Mrs Bell concludes that her client is committed to improving compliance and implementing best practice in its operation by investing in new equipment. However, the Examiners remained concerned by the absence of systems for checking driver licences and qualifications, how drivers’ hours and working time training would be provided and noted the absence of evidence of Tachomaster analysis. The Vehicle Examiner noted that there was no additional information regarding the vehicle off-road arrangements and wheel and tyre security. Reference was made to another contractor, which had yet to be notified. The Examiners were critical of the failure to respond but acknowledged the notable improvements, although areas of concern remained.

Mrs Bell offered further comments in her letter of 21 November 2022 (pages 85 to 88). She was critical of the suggestion that the operator might provide evidence of the consultancy advice, but made the following points:

• The operators are aware of the need for a robust vehicle off-road system. Joseph Casey has confirmed that a vehicle placard will be placed for the relevant vehicle and that the new R2C maintenance system updated to reflect this. Any trailer will have the red airline connector locked off and the R2C system will ensure that the vehicle is not used

• Maintenance providers - the operator is waiting to gain access to OCRS to update the records on VOL

• The operator has been provided with a new wheel re-torque policy by Mrs Bell

• The operators were dealing with the after effects of the death of Mr Casey Snr. The operator consulted numerous consultants, especially a HR consultant who was then hospitalised

• Driver licences check- at the time the drivers gave the operator permission to for checks to be made on their licences. Mrs Bell has advised that permission does not need to be sought and checks will be incorporated on a quarterly basis

• Driver CPC- the operator will identify which drivers require periodic training before expiry of their current qualification and includes how many hours are required for each driver. Drivers will be registered on www.gov.uk/check-your-driver-cpc-periodic-training-hours and this information will be recorded and monitored internally

• The operator has been advised to complete a training matrix to record drivers’ hours and WTD

• Tachomaster has been implemented but it will take time to build up a picture of the overall compliance

A review was conducted by Beverley Bell Consulting Ltd on 9 September 2022. I am unclear why the Office of the Traffic Commissioner staff undertook to coordinate documents, which needed to go the DVSA for assessment.

I received a letter dated 21 February 2023 from Beverley Bell Consulting Ltd, enclosing witness statements from James Casey, Joseph Casey, and Mark Horsman. Reference is made to a new application, which was said to have been lodged with the Licensing Team of the Office of the Traffic Commissioner. From Joseph Casey’s statement, I gathered that the consultancy had been involved previously and in the preparation of the application for a new licence.

Joseph Casey refers to his position as transport manager and one of two partners in the business. He provides a short history of MC tractors. His father apparently started a company in 1986 in the Cambridge area, buying and selling tractors. He refers to a company but later confirms that this was operated as a partnership, consisting of his father, Michael, his brother James, and himself. That changed following the sad loss of his father in January 2022. He explains that MC Tractors is the trading name used by the partners for the transport activities. Shelton Motors was previously based in the operating centre which was purchased from Rocky Shelton about 18 years ago and they retained the e-mail address.MC Tractors Ltd incorporated in 2008 and has remained dormant. It is described as a backup.

In 1988 he moved with his mother and brother to the United Kingdom and he began working with his father’s business. He was responsible for cleaning and fixing tractors ready for sale. MC tractors obtained an operator’s licence around 1990 authorised for one vehicle. That was later replaced with an articulated vehicle. he suggests that the “transport aspect” if the business has stayed broadly the same and that they have never run more than two vehicles. He describes the mileage as low, on average 2187 miles per month but may venture as far as Doncaster or north London. However, a vehicle can be parked in the yard for most of the week and when they are operated they tend to be short days.

Joseph Casey refers to the decision to seek additional authority for four vehicles and two trailers in total. His reference to swapping lorries on and off the licence appeared to be inconsistent with his description of the level of work. He delegated Dave Hillson, a transport consultant, to respond to the desk-based assessment his main role was described as assisting the transport manager. I saw an invoice for “transport management fees” during the hearing. Mr Casey trusted him as he had worked as a transport manager and consultant “for most of his life”. His instructions were to contact Mr Casey or James, if he had any issues. Mr Casey accepts that this was not the correct approach and that he should have managed the process instead of viewing it as an administrative task. I was unclear just how he checked the accuracy of the response. In evidence he said that he just asked Mr Hillson if it was “going to be OK”, but the absence of scrutiny did not demonstrate concern at an unfamiliar process. It was Mr Hillson who dismissed the need to address the safety recall process, even though a 2016 plate vehicle had been added to the licence. James Casey’s statement confirmed that “things tended to happen a bit informally”. That was further illustrated in his evidence when it was suggested that he would never treat either current driver in a “disciplinary way”. Work allocation consisted of a chat with drivers expected to give feedback rather than a documented plan. This was attributed to a friendly atmosphere. Driver ‘Martynas’ was described as like a best friend.

Joseph Casey had no explanation as to why the inspection records for trailer C142978 were not provided as they were said to have been available (see below). His statement accepted that inspection and maintenance systems were not being properly managed. The mechanic, Julian, was left to consult the wall planner and organise vehicles for inspection. Mr Casey described keeping a “general eye” on the intervals only as vehicles were inspected late when Julian had other work. The vehicles receive brake tests at BT Dean. He was unable to explain why the contract was not provided but then referred to photographs demonstrating the testing facilities. There appeared to be very little evidence to support the assertion that the system was being monitored beyond the fact that repairs are an important part of the business model. That was borne out by the evidence at the Public Inquiry. A similar approach was demonstrated in the lack of monitoring of adblue usage, with a vague reference to invoices, as a response. There was no contract with KBS Tyres. It is located ¼ mile away. The retorquing was not recorded, despite James and Mr Casey claiming to pay particular attention to the tyres due to the low mileage.

He referred to the discrepancy in the driver defect reporting as a mistake and that ‘January’ should have been recorded as ‘February’. For understandable reasons it was accepted that the system had not been properly managed, drivers may have rectified a defect without recording it and he made no effort to manage any rectification. He describes the “mistaken assumption” that this was not required, despite the undertaking on the operators’ licence. I was asked to accept that the operators take load security seriously, due to the types of load carried and refers to the use of chains to secure vehicles and plant. He appeared to rely on the experience of the two drivers, Martynas and Arthurs and the level of remuneration, rather than employing a recognisable method statement. Even Mr Casey acknowledged that they had had to speak to the drivers on occasion. He referred to certification at the point of purchase of the chains and binders but no further checks.

Mr Casey referred to a further error in the failure to supply driver documentation. He claimed that the checks had been carried out every six months but again there was no record. Driver training was described as undertaken on an “informal basis” Then based on the belief the training was not a pressing issue. The description was of a reactive approach rather than any based on the actual operations.

It was said that the operator had been using exclusively analogue tachographs. Those had been retained but had not been analysed. James Casey referred to an informal process. He referred to the encounter on 8 August 2018 when Driver Mark Wagstaff was found to have exceeded the 4.5 hour driving limit. He was given a bit of a grilling by James. Driver Wagstaff then threw his card in the river and quit, but would have been dismissed, although there appeared to be no formal process in place. Driver Martynas was stopped on 27 October 2022, and it was found that the tachograph clock was 12 hours ahead. James Casey admitted fitting an isolator switch to protect the vehicle battery, cutting the power to the tachograph. It had not occurred to either partner that this indicated a failure in maintenance, driver reporting and fundamental management. The operators continued to describe the drivers as the best they could employ and yet the tachograph clock went unreported. Ironically, Mr Horsman identified the relationship with the drivers as being the weakest link when Counsel asked about future compliance. There appeared to be a level of complacency based on the known destinations, for instance Doncaster or Tilbury Docks. Mr Casey could not remember having dealt with any infringements or missing mileage. I was assured that driver worksheets are now supplied to Mr Horsman to include in the analysis.

Again, much was left to when Mr Hillson was visiting. He is described as going round with a downloader to take the cards belonging to both drivers and both partners. This of course only applied to the use of digital tachographs from 31 March 2022. Analogue charts were analysed by “simply looking at them”. Mr Casey appeared to rely on the low mileage and usual work patterns because infringement monitoring had not previously occurred to them. He took a similar approach to the working time directive, relying on the fact that the drivers are paid to work 45 hours per week. As he correctly stated this provides no excuse for the failure to manage the systems. Mr Horsman confirmed that there was an analogue scanner present, but the operators were unclear how it worked.

Mr Casey apparently attended a transport manager CPC refresher course in 2019. He accepted that “in some respects” he had not been exercising continuous and effective management but attributes this to the trust placed in Dave Hillson. He claimed that he was capable of running a compliant operation but seemed to attribute any shortcomings to mere paperwork. The statement sought to assure me that he appreciates the importance of quality assurance and management. However, the statement appeared to place considerable weight on the engagement of Mr Horsman, as a transport consultant. Mr Casey refers to his assistance and guidance in demonstrating potential improvements, my impression was that a number of the responsibilities continue to be delegated away. Mr Horsman confirmed that the monitoring of compliance was “disjointed”. Mr Casey accepted that compliance had been lax and that record keeping was poor. He stated that he had come to learn that evidence of compliance was important, but a number of issues remained even at the Public Inquiry. He described the new systems, in summary:

• The record has been updated to show that Preventative Maintenance Inspections will take place every six weeks but still in-house, checked by Mr Casey, Julian. the mechanic and Mr Horsman, the new consultant. A formal vehicle off road system has been adopted and documents will be properly managed. He also referred to check for recalls for the 16-plate DAF. He will now review policy in place for dealing with prohibitions, but Mr Casey suggests that a full investigation would be adopted. I note that Mr Horsman confirms this vehicle as having a digital unit

• Driver defect sheets are returned to a letterbox only workshop door. They are then collected by Julian and only referred to Mr Casey if any defects are identified. Any major defects will be attached to VOR documentation. The weighbridge operator, Callum, notes each vehicle as it leaves. This is cross referenced with defect reports to ensure that they have been completed. The drivers now use RHA duplicate defect sheets, although the operator was said to have been trialling the R2C system, with staff to be trained later this month

• Mr Casey refers to the investment in the workshop, which has a full set of axle lifters, a calibrated roller brake tester and a headlamp beam tester, together with other workshop tools. A photograph was produced

• A tyre management policy has now been adopted and a formal agreement made with KBS tyres, with a notice has been put up in the workshop advising on the age of tyres and Julian keeps an eye. The statement did not indicate how retorquing was recorded. In evidence it was confirmed that there was no proper log up to the point where Mrs Bell became involved

• The operators were said to have moved to the Tachomaster system, Using a scanner. This will generate infringement reports. Staff have been booked to attend training but that has been delayed. The operators are also exploring the possibility of using tachographs in other out of scope vehicles to make overall compliance easier. I was told during the Public Inquiry that recording had been extended to recovery work, although other work remained a concern. Again, the weighbridge was being used to cross reference against charts for the date, with checks done every Monday. Infringements are left to Mr Horsman to debrief. Tachomaster will also generate working time reports. Time sheets have apparently been changed to include more information and requiring the driver to record whether a tachograph has been used to record other work. The time sheets are submitted every Monday for either James, Mr Horsman, or Mr Casey to address

I was therefore interested to view the operator’s documentation. From my dip sampling of the maintenance records, I made the following observations:

5.1 AV06 GCF

• 17 January 2023 – inspection (7+ weeks since the previous) with brake test but: 46%, 38%, 17% and appeared to be underweight after an intermittent ABS fault and brake chamber work and an air leak. It also recorded that a chassis strap was missing, a crack and oil leak (again) were left to be monitored

• 28 November 2022 - inspection (8+ weeks since the previous) with brake test but: 36%, 33%, 15% (imbalance of 34% on axle 3) and appeared to be underweight. It referred to an oil leak but no discernible driver defect report

• 30 September 2022 - inspection with no brake test despite an ABS fault. That defect was not rectified. The tachograph was out of calibration. No discernible driver defect report. Mr Casey was unable to offer any explanation during his evidence

• 28 April 2022 – brake test: 50%, 37%, 16%

5.2 DS16 YOC – driver defect reports only produced from January 2023

• 20 December 2022 – inspection (9+ weeks before the hearing) with no brake test as no laden trailer available and 5600 km since the last test. It records slight wear in front cab mounts (again)

• 17 November 2022 – inspection (VOR 4 to 17 November 2022 to replace an emissions sensor) with brake test but: 26%, 10%, 5% and failed but written over with ‘driver error’. It records slight wear in front cab mounts (again). I had noted the absence of a DTp code on the brake test report. Mr Horsman told in evidence that the operator had experienced power and internet issues at the revamped maintenance facility. The results were therefore more likely to be attributable to a technical issue

• 7 September 2022 – Inspection with brake test: 52%, 35%, 16%. It records defective wiper blades, batter case loose and engine warnings

• 17 August 2022 – inspection (7+ weeks since the previous) with a brake test: 52%, 25%, 18%. It also records defective nearside lights, oil leak. It records that the tachograph calibration is out of date but only advised to take action

• 27 June 2022 – inspection (11 weeks from the previous) with brake test: 53%, 25%, 16% after brake pads worn to 35%. The record suggested the need to remove the wheels

• 11 April 2022 – inspection with brake test: 56%, 25%, 18%, but insufficient load on axle 2. It records a suzie fault and front axle brake discs and pads are low with 3 of 4 tyre treads low but only reported to the customer.

5.3 C142978 – only 3 inspections records produced:

• 18 January 2023 – inspection with brake test on 3 February 2023 (beyond the 7 days advocated in the Guide to Maintaining Roadworthiness) but: 38% and 16% and underweight. It records minor cracks in chassis (again) and tyres low. No discernible driver defect report

• 7 December 2022 – inspection with no brake check as no tractor available. It also records tyre treads to 4 mm and minor cracks in chassis (again). No discernible driver defect report

• 26 October 2022 – inspection with brake test, but: 22%, 9% and underweight. It also records marker light inoperative, loose bolts and minor cracks in chassis (no action) but no discernible driver defect report.

I saw a further three at the hearing from late 2021 to early 2022, again raising questions about the absence or effectiveness of brake testing and driver defect reporting. The failure to produce those records was blamed on David Hillson.

E642 BNS was described as Vehicle Off Road, but Mr Casey appeared to rely on invoices rather than a proper record.

In evidence from both operators I heard about the overhaul of the maintenance facilities. I was referred to photographs, which now form part of my papers. I also noted the considerable investment of £175,000, including a roller brake test facility. It is apparently a matter of pride to the operators that they are able to run vehicles of the current age. Again, I was supplied with photographs to illustrate the condition in which the vehicles are kept. I accepted that the age of the vehicles is not reflective of a reluctance to spend money, in fact it appears to involve greater expense. However, it does increase the importance of effective management. The evidence of the operators confirmed the lack of formal reporting or record keeping, but it was necessary to remind the operators that these shortcomings went beyond simple record keeping and went to the basic promises which were given to obtain the licence and without which they were in no position to claim that their operation is safe.

I was latterly referred to a contract with Mr Horsman, apparently for the provision of transport manager services. That is dated 21 September 2022, but was apparently provided to a member of Office of Traffic Commissioner staff on 9 December 2022. Email correspondence from Beverley Bell Consulting Ltd refers to an application with supporting TM1 form but the Certificate of Professional Competence for Joseph Casey. In evidence Mr Horsman confirmed that he had been retained as a transport consultant to review and update policies and procedures. He referred to the efforts to update the driver defect reporting system, which now includes Nil defect reporting, as outlined above. The system ensures that rectification will be recorded and any major works will result in the vehicle being declared off-road. Representations had referred to the move to the R2C system but the operators had re-evaluated that system and what they find easiest to use. Mr Horsman approved of this decision during his evidence and linked this to the issues with the internet at the facility. Both partners tend to be present in the morning from 7 am when the drivers start. The second technician, Vaughan, will also be present. It took some time to understand how driver defect reports are communicated. Drivers do not tend to leave until the Mr Jacklin is present, later in the morning. Nil defect reports are posted through the workshop letter box, but defects are reported directly to the partners or Mr Jacklin.

As Mr Horsman stated, things must change. He also described the operations as lax when he first commenced his duties. He described inspection planning as vague. In his words, there is still work to do but it is considerably better. By way of example, he referred to the colour coded wall planner, which will help all to see at a glance what action is required, without having to read the records. A dry-wipe board has also been employed to record anything current and is again visible to everyone. All the vehicle documentation is stored in coloured folders, which I did not have opportunity to view. He commenced in around October, shortly after the new maintenance facilities came on-line. He referred to the power and internet issues. He advised the operator to retain BT & GM Dean Motors as an alternative to Mr Jacklin and to use at every third inspection by way of counter check.

Joseph Casey’s statement referred to a new application. In his statement he expresses the hope that the new application can be granted with an undertaking for a further “compliance review” after six months. His statement refers to the reliance on Mick McKay to deal with the paperwork. In evidence I was told about the significant delegation to David Hillson. There was a delay in him lodging an application on-line, but it proved beyond the abilities of the consultant(s).

I have been advised that application, OF2056885, was refused. This prompted contact from Beverley Bell Consulting Ltd, at the beginning of August 2022. The applicant has confirmed the difficulty in using the self-service function. The applicant and another consultant had accessed the system to commence registering new application ID 1327078 in May 2022. The Licensing staff, referred to by Beverley Bell Consulting Ltd, advised that documentation be submitted, which might then be attached to the VOL record for the application (ID 1327078). The applicant was subsequently advised to submit the new application and payment details by post, so the application could be registered in the usual manner under the reference OF2063721. That application was received by a different team after the move to digital- by-default, as per published Government policy. The application was therefore returned to the applicant to proceed digitally, apparently without reference to the previous enquiries. There remained the facility for digital-assist but that was not pursued. It was clear that, whilst this case and the application were not assisted by the absence of a response to correspondence dated 6 September 2022, there had been some confusion arising from what had subsequently occurred. I was told that the operator did not recollect receipt of that letter. Mrs Crosby of the Office of the Traffic Commissioner had attempted to progress matters. I was led to believe that the application and supporting documents have now been submitted on VOL for assessment following any findings at this Public Inquiry.

The changes to date have resulted from Mr Horsman’s involvement, although the operators envisage work in the Republic of Ireland and the United Kingdom. I heard briefly from Steve Mutton, who is the holder of an International CPC. Mr Mutton expressed the opinion that he can work with Mr Horsman and that, despite knowing the operators for a number of decades, he would not expose his personal repute to criticism were he to be appointed. He attended a two-day Transport Manager CPC refresher course with Altta Group Ltd on 26-27 April 2021.

6. Determination

Based on the evidence above, I was satisfied that I should make adverse decisions under the following sections of the Act: 26(1)(b), namely a breach of the conditions to notify changes, in this case relating to maintenance, the partnership, and the presence of an effective Transport Manager; 26(1)(c)(iii) – prohibitions, 26(1)(ca) – fixed penalty, 26(1)(e) – statements relating to conditions on the licence, 26(1)(f) – undertakings (that vehicles and trailers be kept fit and serviceable, to employ effective written driver defect reporting, to ensure and retain complete maintenance records, to comply with drivers’ hours and tachograph requirements), 26(1)(h) – there having been a material change with no authority to now operate.

Both partners described the approach to compliance as too lax. Having heard the evidence, Mr Casey made the sensible decision to resign his position as Transport Manager. He described issues with time management, but the systems themselves suggested something more fundamental. He told me that he was working 15 hours per day for 6 days a week but as he accurately suggested, he had not been very good at the Transport Manager role. I advised Mr Casey that any subsequent proposal to nominate him as a Transport Manager would need to be referred to a Traffic Commissioner as I was satisfied that he had failed to exercise effective and continuous management for this licence. However, his resignation left the operator without a Transport Manager as required by section 13A(3), and I made that adverse finding by reference to section 27(1)(a).

I commenced with the question posed by the appellate tribunal in 2009/225 Priority Freight, namely: how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime? The absence of a Transport Manager on this licence and a change in the entity meant that there was an inevitability to the outcome of this Public Inquiry. Counsel referred to Annex 4 of the Senior Traffic Commissioner’s Statutory Document No. 10 on Decision Making and concluded that the case fell within the SEVERE starting point due to the number of shortcomings identified as part of the desk-based assessment. Counsel pointed to the positive factors, namely the limited instances of drivers’ hours failings, the absence of S marked prohibition notices, that some of the defects were being identified, recorded and rectified, and most positively a zero failure rate at annual test. It was suggested that there was no commercial advantage gained, although it could also be said that the operators were spared the expense of an effective Transport Manager. The amount claimed on the invoices from Mr Hillson might have alerted other operators as to the value of the services. It was accepted that the operators had fallen considerably below the standards expected. They had interacted with the Agency and my office following April 2022, but matters had still not been resolved by the date of the Public Inquiry, as is recorded above.

I was persuaded that it was not necessary to make a formal finding in respect of Mr Casey’s repute as Transport Manager, which would then impact on the ability of the partners to seek as new licence (following the appellate decision in 2017/055 Alistair Walter). However, I retained real concerns as to their fitness to meet the licence obligations. That being an essential element of repute (as was explained in the appeal decision of 2013/082 Arnold Transport Ltd). I was told that lessons have been learned. I noted the assurances to use tachographs across all activities, to address the list of maintenance contractors, to employ effective laden roller brake testing as per DVSA guidance, and to commission an independent compliance audit. They have retained their repute by the narrowest of margins. It should be considered severely tarnished. How they will persuade me to grant a new licence when they had not been prompted to attend Operator Licence Awareness Training, remains to be seen. I directed that this operator’s licence be revoked from 23:45 on 24 April 2023 to allow for a safe run down and to allow opportunity to pursue that application and the nomination of a replacement Transport Manager for Mr Casey.

R Turfitt

Traffic Commissioner

2 March 2023