Decision

Decision for Kailzie Equestrian

Published 30 June 2021

0.1 REDACTED VERSION

0.2 IN THE SCOTTISH TRAFFIC AREA

1. PUBLIC INQUIRY

1.1 Goods Vehicle (Licensing of Operators) Act 1995 (“the Act”):

2. KAILZIE EQUESTRIAN LIMITED - OM2021260

2.1 And - Road Traffic Act 1988

3. Drivers:

4. Susanne McINTOSH [REDACTED]

5. Mark James HOOD [REDACTED]

5.1 BEFORE:

5.2 ANTHONY SECULER, DEPUTY TRAFFIC COMMISSIONER, heard at the Office of the Traffic Commissioner for Scotland, Edinburgh,

5.3 On 10th MAY 2021

6. Background

Kailzie Equestrian Limited (“the operator”), is the holder of a Restricted Operator’s Licence granted on 28th April 2019 authorising two vehicles and one trailer. The licence replaced a previous licence held by the Director, Susanne McIntosh, as a sole trader, from 11th March 2004.

Susanne McIntosh is the sole active director, her co-director and mother, Sheena Begbie, not participating in any part of the proceedings.

In February 2020, the operator applied to upgrade the licence from a Restricted to a Standard National Licence and to increase authorisation to 3 vehicles.

These applications prompted DVSA Vehicle Examiner and Traffic Examiner investigations which were found to be unsatisfactory.

By a call-up letter dated 22nd February 2021, the operator was called to attend this Public Inquiry. The application to upgrade the licence was withdrawn in an email dated 23rd September 2020.

Susanne McIntosh, as a driver for the operator, and Mark James Hood, an employed driver, were called to attend a conjoined hearing to assess their fitness to hold vocational driving entitlements.

7. The Public Inquiry

At the Public Inquiry the operator attended through the director, Susanne McIntosh. The Operator and Ms McIntosh were represented by Mr Neil Kelly, Solicitor.

Mark Hood attended, represented by Mr Gary Miller, Solicitor.

Traffic Examiner Ewan Jackson attended, via video link, on behalf of DVSA.

I heard evidence from Ms. McIntosh for the operator, and, as a driver. I heard evidence from Mr Hood and received written and oral representations from both advocates.

On behalf of the operator, I heard from Ms McIntosh’s stepfather and prospective Transport Manager, Harold Begbie. I also heard from Michael Gray, Transport Consultant. At the conclusion of the hearing, I announced that my decision would be reserved pending consideration of all the evidence read and heard and the submissions received.

8. Findings on the Evidence

I find clear and deliberate breaches of the following sections of the Act as set out in the call-up letter:

i) Section 6 – operating more vehicles than authorised. The operator was in possession of 3 vehicles, one more than authorised. The third vehicle was used on 94 days between May and November 2019 and the operator admitted to using all 3 vehicles at the same time on 12 occasions in 2019.

ii) Section 26(1)(e) – false/unfulfilled statement of expectation when applying for the licence. The specified safety inspection interval of 8 weeks was grossly exceeded in respect of two vehicles. Vehicle S24 KEC was inspected on 5th June 2019 and next on 19th December 2019, a gap of 28 weeks during which the vehicle covered 8946km. Vehicle S31 KEC was inspected on 22nd May 2019 and next on 10th January 2020, a gap of 33 weeks during which the vehicle covered 262,083km.

iii) Section 26(1)(f) – breach of undertakings: (1) Keeping three vehicles at the operating centre in excess of the authorised number of two; (2) Failing to keep records for 15 months of driver defect reports, safety inspections and routine maintenance. Vehicle Examiner Montgomery refers to an original driver defect book with “limited information” and safety inspection intervals being extended from their specified 8 weeks to 28 and 33 weeks. The safety inspection sheets lacked measured brake performance results. Whilst the operator gave assurances in February 2020; “in future I will have my maintenance records double checked to ensure my compliance in every aspect” it is noted that the DVSA Maintenance Desk Based Assessment completed in February 2021 was marked as “unsatisfactory”. The assessor states; “the system is obviously not managed with statement of intent clearly still not being met…no evidence of first use inspections…missing PMI’s”. Further, “the operator states there is a VOR system, there is no evidence of the system or of it being used.” In addition, the driver defect reporting system is marked as “unsatisfactory”, “clearly ineffective”, and the wheel torquing procedure promised in January 2020 is deemed “ineffective” or “none”. In response, the operator stated that missing records were a mistake and owing to inactivity caused by coronavirus. Nevertheless, full records should have been kept and produced promptly on request. (3) Failing to observe the rules on drivers’ hours and tachographs and to keep proper records. The breaches in this area are the most serious and persistent. They are fully set out in TE Jackson’s statement and were largely unchallenged by the operator in their response and at the Public Inquiry. They include:

• Tachograph driver cards were not being downloaded and analysed. This had been for about 12 months during which time the operator would have had no checks or controls over drivers’ working time, breaks, and rest periods.

• Tachograph vehicle units were not being downloaded and analysed. No attempt to assess missing mileage/driving without a card being inserted.

• No working time records were kept.

• No checks to confirm if drivers’ other employment conflicted with the work carried out for the operator in relation to EC drivers’ hours or Working Time Regulations.

• Infringements committed by Susanne McIntosh as a driver, including insufficient daily rest x 4 in 2019 and no regular weekly rest between 20th May 2019 and 8th July 2019.

• Further offences of insufficient daily rest and no regular weekly rest were committed by Ms McIntosh in June/July 2020

• Numerous infringements committed by Mark James Hood, a driver engaged by the operator. These offences included: Failing to take weekly rest x. 5 Insufficient daily rest x. 12+ occasions between June-October 2019 Exceed 10 hours daily driving x. 1 Driving with insufficient rest/breaks x. 2.

• Between 1st May 2019 and 30th November 2019 there were a total of 109 occasions of driving without a card which were in excess of 3 minutes. 34 of these periods exceeded 30 minutes. The response from the operator (page 43 of the brief) to DVSA’s request for specific information as to drivers, identified Mark Hood, but was otherwise vague and non-specific.

• As a driver, Susanne McIntosh admitted, after initial prevarication, driving without a driver’s card being inserted in the tachograph on 13th July 2019 and on 19th July 2019.

• Mark Hood repeatedly drove without a driver’s card being inserted in the tachograph. His statement of case admits 15 occasions when he either failed to insert a card or removed it after periods of driving and continued to drive.

It is submitted on behalf of the operator and Susanne McIntosh as a driver that she was unaware of Mr Hood’s numerous infringements and that her own breaches were inadvertent. Ms McIntosh stated on several occasions in interview and at the Public Inquiry, “I genuinely didn’t know I was doing wrong”.

I find as a fact that the operator knew that the licence was not being properly operated and that infringements were occurring. I come to this conclusion after careful consideration of the evidence and the findings below:

I note that the operator made no attempt to check any tachograph data from the initial grant of the licence. The undertakings are clear and simple and this was not the first operator’s licence held by Ms McIntosh. The undertaking states; “ I have promised…to obey drivers’ hours and tachograph rules (so I will need to know what they are)”. Her sole trader licence was held for 15 years and she was also a professional HGV driver. Even her mandatory driver CPC training would have made it obvious to her, and therefore to the operator company, that drivers’ hours were not being managed and controlled.

TE Jackson states, “Perhaps the reason the business never downloaded or analysed the digital tachograph data was because it was sanctioning breaching the drivers’ hours rules and regulations and did not want on their record that there were infringements and instances of driving without a card”. I find this to be the inevitable and only rational explanation.

Through that inactivity, the operator has sanctioned 34 significant instances of driving without a card, Ms McIntosh has sat alongside Mark Hood whilst offences have been committed and she has driven without a card herself without satisfactory explanation. No disciplinary action has ever been taken against Mark Hood and the operator has continued to engage him after the offences were highlighted by DVSA.

I find that the operator deliberately (either personally by Ms McIntosh or through Mark Hood acting as an agent) folded over the print-out relating to the use of the vehicle without a driver’s card by Oliver Douglas on the 13th July 2019. I concur with the TE’s conclusion that the folding and copying was done to conceal the fact that the print-out was printed 5 days after the event rather than “as soon as reasonably practicable” after the driving.

In any event, the driver Oliver Douglas, should not have been used to drive a vehicle with a digital tachograph as he had yet to be issued with a digital tachograph card by DVLA. Ms McFadden also falsely informed TE Jackson that 3rd August 2019 was the first time Oliver Douglas drove for her (page 54), subsequently admitting his July driving.

The operator failed to name Nicholas McFadden as an occasional driver and failed to download his driver card stating, “I know it’s wrong”.

I find that the operator was deliberately vague in her response to the TE about specific dates, vehicles and drivers. I find the explanation that she allowed a mischievous pet access to her diary, her sole source of important information as to drivers, duties and dates unconvincing and wholly unsatisfactory.

I find that Ms McIntosh drove without a card being inserted for 2 hours and 18 minutes in order to try to conceal the fact that she had achieved only 5 hours and 13 minutes rest within the 24 hour period. TE Jackson states, “Susan McIntosh must have been aware she had driven without a card on these two dates I had asked her who had carried out the driving. Rather than identifying each driver for each date she gave a generic answer in her email. It appears that Susanne McIntosh chose to drive without a card for gain”. I concur with the TE’s conclusion.

I find that Ms McIntosh was less than forthcoming when she denied to TE Jackson using all 3 vehicles at any one time, stating “Not that I’m aware of, no” when asked. As the sole active director and clearly ‘hands-on’ manager, I have no doubt she would have been aware of the third vehicle being booked out at the same time as the 2 authorised.

Mr Harold Begbie, Ms McIntosh’s step-father, impressed as a knowledgeable, experienced and conscientious driver/haulier. He described the operation of the licence as “a total shambles”, and she failed to avail herself of his management ability before the DVSA investigation and pending Public Inquiry.

I note that his previous nomination as Transport Manager in February 2020 was withdrawn owing to “unforeseen circumstances” and to his credit, Mr Begbie stated that he was not willing to get formally involved until he was satisfied things would be done right.

I find the explanation for the wrongdoing, “but for these 6 weeks we were busy” unacceptable, demonstrating a willingness to cut corners and take risks for commercial gain.

9. Considerations and Decision

I weigh in the balance the positive and mitigating features in respect of this operator:

• Subsequent to the DVSA investigation Ms McIntosh has engaged professional transport support and now puts forward her step-father, Harold Begbie, as a potential Transport Manager.

• Susanne McIntosh has worked as a HGV driver for another operator increasing her confidence, competence and knowledge.

• This is the operator’s first public inquiry.

• The absence of prohibitions/safety critical defects.

• The impact of Covid 19 on the operation of the business and on the ability of the operator to demonstrate full compliance.

Balancing those features against my findings that the breaches by the operator; were deliberate/reckless acts that compromised road safety, caused/permitted driver offending and, entailed attempts to conceal offending, the starting point for regulatory action in Annex 3 of Senior Traffic Commissioner’s Statutory Document No. 10 must be, “severe”. Revocation (with or without disqualification), extended suspension or significant indefinite curtailment are the suggested starting points. I have regard to my discretion to move up or down from the suggested starting point based on the facts of the particular case and the potential impact on the operator.

I consider the “Priority Freight” question, (Priority Freight Ltd. v Paul Williams TT (2009/225)), “how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime?”

Susanne McIntosh failed to impress as a witness. I set out above my reasons for rejecting her contention that she “genuinely did not realise that she was doing anything wrong” and by her own admission she was “totally negligent” with regard to the maintenance system.

The fact that Ms McIntosh was one of the offending drivers sends the wrong message to the employed drivers and gives me little confidence in her ability or commitment to raise standards to an acceptable level.

It is submitted on her behalf that “sufficient and effective changes made, with tangible evidence to ensure compliance”. Whilst the basis of systems has been established, I am not satisfied that Ms McIntosh is able to secure compliance in the foreseeable future without mandatory professional assistance. When asked about the tachograph infringement reports received from consultant Michael Gray her response in October 2020 was, “I don’t know what I’m supposed to do with them”, suggesting significant gaps in her ability to manage compliance on her own.

Despite the seriousness of the shortcomings identified in the 2019 investigation and the engagement of consultants, matters had not improved sufficiently by 2020 to prevent the June/July offences. Ms McIntosh clearly did not understand, or correctly apply, the advice from Michael Gray regarding double-manning and her knowledge still appeared vague in certain areas at the Public Inquiry. Having seen and heard from Michael Gray at the Inquiry I accept his professional competence and integrity and I have no doubt that he would not have advised the operator to act as she and Mark Hood did in 2020.

I therefore answer the Priority Freight question in the negative. I find it unlikely that this operator will, in future, operate in compliance with the operator licensing regime.

With regard to the Bryan Haulage (No. 2) (2002/217) question; “is the conduct such that the operator ought to be put out of business?” the answer is firmly “yes”, albeit that this is a restricted licence where transport is ancillary, but essential, to the main equestrian business.

TE Jackson concludes his statement; “Breaching the drivers’ hours rules and regulations and driving without a card to hide the fact that breaks and rest have not been achieved shows total disregard for the drivers’ hours rules and regulations. It puts lives at risk”. Whilst Ms McIntosh stated that she would not do anything to put the lives of people or animals at risk, she must acknowledge that she has done just that. Her step-father and prospective Transport Manager, Harold Begbie, described the licence as “a total shambles” and it was clear that he had pointed out the risks to the operator, particularly when Ms McIntosh’s partner was part of the business.

I also take into account the road safety risks posed by vehicles not having their preventative maintenance checks for 28 and 33 weeks.

I determine that the operator no longer satisfies the requirements of the Act in respect of fitness/good repute (Red Sky Wholesalers Ltd (2013/07) and weighing up the positive/mitigating features against the serious and repeated nature of the breaches and the risks to road safety, I consider that revocation of the licence is appropriate and proportionate.

The Restricted Operator’s Licence for Kailzie Equestrian Limited is revoked under section 26(1)(e) - false statement of expectation, (f) – breach of undertakings, and (h) – material change-fitness to hold a licence, with effect from 00.01 on 20th June 2021.

I give due credit for the positive features and the assurances given in determining that the operator, and the director(s), need not be disqualified from holding or obtaining an operator’s licence in the future. Any new application must be for a Standard National Licence such that a professionally competent Transport Manager will be a mandatory requirement and that individual will therefore carry joint legal and practical responsibility for compliance.

In many respects, the willingness of Harold Begbie to come forward and be a Transport Manager on his stepdaughter’s licence is a strong factor supporting this determination. He clearly took his professional responsibilities seriously and he had taken the initiative of booking to attend an RHA Transport Manager refresher course on 10th and 11th June in order to update his knowledge. I am satisfied that he would keep to his word to withdraw his nomination and inform the Traffic Commissioner immediately if things were not being done correctly or his input was being ignored.

I would not be minded to delay implementation of the revocation, or to provide early authority to operate under a Standard Licence application, in the circumstances of this case. A period of reflection, re-training and re-focussing is essential and if that results in a period of business inactivity or financial hardship, that is down to the operator’s irresponsibility in running their licence in the past.

10. Driver Conduct Decisions

Sections 115-117 of the Road Traffic Act 1988 set out the Statutory background to the driver conduct hearings. I have regard to the evidence and findings at the conjoined operator Public Inquiry as set out above.

Mark Hood was identified by the operator as the main offender with regard to driving without a card. Analysis of his digital driver’s card revealed the following offences relating to rest periods and breaks as a driver: Failing to take weekly rest x. 5 Insufficient daily rest x. 12+ occasions between June-October 2019 Exceed 10 hours daily driving x. 1 Driving with insufficient rest/breaks x. 2

Some of those offences involved substantial departure from mandatory rest/break periods. For example, from the 30th July until the 21st August 2019, there were 22 days, 2 hours and 15 minutes without the required 45 hours rest.

On 5th August 2019, he achieved only 6 hours and 50 minutes rest when 9 hours was required.

On 11th August 2019, he drove for 5 hours and 10 minutes without taking a qualifying 45 minute break.

Mark Hood’s offences relating to driving without a card are the most serious. I deal with him on the basis of the 15 admitted occasions from his “Statement of Case”.

In evidence at the Inquiry, Mark Hood was unwilling to take full responsibility repeatedly stating, “it never crossed my mind” that pulling the card was wrong. He referred to “other people” in the horse community doing the same thing and operating without a licence at all.

The statement of case referred to a “culture of infringements among the operator and colleagues”. Driving without a card being inserted was something he had witnessed and “he was well aware that it was and is wrong.” He did not “appreciate the seriousness nor the possible penalties”.

However, at the hearing he repeatedly stated that he did not recognize it was wrong at the time, placing his representative in a difficult position professionally. Mark Hood replied “no comment” to every question about his driving at interview and whilst I recognize the exercise of his right to silence in the interview under caution, I can give him little credit for cooperating with DVSA in the investigation.

I can find no plausible explanation for the failure to insert the driver card when starting driving, and ‘pulling’ the driver card after a period of driving, other than an attempt to conceal excess driving, insufficient breaks and rest periods. Indeed, the pattern of Mr Hood’s card being inserted/withdrawn before and after periods of extended driving as set out in the TE’s evidence shows a clear and deliberate attempt to minimize infringements on the card.

As an example, on the 21st June 2019, during the spell of regular, repeated offending, Mark Hood deliberately withdraws his card at 22.04 and carries on driving until 00.02 on 22nd June 2019. His driver’s card indicates he had 9 hours 25 minutes rest when he, in fact, had 7 hours and 27 minutes.

I repeat the statement of TE Jackson in respect of the operator’s licence; “Breaching the drivers’ hours rules and regulations and driving without a card to hide the fact that breaks and rest have not been achieved shows total disregard for the drivers’ hours rules and regulations. It puts lives at risk”

Mark Hood has expressed limited recognition of this risk to his and public safety. He did concede to me eventually during the hearing that he removed his card because he knew or suspected drivers’ hours offences but he demonstrated little contrition.

It is submitted that the investigation and the driver conduct hearing has “provided a monumental salutary lesson for him”. I do note that he was a relatively inexperienced driver, that he had personal problems, [REDACTED] and that his driving conduct since leaving the operator has been generally compliant. I also have regard to the positive reference on his behalf.

Mr Miller’s Statement of Case asks me not to disqualify Mr Hood “regardless of the suggested starting points” in the Senior Traffic Commissioner’s Statutory Document No. 6 and the suggested starting points contained therein. I am not willing to disregard the starting points. They provide a consistent basis for decision making and they provide important guidance to me, and warning to drivers and the industry generally, as to the consequences of various actions.

Annex A of Statutory Document No. 6 suggests a starting point of 12 months disqualification and having regard to the frequency, extent and duration of Mr Hood’s offending, a longer period would be appropriate.

I do however, deal with this case on its individual merits and I weigh in the balance the mitigatory and positive factors contained in the Statement of Case.

Mark James Hood’s vocational driver’s licence is suspended for 12 months with effect from 5th June 2021.

In dealing with Susanne McIntosh as a driver I do not aggravate her offending by her inability to manage the drivers’ hours compliance as an operator. I deal with her on the basis of her admitted infringements.

Ms McIntosh has 2 offences of driving without a card, 5 offences of insufficient daily rest and 3 of insufficient weekly rest.

I note the circumstances of the driving without a card on 13th June 2019 and 19th July 2019 when Ms McIntosh was driving with Mark Hood. In interview she stated’ “it was all totally wrong what we were doing”. I agree with the TE’s conclusion that Susanne McIntosh must have been aware that she was driving without a card and that the 2 hours 18 minutes of driving on the 13th June reduced her daily rest from the recorded 8 hours and 15 minutes to a mere 5 hours and 13 minutes. As TE Jackson states, Ms McIntosh could not have been unaware of Mark Hood’s offending when they were together in the vehicle.

Some of those offences were far from minor breaches. For example; 7 hours and 54 minutes rest on 7th August 2019 instead of mandatory 9 hours; 21 days, 12 hours and 44 minutes without weekly rest between 3rd June 2019 and 24th June, and; only 6 hours 2 minutes daily rest on 11th July 2020.

I repeat the statement of TE Jackson in respect of the operator’s licence; “Breaching the drivers’ hours rules and regulations and driving without a card to hide the fact that breaks and rest have not been achieved shows total disregard for the drivers’ hours rules and regulations. It puts lives at risk”.

I have regard to the Senior Traffic Commissioner’s Statutory Document No. 6 – “Driver Conduct” and the suggested starting points contained therein. Case Study 18 outlines a 4 week suspension per offence for failing to keep a record, deliberate “pulling” of the drivers’ card, which I find Ms McIntosh’s driving without a card to be.

The 7 offences of insufficient daily/weekly rest fall within Case Study 23 suggesting a further 8 week suspension period.

I am prepared to mitigate the overall suspension period, having particular regard to her good driving conduct in her new employment and positive reference from her employer, Peter Brown Haulage.

Susanne McIntosh’s vocational driving licence is suspended for 12 weeks with effect from 5th June 2021.

Anthony Seculer,

Deputy Traffic Commissioner,

Scottish Traffic Area.

26th May 2021