Decision

Decision for Kenneth Cooper, Transport Manager

Published 27 June 2023

0.1 In the North Eastern Traffic Area

1. Decision of the Deputy Traffic Commissioner

1.1 Kenneth Cooper, Transport Manager,

2. Background:

Pallas Transport Services Ltd (hereafter Pallas) has held a Standard National Goods Vehicle Operator’s licence, authorised for 12 vehicles and 6 trailers, since August 2010. The sole director is Lorna McCaffrey.

The operator was called before me at a conjoined Public Inquiry on 3 April 2023, together with its sole TM, Kenneth Cooper. He had been the nominated TM on the operator’s licence since March 2015.

3. The Public Inquiry:

On the morning of his Public Inquiry (and that for Pallas), however, I discovered that he had been removed by the operator as TM with effect from 31 March 2023.

A letter purporting to come from Kenneth Cooper was dated 30 March 2023. He stated he was stepping down as TM and that this decision reflected a mutual agreement with the operator, but this was not because of the allegations made against him. [REDACTED]. Notice was given in it that legal action would be taken against DVSA staff and that such action would embrace staff in the Office of the Traffic Commissioner. It asserted that he had not ruled out acting as a TM again in the future. Whilst he admitted making mistakes, which he had learned from, he stated that he did not believe he had done anything wrong. The letter also drew attention the joint report (with Mr Westgarth) that contended that the “S” marked prohibition was not justified, since the damage caused could have been caused by road debris. (It will be noted that this matter was raised within the Public Inquiry and that I made a finding upon it).

I determined to proceed with the conjoined Public Inquiry for the operator and TM and to produce (this) written decision in the case of Mr Cooper. Due to pressure of workload the preparation of this decision has been delayed a little, for which I apologise.

Mr Cooper had obtained his TM CPC qualification by examination in 2007.

Mr Cooper had some regulatory history, all of which was set out in the joint brief for the hearing. In summary:

• He had previously been TM on the licence of John McCaffrey (OC0221584) from 1 December 2005. He ceased to hold that role, in which he had undertaken to dedicate 16 hours per week in January 2023. The had been no adverse compliance history during his period of office.

• Pallas itself had been called to Public Inquiry on 2 February 2016 when a curtailment of the operator’s licence was directed, and a finding made by DTC Harrington that Kenneth Cooper’s good repute as TM was marked as “severely tarnished”.

• The operator had also made a disclosure of Mr Cooper’s [REDACTED] , which had led to a formal warning recorded against him.

• In 2019, Mr Cooper had been proposed as the nominated TM for the new licence application made by Callaghan’s Transport Ltd (OM2013190). The licence itself was eventually granted but Mr Cooper was never approved as TM by the Traffic Commissioner. Concerns were raised about his history and his good repute. The form of application for his appointment as TM (signed by him) had included false declarations, namely that he wasn’t listed as TM on any other licence (when he was named as TM on the John McCaffrey licence), that he had retired (when he had not) and that he had never been concerned with a licence subject to regulatory action at Public Inquiry (when he had - see above).

The circumstances leading to the calling-in were, of course, set out in the joint brief served on Pallas and Mr Cooper, and in supplementary papers issued during the much-extended period before this matter reached the hearing on 3 April 2023. I don’t set them out in full here but for ease of reference, I attach a copy of the written confirmation of the oral decision that I gave in the case of Pallas, for his information. The concerns set out there, which I found were made out in respect of the operator concerned the accumulation of prohibitions, breaches of the statement of intent and the undertakings attached to the licence, were also relevant to the decision I would need to make about Mr Cooper’s good repute as TM.

One of the central concerns was that despite being the sole nominated TM on the Pallas licence (save for a short period between 10 March 2022 and 14 June 2022, when he was joined by Gerald Hamilton) that he also drove extensively for Pallas. The drivers’ hours evidence produced for this hearing showed that typically he drove on 4 or 5 days each week, despite his original application had referred to him undertaking the TM role for 40 hours per week (as well as acting in the role on the John McCaffrey licence for 16 hours per week, until January 2023).

The written reports of DVSA witnesses included the following references to Mr Cooper:

• TE Thomas in his Traffic Examiner visit report (TEVR) dated 16 September 2021 –

The transport manager - Kenneth Cooper is still carrying out driving duties as opposed to management duties for this licence. I was advised that this was due to a shortage of drivers due to the present climate and that steps were being taken to get him back into management duties as soon as possible.

I also advised that he attend a further TM refresher course as the last refresher was completed in 2016 - certificate seen.”

• VE Cave in his statement of facts in response to the complaints raised by Pallas about the initial visit to the operating centre on 7 October 2021 –

“Following Ms McCaffrey’s departure from the site, Ms Pallas returned to the office building. A short time later Ms Pallas returned clutching a telephone. She passed the telephone to me and stated that Kenneth Cooper, transport manager was on the line. I informed Mr. Cooper of the reason for our visit to the site, he appeared to be unaware of the facts surrounding the issue of the “S” coded prohibition notice on 21 September 2021. Mr Cooper stated he was unavailable as he was “out driving”.

• VE Turnbull after his investigation concluded in March 2022–

“With the shortcomings found at the time of the visit and the “S” marked prohibition it would appear that the transport manager, Mr Kenneth Cooper, does not have fully effective control” (MIVR para 13).

Shortcomings found during this investigation are:

• Very little records of any roller brake testing carried out were produced,
• More robust VOR system required,
• Weaknesses in maintenance standards,
• Higher than national average annual test failure rate,
• “S” marked prohibition at roadside,
• Transport manager control.”

The other significant concerns are addressed in the decision I made having heard evidence on 3 April 2023. Kenneth Cooper was TM throughout the period when road safety critical prohibitions were issued to the operator and when the effectiveness of the in-house maintenance facility was brought into question. DVSA officers recorded adverse outcomes when they concluded investigations, their criticisms including basic system failures which an active and competent TM would be expected to address. (It needs to be acknowledged that TE Thomas did record a mostly satisfactory outcome in September 2021, and VE Turnbull referred to improvements put in place when he completed his report some 6 months after the issue of the ”S” marked prohibition.)

The email from the operator’s consultant dated 31 March 2023 included the following passage, under a heading concerned with “how the operator will be seeking to explain events”:

3.1 “Poor conduct from the currently listed TM - Kenneth Cooper

Mr. Cooper has advised me directly that he has no intention of attending the inquiry or the conjoined TM hearing.

• My opinion is that he has been in neglecting his duties in the expectation that other staff members were dealing with matters on his behalf.
• There is definitely a degree of misunderstanding between the TM and other members of staff as to who was doing what, leading to a lack of consistency.
• In the event that Mr Cooper does not lose his good repute, and/or is not disqualified as being a transport manager, the operator has made a decision to remove him from the position and take action to replace the position as soon as possible.”

I had heard from three DVSA witnesses during the Public Inquiry and had read considerable material both concerned with their findings when interacting with the operator and TM, or the company’s vehicles, but also (as far as it was relevant) when addressing complaints made about them and DVSA. As far as their evidence about the company’s systems and the role of Kenneth Cooper were concerned, I accepted their evidence as coherent and credible.

Of course, I was deprived of the opportunity which would have been afforded by his attendance of seeing them questioned by Kenneth Cooper, and of hearing from him and being able myself to put matters to him.

I did however hear from the director’s representative, Sylvia Pallas, and noted her admissions made about his role as TM. Specifically, her personal acknowledgement that Kenneth Cooper had been “going through the motions” (her words) so far as his TM role was concerned. Plainly, I recognise that this being the case and that driving responsibilities were being prioritised over his TM role, represent fundamental compliance concerns for both the operator and for the TM himself. Patently, a failure to prioritise his role as the TM, when he was required to be responsible for the continuous and effective management of transport operations, is a matter going directly to his good repute. The more so, in circumstances where the interactions with DVSA exposed serious shortcomings likely to require even greater attention to the role, in order to resolve matters satisfactorily. This failure is mirrored in my decision that by the date of the Public Inquiry, not enough had been done to achieve compliance. What I termed a “shopping list” of steps yet to be taken, was outlined by Christopher Allen, demonstrating that despite the long period that had passed, I could not have confidence in future compliance, where the removal of the TM came only days before the Public Inquiry.

4. Findings and conclusion:

Mr Cooper has exercised his right not to attend the hearing and, of course, I am unable compel his attendance before me. That said, transport managers owe a duty to the Traffic Commissioner (or Deputy) as their professional regulator to attend before them when requested. The calling-in letter explains the consequences of non-attendance and failure to cooperate with the Inquiry.

His lack of readiness to attend, in the light of his previous history when his repute was marked as “seriously tarnished” and in spite of his apparent desire to keep open the prospect of acting as a TM, reflects a poor understanding of the licenced regime and the expectations of him. It also conflicts with the repeated assertions throughout the period since the issue of these proceedings that he was either legally represented or in the process of acquiring representation.

The absence of Mr Cooper is such that I have been unable fully to address the matters raised by him in correspondence before the hearing. I conclude that I cannot be satisfied that he was carrying out the proper role of TM during at all material times. I do not believe that he was honouring the undertakings that he gave about hours worked as TM (on two licences) whilst driving to the extent that he was. I conclude that his good repute is lost. Whilst I give some credit to him for the decision to stand down, it is not enough to avoid that finding, since he appears to accept no responsibility at all for road safety concerns that have arisen from the operation of the Pallas licence. I consider the loss of his repute to be entirely proportionate outcome in the circumstances described.

I find he is unfit to act as TM and disqualify him indefinitely from holding office as TM. This order takes effect immediately. The record shows that (following his recent removal) he is not currently acting as TM on any other licence. In his absence I am unable to identify rehabilitation measures.

Simon Evans

Deputy Traffic Commissioner

for the North East of England

15 April 2023.