Decision

Kenneth Murray Owen & Wendy Elizabeth Owen T/A KM Owen Plant Hire OG1087559 and Transport Manager Warren Gordon Mainwaring And Gareth David Bebb & Vanessa Bebb T/A GD & V Bebb OG1082510 and Transport Manager Vanessa Bebb

Published 5 July 2023

0.1 In the Welsh Traffic Area

1. Written Decision of the Traffic Commissioner

1.1 Kenneth Murray Owen & Wendy Elizabeth Owen T/A K Owen Plant Hire (OG1087559) and Transport Manager Warren Gordon Mainwaring

&

1.2 Gareth David Bebb & Vanessa Bebb T/A GD & V Bebb (OG1082510) and Transport Manager Vanessa Bebb

2. Background

The partnership Kenneth Owen & Wendy Owen (trading as KM Owen Plant Hire) holds a Standard National Goods Vehicle Operator’s Licence authorising 1 vehicle and 2 trailers, granted on 22 May 2009.

Warren Mainwaring has been the transport manager on the licence since 11 April 2022. The previous transport manager was Laura Marie Roberts who was disqualified from acting as a transport manager at a public inquiry in February 2022, when I determined that she was no longer of good repute. Warren Mainwaring is also transport manager on another licence in the West Midlands Traffic Area which has authorisation for 7 vehicles, although there are only 2 in possession.

The partnership Gareth Bebb & Vanessa Bebb (trading as GD & V Bebb) holds a Standard National Goods Vehicle Licence granted on 28 August 2008 authorising 1 vehicle and 2 trailers. Vanessa Bebb is also the transport manager on the licence.

On 27 January 2023, Kenneth and Wendy Owen submitted a variation application which sought to increase their authorisation from 1 vehicle and 2 trailers to 4 vehicles and 2 trailers. That application generated a maintenance investigation by the Driver and Vehicle Standards Agency (“DVSA”), the results of which were unsatisfactory. The DVSA Vehicle Examiner (“VE”) who carried out that investigation discovered that one of the vehicles being operated by the Owen partnership was the vehicle specified on the licence held by the Bebb partnership. That triggered a DVSA maintenance investigation into the licence held by the Bebbs, the results of which were also unsatisfactory. Both operators and their respective transport managers were called to Public Inquiry to explore the shortcomings found and set out in the maintenance investigation visit reports.

3. Hearing

Letters calling both operators and transport managers to public inquiry were sent on 20 April 2023 advising that the public inquiry would be held on 13 June 2023 at the Office of the Traffic Commissioner for Wales in Pontypridd. On 25 May 2023, my office received a letter from Vanessa Bebb apologising for the shortcomings identified in the DVSA report, which were not contested by the partnership. She accepted that she had not maintained continuous and effective control of the transport operations and explained that the partnership no longer wants to hold an operator’s licence and she does not want to act as a transport manager again. The partnership asked to surrender its operator’s licence and indicated that neither partner would be attending the public inquiry hearing and nor would they be represented. I refused to accept the surrender request under section 16(4) of the Act in view of these regulatory proceedings. The public inquiry went ahead on 13 June 2023 in the absence of Gareth Bebb and Vanessa Bebb. Kenneth Owen and Wendy Owen both attended the hearing, represented by Harry Bowyer, solicitor, of Smith Bowyer Clarke. Warren Mainwaring, transport manager attended, also represented by Harry Bowyer. VE Lee Rees attended from the DVSA.

4. Issues

The public inquiry was called for me to consider whether there were grounds for me to intervene in respect of the licences held by Kenneth and Wendy Owen and by Gareth and Vanessa Bebb specifically by reference to the following sections of the Act: 6, 26(1)(a), 26(1)(b) 26(1)(c)(iii), 26(1)(e), 26(1)(f), 26(1)(h), 27(1)(a) and 28.

Warren Mainwaring and Vanessa Bebb were called in their capacity as transport manager to consider whether I should make a finding against their repute or professional competence, by reference to paragraphs 14A, 16 and 17 of Schedule 3 to the Act.

5. Evidence

In addition to the papers in the public inquiry bundles and the letter from Vanessa Bebb (already referred to above) I had also been provided in advance of the hearing with additional evidence in the form of an “operator’s bundle” from the Owen partnership which included a statement from Kenneth Murray Owen and a compliance review report from an independent transport consultant, Steve Rounds & Associates Ltd, who were instructed by the operator to carry out an audit on 15 May 2023.

The operator Kenneth Owen and Wendy Owen had provided maintenance documents to VE Rees, as requested in the call-in letter, and VE Rees produced an update statement dated 2 June 2023 including his comments on that evidence. The partnership also provided the requested financial documents as requested in the call-in letter, which were satisfactory.

No maintenance or finance documents were provided by the Bebb partnership.

The evidence of VE Rees included in the public inquiry briefs and his update statement was adopted by him and Mr Bowyer indicated that it was not contested. Vanessa Bebb had also confirmed that she and the Bebb partnership did not contest VE Rees’ evidence. VE Rees gave oral evidence about what had triggered his investigation in respect of each operator and was questioned by me about the condition of the vehicle when it was driven by Kenneth Owen from the maintenance provider in circumstances where he was expressly advised not to use it because of safety critical defects which had not been rectified.

Kenneth Owen adopted his witness statement and gave oral evidence, responding to questions from both Mr Bowyer and from me. Warren Mainwaring gave oral evidence and responded to questions from Mr Bowyer and from me. I heard closing submissions from Mr Bowyer on behalf of his clients and I then reserved my decision.

6. Findings of fact

6.1 Kenneth Owen and Elizabeth Owen OG1087559

It was accepted by the Owens that they were effectively operating more vehicles that the maximum number on their licence by also using the vehicle specified on the Bebbs’ licence. The reasons why this arrangement came about were explored in evidence. Gareth Bebb worked with Kenneth Owen on the same jobs and they drove each other’s vehicles because Gareth Bebb found driving the Owens’ vehicle easier. The Owens partnership agreed to maintain the Bebbs’ vehicle as well as their own. This arrangement carried on for some 15 months until the DVSA visit earlier this year. The Owens now realise that this arrangement was unlawful and clearly in breach of their licence conditions. They accepted that they should have known this but maintain that they did not until it was brought to their attention and that there was no fraudulent intent. Accordingly, I find that they were operating more vehicles than the maximum number on their licence, in breach of section 6 of the Act and their licence conditions and that section 26(1)(b) of the Act is made out.

It is undisputed that the operator has been issued with a prohibition notice by the DVSA in the past five years. VE Rees issued a delayed prohibition to vehicle Y358MEN for excessive movement in steering joint, offside axle 2 track rod end during his fleet inspection on 8 February 2023. The defect was identified by the maintenance provider during a periodic maintenance inspection (“PMI”) only 7 days earlier, with a note to “monitor”. The operator’s response to VE Rees in February and evidence at inquiry was that this should have been rectified by the maintenance provider and that they were let down in that regard. Nonetheless, the operator accepted the DVSA evidence that the prohibition demonstrates a weakness in the operator’s maintenance system and that it is the operator’s responsibility to ensure its vehicles are maintained. Accordingly, I find that section 26(1)(c)(iii) of the Act is made out.

The DVSA evidence that PMI intervals were exceeded is undisputed. The vehicles should be inspected at 6 weekly intervals, but there was evidence that some were extended up to 12 weeks and there was evidence of the vehicle being used in the extended inspection interval. Accordingly, I find that section 26(1)(e) of the Act is made out.

The operator failed to comply with the undertaking that its vehicles and trailers would be kept fit and serviceable as evidenced by the prohibition notice issued and the poor MOT fail rate. Maintenance standards were assessed as inadequate with dangerous defects resulting from braking imbalances repeatedly identified at PMI but not effectively addressed. Brake testing arrangements were a cause for concern, with only 3 of the 10 PMI sheets evidencing any form of brake assessment.

The operator failed to comply with the undertaking that it would keep proper safety inspection and routine maintenance records. PMI reports were incomplete, with only 3 of 10 inspected including any form of brake assessment and abnormalities found (re tyre pressure and tread and mileage).

Accordingly, I find that section 26(1)(f) of the Act is made out.

6.2 Warren Mainwaring – transport manager

Warren Mainwaring was appointed as transport manager on the Owens’ licence on 11 April 2022 following the loss of repute of their previous transport manager. He sat his CPC qualification over 20 years ago but had not previously acted as an external transport manager and decided to sit a CPC Refresher course in 2021, which he successfully completed. However, even before the DVSA intervention in February 2023, Warren Mainwaring realised that his knowledge was not what it should be, and he enrolled on a 12-month transport manager mentoring programme with Steve Rounds & Associates Limited. Warren Mainwaring was completely candid in his evidence and accepted that he had failed in his duty effectively and continuously to manage the transport operation in view of the failings found by the DVSA, which were accepted. There were worrying gaps in his knowledge, which he himself has outlined in his response to VE Rees immediately following his maintenance visit. I found that there was some mitigation, particularly given the systems which he inherited from the previous transport manger who I determined had lost her repute and had disqualified in February of last year. There was also a very poor maintenance provider and Warren Mainwaring now realises that the transport manager role requires very active management of the provider, with close scrutiny of all reports and documentation received. VE Rees confirmed that some systems had only just been introduced by Warren Mainwaring in the days before his visit, such as a documented VOR policy and a safety and recall system. Warren Mainwaring’s response to VE Rees, when questioned about the vehicle used and maintained by Kenneth Owen whilst specified on the licence of Gareth Bebb, was that he was unaware of this arrangement. That is borne out by all the evidence before me and I accept it to be true and not as surprising as might first have appeared, given the particular facts of this case.

The DVSA evidence and evidence from the compliance review report produced by the operator both raise concerns about Mr Mainwaring’s knowledge and ability to perform the role of transport manager, certainly at the time of the initial visit in February 2023. I heard evidence about the mentoring programme he has enrolled on and changes to the operator’s systems that he has now put in place, with advice and assistance from experienced transport consultants, with whom he and the operator are now working closely. He has reduced the hours he works as a driver for another company and attends at the operating centre more frequently (weekly rather than fortnightly).

6.3 Gareth Bebb and Vanessa Bebb OG1082510

The DVSA evidence as to PMI inspections was that they inspection intervals were obviously not managed. The vehicle operated by the Owen partnership remained specified on this licence until 1 February 2023 but, despite the wall planner showing the inspections due at 6 weekly intervals, these were extended up to 16 weeks. The operator accepted that they had allowed the Owen partnership to use their vehicle and had relinquished responsibility for the maintenance of the vehicle, with these changes clearly not notified to the traffic commissioners and with the vehicle no longer kept at their operating centre. Accordingly, I find that section 26(1)(c)(e) of the Act is made out.

I am satisfied on the evidence, which is not disputed, that undertakings signed up to when the operator applied for the licence have not been honoured, namely that vehicles and trailers would be kept fit and serviceable, that the operator would keep records for 15 months of driver defect reports, safety inspection and routine maintenance and make them available on request and that the traffic commissioner would be informed of any changes which affected the licence. Accordingly, I find that section 26(1)(f) of the Act is made out.

The operator no longer has any vehicle specified on the licence and no longer wishes to operate. The licence holder partnership has not submitted evidence of its financial standing and I must therefore make a finding that the licence holder no longer satisfies the requirement of section 13A(2)(c) of the Act.

Vanessa Bebb, transport manager on the licence, has confirmed that she no longer wishes to act in that capacity and my findings in relation to her good repute are also relevant to my finding that the licence holder no longer satisfies the requirement of section 13A(3) of the Act.

6.4 Vanessa Bebb – transport manager

In her letter to my office (sent by email on 25 May 2023) Vanessa Bebb accepts that she has not maintained continuous and effective control of the partnership’s operation, and states that she regrets her inaction. She has confirmed that she wishes to withdraw from the industry as transport manager. Whilst I have sympathy for Mrs Bebb’s very difficult personal situation since 2020 (which she has fully explained in her response to VE Rees included in the PI Brief) that cannot excuse her inaction. As a professionally qualified transport manager, she must have been aware that “lending” the vehicle specified on the Bebb licence to Kenneth Owen was not only wrong but dangerous. By relinquishing control and responsibility for the vehicle’s maintenance, she effectively allowed that vehicle to be operated in an unsafe condition. I am satisfied on the evidence and on the balance of probabilities that she has failed to exercise continuous and effective control of the operator’s transport operations. The serious failures found by the DVSA have arisen on her watch as a professionally qualified transport manager. In considering the good repute of Vanessa Bebb as transport manager and having regard to the Senior Traffic Commissioner’s Statutory Document 3, I consider that no transport manager presiding over this degree of non-compliance and illegality could possibly retain their repute and consider it entirely proportionate to make a finding that Vanessa Bebb has lost her repute.

7. Considerations and decisions in respect of Kenneth Owen & Wendy Owen OG1087559

Having regard to the Senior Traffic Commissioner’s Statutory Document 10, Annex 4, and having considered all the evidence, I place this case in the “serious” category. I have considered the negative and positive features of this case. There was ineffective management control and insufficient or no systems in place to prevent operator licence compliance failings, including using another operator’s vehicle under an arrangement that was in breach of licence conditions. There were road safety critical defects on vehicles used by the operator, including a vehicle used by Kenneth Owen after the maintenance provider had informed him that it should not be driven as it was not roadworthy. That was a deliberate act which compromised road safety. Although Mr Owen has admitted this was an error of judgment and apologised, and I accept that he did drive the vehicle back to his operating centre and rectified the defect, this was a serious failure which cannot be excused.

On the positive side, the operator co-operated with the enforcement investigation and with the public inquiry process. There have been no “S” marked prohibitions and there is no previous enforcement history. It is to the operator’s credit that they engaged the services of a transport consultant and Mr Owen recently attended an Operator Licence Awareness Training course. I’ve considered the situation now and the evidence put forward in that regard. Some effective changes have been made and I noted the evidence of VE Rees in his supplementary report of 2 June 2023 who found that arrangements for brake testing were now in order and that the documents he analysed prior to the inquiry showed a notable improvement from the systems in place during his initial visit. However, the compliance review report produced by the auditor instructed by the operator in May identified a number of areas that still need to be addressed and commented that the operator will require further guidance and assistance to achieve the expected levels of compliance. I heard evidence about what the operator and transport manager were doing in that regard, particularly regarding pre-MOT testing, brake testing and maintenance arrangement changes. It is recognised by the operator that there is still some way to go and the operator proposed an audit undertaking be attached to its licence to assure me as to future compliance.

In consider the Priority Freight (2009/225) question, “how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime?” I have had regard to the failures I have found proved and find that the operator’s good repute is tarnished by those failings, which I consider were serious. However, in this case I have seen tangible evidence of action taken by the operator and agree with Mr Bowyer that it has changed since the initial DVSA visit. He indicated that the operator accepted the serious nature of its failings and appreciated that regulatory action was inevitable. I was addressed on the effects of revocation and suspension for the business.

I consider that a period of suspension is proportionate in the circumstances and the licence will be suspended for 28 days, commencing at 23:45 hours on 7 July 2023 to allow an appropriate period of running down before that suspension takes effect. The operator retains its repute, albeit tarnished, and this level of intervention reflects the level of progress made to date. The audit undertaking, proposed by the operator and in the terms set out at paragraph 2 of my Decision above is attached to the licence.

The application to vary the licence by increasing operation from one to four vehicles is refused, as I am not satisfied on the evidence that the operator is currently able to operate the one authorised vehicle in a fully compliant way. The evidence about the operator’s aspirations for the future was rather vague and I noted the evidence of the transport manager that he did not feel confident about managing an additional three vehicles at this stage. If the audit report is satisfactory, it will be open to the operator to renew its application then. However, it should seriously consider its requirements and whether such a significant increase in authorisation is really necessary and, importantly, how full compliance will be achieved in the event of such an increase.

8. Considerations and decisions in respect of transport manager – Warren Mainwaring

In considering appropriate action to take against Warren Mainwaring as transport manager, it was clear that he was not properly fulfilling his responsibilities as transport manager in February 2023 when VE Rees made his findings set out in his report. However, he was candid about his failings in his evidence before me and has taken steps to address these, even before the DVSA intervention. He is working hard to improve his knowledge in areas where it was lacking, has increased his presence at the operating centre, and is working closely with a mentor on a transport manager mentoring programme. His role will be supported by experienced transport consultants now engaged by the operator. In all the circumstances, I find that Warren Mainwaring’s repute as transport manager is not lost, but tarnished, in view of the failings found.

9. Considerations and Decisions in respect of Gareth Bebb & Vanessa Bebb OG1082510

Having made a finding that the operator is unable to demonstrate that it satisfies the mandatory and continuing requirements of s13A(2) of the Act as to financial standing I must direct that the licence be revoked under s27(1)(a). I have also made a finding that Vanessa Bebb, transport manager on the licence, is no longer of good repute and must also therefore direct that the licence is revoked under s27(1)(b) of the Act. I do so with effect from 23:45 hours on 23 June 2023.

I have set out my findings above that breaches under sections 26(1)(e) and 26(1)(f) of the Act are made out. The licence is also revoked under those discretionary grounds. Having regard to the Senior Traffic Commissioner’s Statutory Document 10, Annex 4, and having considered all the evidence, I place this case in the serious category. There was a complete lack of management control and insufficient systems and procedures in place to prevent operator licence compliance failings. The operator allowed another operator to use its vehicle, which was subsequently found in use with road safety critical defects. There is no evidence before me to demonstrate that the operator can operate compliantly. On the positive side, the operator did co-operate with the enforcement investigation and there is no previous enforcement history.

In considering the Priority Freight (2009/225) question, “how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime?” I have had regard to the failures I had found proved which were serious, but also the lack of any evidence to demonstrate that it will do so in future. I am aware that the operator currently has no intention of operating again. On balance, therefore, I find the answer to be “unlikely”.

In considering the Bryan Haulage (no.2) (2002/217) question, “is the conduct such that the operator ought to be put out of business?” in reaching my decision, I had regard to the positive and negative features set out in the Senior Traffic Commissioner’s Statutory Document 10, Annex 4, and discussed above. This was a bad case and the starting point for regulatory action was serious. I considered the likely effect that revocation would have, given that the operator is no longer operating and does not intend to operate in future. In the circumstances of this case, it is appropriate and proportionate to answer the Bryan Haulage question in the affirmative and I consider that revocation is the proportionate regulatory response.

10. Considerations and Decisions in respect of transport manager Vanessa Bebb

Having concluded that Vanessa Bebb’s good repute as transport manager is lost, I must also disqualify her under paragraph 16(2) of Schedule 3 to the Act from being a transport manager on any licence. She is disqualified with effect from 23:45 hours on 23 June 2023. The disqualification is for an indefinite period with effect from 23:45 hours on 23 June 2023, although Vanessa Bebb may apply for a hearing before a traffic commissioner if she wishes for the disqualification to be time-limited or cancelled.

Victoria Davies

Traffic Commissioner for Wales

22 June 2023