Decision

Decision for Kent Couriers Limited

Published 21 July 2021

0.1 SOUTH-EAST AND METROPOLITAN TRAFFIC AREA

1. DECISION OF THE DEPUTY TRAFFIC COMMISSIONER

2. PUBLIC INQUIRY HEARD AT IVY HOUSE, IVY TERRACE, EASTBOURNE ON 6 JULY 2021

3. OK1091384 KENT COURIERS LIMITED

4. Background

The operator Kent Couriers Limited is the holder of a standard national licence granted on the 5 November 2009 authorising twenty vehicles with eleven in possession. The sole director of the company is Keith David Phipps, and the transport manager is Peter O’Neill.

The operator was called to a previous public inquiry on the 23 September 2014 when the licence was curtailed from 15 to 13 vehicles. A follow up visit by a traffic examiner found no shortcomings in the systems in place and an application to increase the authorisation to 20 vehicles was approved on the 29 December 2016.

On the 16 March 2020, a vehicle DG16 DHK was encountered when being used by the operator. The vehicle was not displaying a licence disc and subsequent enquires showed that the vehicle had been in use since the 21 January 2020 but not specified on the licence.

A desk-based assessment of the operator was commenced on the 19 March 2020 and this revealed a range of deficiencies. These included a lack of evidence to show that drivers’ and working time directive hours were being monitored, five vehicles in use but not specified on the licence within the period of 28 days allowed, one vehicle in use whilst “locked into” the company card held by B & H Haulage Limited and insured by that operator, ineffective checks being made of driving licence entitlements, some data requested not provided with numerous infringements being shown on the records that were.

As a result of these failings the operator was called to public inquiry together with six of the drivers who were called to conjoined driver conduct hearings.

In advance of the inquiry the operator was asked to produce specified data in relation to at least two drivers for a period of three months. The data was sent to Traffic Examiner Lordan who found significant and continuing failings. These included inadequate driving licence checks, driver infringement reports incomplete and inaccurate and operating vehicles in excess of the number specified.

5. The Public Inquiry

Mr Phipps and Mr O’Neill attended the enquiry and were represented by Ms Dart. In advance of the hearing written representations had been submitted and I confirmed that I had read these and the various other documents that had been sent.

6. Evidence

Traffic Examiner Lordan confirmed the contents of his original statement and said that an estimated 50% of the information that he had requested had not been sent to him. He had dealt with a lady who he believed was an administrator but had not been contacted by the director or transport manager. He agreed that the request for data had been sent during the early period of national lockdown in April 2020 and that the administrator had told him that she was the only person in the office at that time. He did not accept that he should have given additional advice and assistance when the operator employed a transport manager and a consultant. He felt that the policy allowing 4 infringements before action was taken was lenient bearing in mind the number of problems he had found.

Mr Lordan said that he had made enquiries in relation to the vehicle insured by and “locked into” B & H Haulage and discovered that the insurance did not cover use by Kent Couriers Limited. Consequently, the vehicle had been uninsured during the time it was specified on the licence. A check showed that B & H Haulage Limited had authorisation for 17 vehicles with 17 in possession.

Keith Phipps adopted the representations that had been submitted in advance of the hearing and accepted that the systems had fallen below what was expected in terms of monitoring and control. He had experienced some family problems and had “taken his eye off the ball”. During the period of lockdown, he had been contacting the administrator by telephone and going to the office a few times each week. The director of B & H Haulage was a friend and had loaned him the vehicle in question without charge. He had thought the vehicle was insured and was surprised when he learned it was not. The vehicle had been used for the work of Kent Couriers although the driver might have been from B & H on occasions. A transport consultant Clive Glaze had been employed for several years and had downloaded the tachograph records from time to time. Mr Glaze was going to attend more regularly in the future and the company now had their own card for downloading.

The infringements identified by Mr Lordan had not been brought to his attention by either Mr Glaze or Mr O’Neill and he had been surprised when they were highlighted. He accepted that a lot of areas needed improvement including the disciplinary policy. The information sent to Mr Lordan before the public inquiry had been collected by him and Mr O’Neil and sent by the office administrator.

Anthony Baldock told me he was the transport planner and his role included devising the routes to be followed and rest periods that should be taken by the drivers. He now understood the breaks required under the Working Time Directive and would incorporate them into the planning.

Peter O’Neill said that he had been the transport manager since the inception of the licence and up until recently had been working for 2.5 days per week in that role. During the period of lockdown, he had been caring for his elderly mother who was vulnerable and shielding. His contact with the operator had been via telephone only and he now realised he could not do the job properly in that way. He also realised that he needed update training and this had now been taken. He was confident that with assistance he would be able to put everything right in next few months. He will be leading on dealing with infringements and agreed that the policy needed to include wording to cover situations when more serious infringements occurred as well as just the totals. When the request to send data to Mr Lordan before the inquiry had been received, he had gone into “panic stations” and this explained the inadequacies in what was sent. If he lost his repute, he would be out of a job.

Ms Dart submitted that the call up letter to the inquiry had been a “wake-up call” for the operator and several new procedures have been introduced as a result. The problems experienced because of the pandemic had hampered the operator and transport manager and this had exacerbated the situation. She said that the level of compliance with drivers’ hours requirements had improved and sent me some recent data confirming this. A significant period of suspension will put the operator out of business in the same way as a revocation. Undertakings of an audit and the engagement of a transport consultant more extensively than at present were offered and the appropriateness of disqualification, if revocation was ordered, addressed.

7. Findings and Decision

This is a case which is at the upper end of the scale in terms of seriousness. There have been breaches of Sections 26 (1) (c) (ca) and (f) of the Goods Vehicles (Licensing of Operators) Act, 1995. The record of the operator is not good having previously attended a public inquiry when a curtailment was ordered. The evidence presented by Traffic Examiner Lordan is illustrative of an operator who was paying scant regard for the regulatory system requirements at the time the investigation was undertaken. This impression is made worse by the fact that the data provided in advance of the public inquiry still showed significant gaps and failings. Whilst I accept that some of the issues may have been made worse by difficulties through the pandemic it is obvious to me that the failings pre-dated this period. I believe that Mr Phipps and Mr O’Neill were negligent and lacklustre in their approach and left matters to office staff who did not carry the legal responsibility for compliance and to drivers, some of whom, said that they had no training and had not had infringements brought to their attention. I am particularly concerned about the use of the vehicle owned by B & H Haulage Limited whilst it was uninsured. This aspect was clearly not checked properly and could have had very serious consequences. This lack of attention to important detail is repeated in the failure to properly check on driving licence entitlements of some drivers. On the positive side I have seen evidence of new systems and procedures and training has now been provided. The very recent print-out of drivers’ hours infringement reports shows improvements.

As a result of these breaches and my findings detailed above, I have to ask myself the question set out in the case of Priority Freight Limited & Paul Williams i.e. how likely is it that this operator will operate in compliance with the operator’s licensing regime? In other words, can the operator be trusted going forward? At the previous inquiry, this question was answered as a positive and yet the operator has failed to maintain the standards expected again. This case is finely balanced, and the operator and transport manager are on the cusp of losing repute and revocation/disqualification following. The failings of the operator in the past cannot be ignored when considering the likelihood of compliance in the future. It is only the recent efforts that have been made to improve that allow me to pull back from revocation, but I emphasise again how close this case has come to that order being made.

Having decided that I am able to allow the licence to continue I nevertheless need to reflect the level of seriousness by taking regulatory action and order an immediate curtailment in authorisation to 11 vehicles which is the current level in possession. Additionally, I order a further curtailment to 8 vehicles for a period of 21 consecutive days commencing on the 26 July 2021. The repute of the operator is severely tarnished. I believe these orders to be proportionate and necessary to reflect the seriousness of the case. The operator should notify the Office of Traffic Commissioner of the details of the 3 vehicles to be curtailed within 7 days of receiving this decision.

I also direct that the following undertakings will be accepted. Firstly, that a transport consultant shall be engaged from August 2021 for not less than four days per month for the next six months to aid in ensuring full regulatory compliance is achieved by the operator and drivers. Secondly an audit of the transport operation shall take place in December 2021 – the full wording of this undertaking will be sent to the operator with this decision. If a transport consultant conducts the audit, this must be a different person to the one providing the ongoing assistance. A copy of the audit will be sent for my attention, and I anticipate a return to public inquiry if there are still significant failings.

As regards the transport manager Mr O’Neill I direct that his repute is severely tarnished. He was frank in accepting his failings which goes to his credit and seemed to accept the need to make wholesale improvements in how he undertakes his role. I asked him if he thought he had the skills and knowledge to make the improvements required and he was hesitant in answering. I have given him the chance to do so in this decision, but he will need to consider resigning from the role if he is unable to achieve what is necessary.

John Baker

Deputy Traffic Commissioner

13 July 2021