Decision

Decision for Kent Traction Services Ltd (OK1144360)

Published 30 December 2020

South Eastern and Metropolitan Traffic Area

Decision of the Deputy Traffic Commissioner

Public Inquiry heard at Ivy House, Ivy Terrace, Eastbourne on 27 October 2020

1. Background

The operator Kent Traction Services Limited is the holder of a standard national licence granted following a public inquiry on the 21 September 2016. The application was for authorisation to eight vehicles which was granted but an immediate curtailment to four vehicles was ordered. The decision included a provision that the curtailment could be cancelled or amended if a satisfactory independent audit were provided. No such audit has ever been produced and the current authorisation remains for four vehicles. At the time of this public inquiry in 2016 the sole director was Colin Wainwright and the transport manager Paul Matherton.

The sole director of the company is now Grace Shilling having been appointed in place of previous director Colin Wainwright on the 19 October 2016.The transport manager is Belinda Bell who was appointed on the 10 January 2017.

A second public inquiry took place on the 27 September 2018 following a high number of prohibitions issued in respect of the authorised vehicles. The decision of that inquiry was to suspend the licence until such time as a laden brake test on a nominated vehicle had been conducted and shown a pass, and training had been completed by Ms Shilling and by the transport manager Mrs Bell. The suspension was lifted on the 19 November 2018 when the conditions had been met – Mrs Bell was issued with a warning as transport manager.

The DVSA conducted a Desk Based Assessment in relation to the operator dated 18 March 2020 following an application to change the operating centre. Requests for further information as to the proposed change of operating centre were not responded to and the DVSA assessment was marked as unsatisfactory following an inadequate response to a request for information. No records were supplied and no explanation given for any systems and processes in place. A notice proposing to revoke the licence was issued and Mrs Bell responded on the 16 June 2020 saying that she was unclear what information was required and requested a public inquiry. It was stated that no vehicles had been operated since July 2019 apart from one vehicle which had been on short term hire.

During 2019/20 there was also an ongoing investigation being carried out by the DVSA in relation to possible links between this operator and businesses operating from Unit 10 Detling Aerodrome in Kent which is the operating centre of this operator. The concerns were that various operators based there had been using a “pool” of drivers and there was a question over whether each operator was truly independent from the other or there was a single source of managerial control across all the operators. On the 24 June 2019 Miss Shilling sent tachograph data to the DVLA which showed that the same drivers had been driving vehicles specified by this operator, Matrix Logistics UK Limited, Adams Haulage (Kent) Limited, and Colin Wainwright Limited. Enquiries also revealed that Miss Shilling was a director of Colin Wainwright Limited from 14/7/17 until 31/7/19 and Mrs Bell was transport manager from 10/01/17 to 15/07/19. That licence had been discontinued on the 7 May 2020 when the continuation fee was not paid.

After the DVSA report relating to the “pool of drivers” was prepared it was discovered that the landlord of the property at Detling Aerodrome denied giving the operator and the other companies operating from that location permission to locate there. The Traffic Examiner carrying out the investigation also uncovered the fact that the nominated maintenance provider for the operator appeared to have ceased trading.

As a result of all these issues the operator was called to public inquiry and by that date the licences for the other operators listed had been revoked (Adams Haulage Limited and Matrix Logistics Limited) or discontinued (Colin Wainwright Limited).

2. The Public Inquiry

Miss Shilling attended the public inquiry with the transport manager Mrs Bell, and they were both unrepresented. The Traffic Examiner who had conducted the investigation was unable to attend through ill health and Senior Traffic Examination Lakeland kindly assisted in his absence.

3. Evidence

Senior Traffic Examiner Lakeland confirmed the content of the original report prepared by Mr Martin. He said that the operator had been asked to send additional data prior to the inquiry for analysis and this had been received very recently. He had been unable to prepare a written report but summarised the information which comprised data for two vehicles and several drivers for the period between 16 June and 31 August 2020. He said that the data was “sporadic” and raised more questions than answers. There were 44 occasions when vehicles were driven without cards ranging in time between 4 minutes and 5 hours, mode switch offences had occurred (some of which he had excluded), driving times were exceeded on occasions and there were working time directive breaches. One driver Mick Shilling had recorded domestic hours only for his driving. He had not seen any evidence of the infringements being dealt with. I referred Mr Lakeland to the prohibitions issued on the 10 June and 1 September 2020 for a variety of maintenance faults and he added details of a further prohibition issued on the 23 September for a driver not having a valid CPC qualification.

Mrs Bell told me that the background in this case was linked to the fact that Colin Wainwright is the uncle of Miss Shilling and he now lives in Spain. When he gave up his business Miss Shilling and a Ben Adams were joint directors of Colin Wainwright Limited but early in 2019 Mr Adams left without notice. Mrs Bell believed this to be because Miss Shilling had discovered that he was not running the business or the operator’s licence properly. That licence was not retained, and the current licence was fully operative from June 2020. She said that her own situation had been overshadowed by the illness of her husband diagnosed with cancer in 2019 and his death as result of Covid infection this year.

Miss Shilling told me that she obtained work for the company, looked after the financial side of the business, and helped in the office. Two vehicles only were operating, and these were kept at Unit 10, Detling Aerodrome. An e mail was produced from a company blu-3 (UK) Limited who said that they had allowed the operator to use 4 parking spaces at that address and this arrangement would continue until 30 November 2020. Miss Shilling confirmed when questioned by me that neither the company Colin Wainwright Limited nor any of the other named operators apart from Kent Traction Services Limited had been given similar permission.

In relation the maintenance arrangements Miss Shilling said that the provider was in fact a company run by her father Michael Shilling and this was the same arrangement as previously albeit that he had sold one company and set up another undertaking the same work. Her father also did some driving for the company but was only required to complete “domestic records” for that type of work.

Mrs Bell said that one of the previous drivers who had picked up infringements had been sacked, others were being trained and the main tachograph issues were related to mode switch use. The maintenance related prohibitions were a result of the use of the vehicles for “scrap work” which resulted in them being treated very badly when scrap metal was being loaded. This type of work had been discontinued and they were now undertaking local grab work only. She alluded to the previous arrangements when other operators had been operating with a “pool of drivers” and said that separation between the employment of the drivers was controlled by virtue of the work being undertaken.

4. Findings and Decision

Bearing in mind the background and the fact that a public inquiry was held in late 2018 it is surprising and disappointing that the initial request for information was met with an inadequate response and when information was received very late, it identified a range of issues and questions over the tachograph compliance regime. It is also true that the change of maintenance provider was not notified and that Miss Shilling accepts that she was a joint director and Mrs Bell transport manager of the operator, Colin Wainwright Limited, which operated from Unit 10, Detling Aerodrome when they had not been given permission to do so by the landlord, or other tenant. The issues concerning the “pool of drivers” are also in the background.

I have genuine sympathy for Mrs Bell and the tragic circumstances that led to her husband’s death. The timeframe links to the lack of response from the operator to the DVSA and the more recent compliance failings identified. Unfortunately, this factor highlights for me a further concern. The responsibility for ensuring compliance rest jointly with the director and the transport manager. This basic principle is endorsed by the fact that the Traffic Commissioner required training to be undertaken by Miss Shilling as well as Mrs Bell after the public inquiry in 2018. The distinct impression I got, and conclusion I have reached, is that Miss Shilling has delegated responsibility fully to Mrs Bell and when she was unable to undertake her duties very little happened. This conclusion is corroborated by the lack of response to the DVLA earlier this year and the gaps in what information has been provided subsequently.

When I asked Miss Shilling direct questions at the inquiry she deferred to Mrs Bell where possible and appeared vague in respect of some aspects of the operation e.g. how often she was in contact with the drivers. Mrs Bell said Miss Shilling is shy, but I suspect her reticence goes beyond this. I was told that she has another business and that she takes no salary from Kent Traction Services, this may explain her approach or it may be that her father who maintains the vehicles and drives one of them on occasions is the main beneficiary of the business. These possibilities are not for me to decide but the conclusion I have reached as to her involvement and attitude are factors in my decision.

In deciding on the seriousness of this case I need to balance the negative aspects of the case with any positive features I can identify. I have struggled to identify many positives. There is no evidence to show that the compliance levels have been at the standard required since the licence was granted. I saw some maintenance inspection sheets which did demonstrate regular maintenance being caried out from May 2020, but this is offset by the prohibitions issued in June and September 2020 which included driver detectable and safety critical faults. I invited Mrs Bell to identify a time when compliance had been up to standard and she struggled to do so. I conclude that the seriousness level in this case is serious to severe.

There have been breaches of Sections 26 (1) (c) (ca) and (f) of the Goods Vehicles Act, 1995. As a result of these breaches and my findings detailed above I have to ask myself the question the 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? After careful consideration, my answer is negative. Whilst Mrs Bell gave me assurances as to future compliance, I am sure similar assurances were given at the last hearing. Based on what I have found, if Mrs Bell is unable for any reason to undertake her duties, I believe that compliance levels will be even lower. When she has been present serious deficiencies have still been identified.

I have concluded as a result of the above that this operator deserves to be put out of business and I order revocation of the licence under Section 26 of the Goods Vehicles (Licensing of Operators) Act 1995 with effect from the 1 December 2020 so allowing time for the business to be run down. I do not order a disqualification against Miss Shilling because I do not believe it is appropriate in this case. However, if Miss Shilling applies again for a licence or to be a director of a company that does so, she will need to show a marked change in knowledge, attitude, and aptitude.

In relation to Mrs Bell I believe that her personal circumstances during this time were such that her culpability for the failings is reduced from what it would normally be. I am therefore taking the unusual course of allowing her to retain her repute as a transport manager, but this will be marked as severely tarnished bearing in mind the background and previous public inquiry. She will need to complete some refresher training if she wishes to apply to be a transport manager on any other licences and should expect to be able to demonstrate that the failings of this licence are not going to be repeated.

John Baker

Deputy Traffic Commissioner

2 November 2020