Decision

Decision for Ktaurus Ltd – OF2014453 and Andris Asermanis – Transport Manager

Published 17 April 2023

0.1 In the Eastern Traffic Area

1. Confirmation of the Traffic Commissioner’s Decision

1.1 KTAURUS LTD – OF2014453 AND ANDRIS ASERMANIS – TRANSPORT MANAGER

2. Background

Ktaurus Ltd holds a Standard International Goods Vehicle Operator’s Licence authorising 5 vehicles and 5 trailers. The Directors are Kristine Asermane and is a person with significant control, as is the Transport Manager, Andris Asermanis, who has been listed on this licence since August 2018. He was apparently added as a Director on 29 May 2022 (after the call-up letter), although his appointment has been backdated to 15 May 2022 on the Companies House register. Written representations put me on notice that Mr Asermanis had been appointed as a director of the Company. There is a history of the directorship alternating.

There is one Operating Centre at Harwich Transport, West Dock Road, Parkston CO12 4SL. Preventative Maintenance Inspections were said to be carried out by a David Woodhouse at 76 Basepoint Centre in Ipswich and Manchetts at 6-weekly intervals. Mr Woodhouse had been removed by the date of the second hearing. The operator intends to rely on Manchetts, Chassiscab and Ford & Slater. Written representations suggest that the operator undertakes freight haulage work for clients such as DHL (no longer) and Maritime Transport.

Mr Asermanis was previously a Director, from 30 October 2018 to 27 May 2019 and again between 25 February 2021 and 17 August 2021. Ms Asermane had resigned between the two latter dates and was re-appointed on 17 August 2021. The operator failed to notify the first period of appointment.

Mr Asermanis was director of R.J and Suns Transport Ltd between 4 June 2020 and 28 February 2021. That company’s business was described as ‘freight transport by road’ although there is no record of an operator’s licence.

The operator lodged an application on 17 January 2022, seeking to increase authority to a total of 10 vehicles and 10 trailers. That application was later amended to 8 vehicles and 8 trailers. Written representations suggest that this was to realise a business opportunity.

3. Hearing

The Public Inquiry commenced on 27 June 2022, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was present in the form of Andris Asermanis, Director, and Transport Manager, represented by Richard Wadkin of Pellys Transport and Regulatory Law. It went part heard to 24 August 2022.

4. Issues

The public inquiry was called at the request of the operators and following notice that I was considering grounds to intervene in respect of this licence and specifically by reference to the following sections of the Goods Vehicle (Licensing of Operators) Act:

• 26(1)(b) – breach of the condition to notify matters going to professional competence.
• 26(1)(e) - statements of expectation relating to the Transport Manager and to comply with conditions.
• 26(1)(f) - undertakings (vehicle to be kept fit and serviceable, driver defect reporting, complete maintenance records, drivers’ hours, and tachographs)
• 26(1)(h) - material change.
• 27(1)(a) - whether the licence holder is of good repute, has the appropriate financial standing and is professionally competent.
• 28 – disqualification.

Mr Asermanis was called in his own right to determine whether I should make a direction under section 27(1)(b) preventing him from relying on his Certificate of Professional Competence and by reference to the requirements of Schedule 3.

At the request of the operator (page 213) I am also to consider a variation application. I remained to be satisfied as to section 17, and specifically by reference to the following sections of the Act:

• 13A(2)(b) – good repute
• 13A(2)(c) – financial standing
• 13A(3) - whether the transport manager can exercise continuous and effective management of the transport activities considering the additional vehicles it has requested.
• 13C(2) - whether the licence holder has satisfactory arrangements to comply with the law regarding drivers’ hours.
• 13C(4) - whether the licence holder has satisfactory facilities and arrangements for maintaining the vehicles in a fit and serviceable condition.
• 13D - whether the licence holder has sufficient financial resources to maintain vehicles in a fit and serviceable condition.

I permitted that application to be withdrawn during the second hearing when it emerged that Mr Asermanis had been resident in the United Kingdom since at least 2011. In taking him through the requirements of Schedule 3 and in particular paragraph 14A, he very frankly admitted that he had decided to take the examinations to obtain a Certificate of Professional Competence in Latvia because it was cheaper and in his first language. This had not apparently come to light during his application to be appointed as Transport Manager on this licence.

Under Article 8(2) of Regulation (EC) 1071/2009 (with the equivalent having been retained into United Kingdom law following withdrawal from the European Union, the examination must be sat in the Member State in which the holder has their normal residence or, the Member State in which they work. A traffic commissioner is unlikely to be able to accept a qualification in another Member State where they do not normally reside or work:

2.The persons concerned shall sit the examination in the Member State in which they have their normal residence or the Member State in which they work.

‘Normal residence’ shall mean the place where a person usually lives, that is for at least 185 days in each calendar year, because of personal ties which show close links between that person and the place where he is living.

However, the normal residence of a person whose occupational ties are in a different place from his personal ties and who, consequently, lives in turn in different places situated in two or more Member States, shall be regarded as being in the place of his personal ties, provided that such person returns there regularly. This last condition shall not be required where the person is living in a Member State in order to carry out a task of a definite duration. Attendance at a university or school shall not imply transfer of normal residence.

The operator was not able to satisfy me as to the ability to rely on the relevant Certificate of Professional Competence. As that did not form part of the notice to these proceedings, I proceeded to consider the regulatory matters, which had been identified. That issue remains to be addressed outside the determination at this Public Inquiry.

The operator was directed to lodge evidence in support by 13 June 2022, including financial, maintenance and other compliance documentation. Bank statements were lodged in advance and finance was found to be sufficient for the current authority and to support the variation application.

5. Summary of Evidence

A DVSA encounter on 30 September 2021 with vehicle FJ67 ZDU, which was being driven by Janis Nordens, suggested that the vehicle had been used on 17 September 2021 without a driver card inserted from 11.22 to 21.57. Traffic Examiner Susan Lee reports (pages 56 to 57) that the vehicle had travelled 484km at an average speed of 74.5 kmph or 46 mph. When the DVSA examiner contacted Andris Asermanis, he gave various reasons and appeared to change his account.

Traffic Examiner Catherine Payne arranged to visit the operator on 16 December 2021 (pages 68 to 83), when Mr Asermanis was present. She recorded: driving licences not checked at quarterly intervals (page 77), training was found not to be entirely effective (limited to induction), no system of checking records and data, infringement reports not printed or signed, no Working Time Directive systems in place, no disciplinary procedures.

The Transport Manager responded by email on 20 December 2021 (page 87) and advised that he would:

• check driving licences 6 monthly (later changed to quarterly),
• download Drivers’ cards each week,
• implement driver induction training with signed records,
• print infringements, to discuss driving hours and have records signed.

There was nothing to apparently explain why these shortcomings were permitted beyond Mr Asermanis’s earlier suggestion that he was worried that drivers would leave. Mr Wadkin refers to section 17 of Ms Payne’s report.

The Office of the Traffic Commissioner communicated my proposal to revoke on 25 March 2022 (page 98). Mr Wadkin provided representations (page 103) which also incorporated a request for a Public Inquiry. The written representation refers to mitigatory action, now taken:

• The operator draws driver’s hours infringement reports to the attention of drivers and obtains their signature to them to acknowledge the issues identified.
• The operator has signed up to the Road Tech “Checkmaster” system to automate the checking of drivers’ licences, with proposal documents supplied.
• The operator has signed up to Road Tech’s remote download tool to allow the remote downloading of driver cards and vehicle data units. Documentation was also supplied.
• Mr Asermanis had arranged to attend a two-day refresher Transport Manager Refresher Training course on 26 and 27 April 2022.
• Ms Asermane had arranged to attend a one-day Operator Licence Awareness Training course on 3rd May 2022.
• The operator had engaged support from transport consultants, GVL Management Limited (Transport Management Services) to assist.

The correspondence from the Office of the Traffic Commissioner specifically referred to the concerns attributed to Mr Asermanis and to his alleged use of 3 driver cards. Comments at paragraph 32 of the written representations were not pursued. For the avoidance of doubt, the wording of the letter explains the basis of my concerns and that I am “considering making a direction”.

The Office of the Traffic Commissioner wrote again on 14 April 2022 pointing out the correct date of 30 September 2021, which was the same event referred to at section 17 of Ms Payne’s report. The response of 22 April 2022 Mr Wadkin sent supplemental representations which suggested that “whilst the Company and Mr Asermanis hold a copy of the TEVR they do not hold a report or analysis concerning the allegation relating to 30 September 2021.” The approach to the investigation was more akin to criminal litigation. It was claimed that the operator could have checked the analysis, waiting for the enforcement authority to clarify which dates. Given the continuing requirements of the operator’s licence, I am unclear why that would have been the case. A slight difference in the TE Visit Reports was put to Ms Payne, as her conclusion regarding the incident of 17 September 2021, appeared to be missing from the version first sent to the operator. She also confirmed that she had corrected the advice on the regularity of driver licence checks.

I noted that Mr Wadkin’s response appeared to contradict the Traffic Examiner’s. It was claimed that Mr Asermanis was not reluctant to discipline drivers. It was suggested that Mr Asermanis had misunderstood the Examiner. Ms Payne accepted that she might have misunderstood his response. Whilst the date was subsequently corrected, I was concerned that Mr Asermanis had only then chosen to query the details relating to 30 November 2021. For that reason, I did not find the suggestion of an audit in 6 months to be particularly helpful.

In her evidence, Ms Lee confirmed the positive findings from the stop of the vehicle. Her initial conversations with Mr Asermanis were limited to the lack of card 13 days prior to the stop and to the circumstances where the vehicle was at the side of the road. There was no apparent issue with the current driver, but she did not find the responses to be particularly logical. He first suggested that the vehicle was in Ipswich for repair and then that the vehicle was being driven by the contractor. She accepted that Mr Asermanis was undertaking driver duties himself at the time.

Ms Payne referred to Andris Asermanis having and using 3 digital driver cards. The written representations suggested that Mr Asermanis was undertaking a driver assessment when he took the call. He was said to have been taken aback but tried his best to deal with the issues raised. Mr Wadkin indicated that Mr Asermanis sought an explanation from the driver, but the driver has consistently refused to communicate with him. I refer to the additional statement of the Traffic Examiner dated 21 June 2022. She refers to Card DB16138162089910 issued on 10 May 2018 with an expiry date of 17 May 2021, which was said to be faulty. This was replaced by DB16138162089920 issued on 24 April 2019, to expire on 17 May 2021. Mr Asermanis is said to have admitted to using the faulty card on 8, 9, 10 May 2021, which she cross references with the data obtained for FJ67 ZDU. In evidence, Ms Payne clarified that the document attached should have related to FJ67 ZDU, not ZDY, as was supplied. DB16138162089910 failed to record any activity on those three occasions. In evidence the Traffic Examiner accepted that there was minimal evidence of driving using the faulty card and no evidence of infringements involving Mr Asemanis. Ms Payne considered the additional raw data required to be lodged in advance of the Public Inquiry. She noted only two infringements, neither relating to this operator.

Mr Wadkin’s submissions referred to files of policy documents. Some of them are relevant to the matters raised in the correspondence of 22 March 2022 and following correspondence. In addition to Alcohol and drugs policies, declaration on the use of mobile phones, eye tests for drivers, there were method statements for un/coupling semi-trailers, dispensing diesel, LGV and van pre-use checks, load restraints and stowing of personal items, dis/mounting cabs, working at height, trailer mounted tail lifts and rear doors. There were also documents relating to vehicle safety, i.e., load security, retorquing, reversing and manoeuvring, driver walk round checks, authority to remove from service and to driver safety, namely Driver licence declaration, Drivers’ hours, casual driver declaration, other work declaration and Driver refresher training. I was informed that the operator had adopted the Road Tech “Check Master” driver licence checking system and saw examples, and the remote download facility provided by Tachomaster.

I was told that the operator has invested in professional support, training, and technological assistance. This was described as “continuous improvement”. Mr Asermanis apparently attended a two-day transport manager refresher course as well as an Operator Licence Awareness Training Course. Ms Asermane did not attend that latter course but is rebooked for 15 June 2022. At Annex 1 of his bundle, Mr Wadkin refers to the current DVSA assessment of the Operator Compliance Risk Score.

I was therefore interested to consider the operator’s maintenance documentation. My dip sampling at the first hearing suggested the following:

5.1 FJ67 ZDY

• 26 April 2022 – inspection by Manchetts (8+ weeks before the hearing) with a laden roller brake test: 52%, 34%, 10%. It records chip in windscreen, damage to spray suppression and warnings on the dash. The last driver defect report was Nil and dated 22 April 2022.
• 21 March 2022 – inspection with laden roller brake test: 49%, 33%, 10%. It records a reverse selection fault with a Nil driver defect report for the same day.
• 7 February 2022 – inspection (15+ weeks since the previous) with roller brake tests on 3 February 2022: 27%, 17% and 4% but insufficient load, and 7 February 2022: 48%, 30%, 10%. It records defective wiper blades, marker lamps, wing tops damaged (again) and a malfunction on the dash but a Nil driver defect report on the same day.
• 29 November 2021 – annual test
• 19 October 2021 – inspection (16+ weeks since the previous) with laden roller brake test: 47%, 31%, 9% but insufficient load. It records wing top split and defective lamps. No driver defect report available.
• 28 June 2021 – inspection with roller brake test but no printout: 64%, 32%, 33%. It records tyres worn and cut to the cords. No driver defect report available.
• 17 May 2021 – inspection with roller brake test: 47%, 30%, 9% but insufficient load. It records chip in windscreen, bulb blown, tyres worn and cut to the cords. No driver defect report available.

5.2 PO18 SRZ

• 22 April 2022 – inspection (9+ weeks before the hearing) with reference to a brake test but no evidence. It records a chip in the windscreen and warnings on the dash (again) but Nil driver defect report for the same date.
• 24 March 2022 – inspection with roller brake test: 56%, 39%, 20%. It records defective lamps and warnings on the dash but Nil driver defect report for the same day.
• 18 January 2022 – inspection (12+ weeks since the previous) with reference to a decelorometer and static yard test but a roller brake test on 21 March 2022: 49%, 33%, 18%. It records EML on the dash (again) but Nil driver defects for the same date.
• 20 October 2021 – inspection with roller brake test: 46%, 31%, 13% but insufficient load. It records defective driver door, crack in windscreen (again), and EML (again) on dash with no driver defect report available.
• 6 September 2021 – inspection with roller brake test: 50%, 35%, 10%. It records EML on dash with no driver defect report available.
• 12 July 2021 - inspection with roller brake test: 44%, 29%, 17%. It records crack in windscreen, and low oil levels with no driver defect report available.

I referred to the background to this operation. Annex 6 of the Operator’s Bundle is a contract with Maritime Transport, although that contract only refers to the transport of goods. In an email dated 23 June 2022, Mr Wadkin confirmed the following:

In relation to the request contained in the last paragraph of your email, I can clarify that the Company only hauls third party trailers and therefore does not have “trailer inspection records” as you have requested. The “DDRs” (by which I understand you to mean ‘daily defect reports’) which you have requested are contained in the information which was provided directly to you two weeks ago by the Company.

The DVSA Guide to Maintaining Roadworthiness assists operators by making practical suggestions for managing that type of operation:

5.3 3.3 Traction services and third-party trailers

Ensuring third party trailer roadworthiness can be problematic for the traction service operator. Usually for short-term use the trailer owner would be responsible for the routine maintenance of the trailer, including the safety inspection (SI). Under these circumstances, traction operators are reliant on the trailer owner to correctly carry out their own safety inspections within their stated frequency and complete any necessary repairs.

The traction operator is responsible for ensuring a thorough walkaround check of the tractor/trailer combination is carried out to establish it is safe prior to use. If defects are identified during the walkaround check, these should be rectified prior to use.

Traction operators would be expected to work with the trailer owners to ensure any trailers operated fall within the owner’s agreed SI frequency and that they are roadworthy. It is best practice for the trailer owner to provide evidence for the operator that first use checks and safety inspections have been undertaken and demonstrate there are no outstanding defects reported for the trailer.

There must also be a robust system in place to ensure defects identified during the walkaround check, or develop during use, are recorded and rectified before the tractor/trailer combination is operated in an unroadworthy condition.

Transport managers are also required by law to manage the transport operation continuously and effectively. The operator’s licence requires “satisfactory facilities and arrangements for maintaining the vehicles used under the licence in a fit and serviceable condition.” In that context, “vehicles” includes any trailer (including those from abroad) being drawn. An operator providing traction-only services must have trailer authority on that licence and must specify an inspection period. The trailer provider is likely to have its own inspection periods, which should be based in part on the age and characteristics of the trailers and work involved. The operator needs to satisfy themselves that it is appropriate. The operator must ensure that any trailer it operates meets the stated frequency for inspection. If the operator cannot satisfy themselves that a suitable assessment has taken place, then the operator must make their own assessment, as per the declared intervals. Representations confirmed the position that the main customer is Maritime Transport Limited. Annex 10 refers to a Statement for Subcontractors with Maritime, which refers to the inspection of trailers at 13-week intervals, not the 6 weeks declared on the Operator’s Licence, and which is the subject of a statement of intent. In the period between the two hearings, the operator amended the declared intervals for trailer inspections to 13 weeks to reflect the arrangements of its customer

An operator should therefore expect access to information which indicates the annual test expiry, the date of the last Preventative Maintenance Inspection, for trailers not fitted with electronic brake performance monitoring, date of last roller brake test and confirm that this was laden, contact details for reporting of defects. Drivers will require appropriate training on conducting an effective walk-around check including noting the trailer’s annual test expiry and confirming that it has been inspected and brake tested within the stated period. That training should be documented. Operators should refer to the current DVSA Guide to Maintaining Roadworthiness, the link to brake testing guidance and may be further assisted by reference to the IRTE publication: Roadworthiness: Industry Best Practice for third party trailer operators, Appendix VII includes a suggested “Co-operation request letter to trailer owner.”

As the hearing went part heard to a second date, I allowed opportunity for the operator to produce further documentation and representations be lodged no later than 14 days before the next hearing. I refer to those ‘supplemental submissions’ on behalf of both Ktaurus Limited and Mr Asermanis and the additional annexes (numbered 8 to 10), which Mr Wadkin sensibly sought to reduce in size in order that they might be emailed to the Office of the Traffic Commissioner.

The drivers are expected to check the condition of trailers using their defect report books and check the stickers on trailers which show dates relating to the maintenance and testing of trailers. I took some reassurance from the photographs provided before the second hearing showing the information communicated in the Maritime trailers. They variously show the servicing of a trailer (MGL2411) by RTJ Ltd on 18 May 2022 and another on 15 July 2022, MGL3017 by Northants Commercials Ltd on 13 July 2022, and MGLK2285 by TruckEast on 25 May 2022. I return to the standard of driver defect reporting, below, although I also noted the photographs of trailer damage, apparently supplied by the operator’s drivers relating to MGL2307 on 17 May 2022, MGL1331 on 18 May 2022, MGL2793 on 26 May 2022, NR18260 on the same date, MGL3056 on 27 May 2022.

The representations confirmed that driver defect reporting is not always in writing. A position which Mr Asermanis has apparently accepted. He proposed that he was competent to provide training to the drivers. I return to the driver status, below. There was a proposal to adopt an app based electronic system which allows a driver to take photographs of any defects. I record its implementation, below. As noted above, some photographs have been taken. The reports themselves are not easy to read and it is unclear what action was taken. The reports indicate that the defects were reported to Maritime for action.

Mr Wadkin referred to the issues exposed by my previous sampling of the maintenance documents. I am satisfied that those issues should have been evident to anyone with an interest in meeting the Operator Licence requirements. The representations are limited to those vehicles: FJ67 ZDY and PO18 SRZ. The operator did not apparently take the opportunity to review all its documentation and I refer to further inspection reports below. I was additionally supplied with the following:

5.4 FJ67 ZDY

• 20 July 2022 – inspection with roller brake test print-out: 60%, 18% or 42%, 11% with front brakes pads noted as low but not replaced. It also records damaged spray-suppression, which was not rectified, engine oil light showing on the dash but not addressed.
• 1 June 2022 – job report from Chassis Cab
• 29 December 2021 – inspection with roller brake print-out: 49%, 35%, 15% with worn first axle brake pads. It also records a chip on the windscreen (again), vehicle controller malfunction showing on dashboard (again) but not addressed.
• 29 November 2021 – inspection with roller brake print-out: 49%, 17% or 33%, 10%. It also records a chip on the windscreen (again), vehicle controller malfunction showing on dashboard (again) but not addressed.

5.5 PO18 SRZ

• 31 June 2022 – inspection with roller brake print-out: 52%, 33%, 18%. It also records the rear wing tops as split but not addressed.
• 21 February 2022 – inspection with roller brake print-out: 49%, 16% or 33%, 18%. It also records the EML warning showing on the dash (again) but not addressed.
• 3 December 2021 – inspection with roller brake printout: 55%, 34%, 17%. It also records the EML warning showing on the dash but not addressed.

Mr Wadkin goes on to suggest that brakes were tested with loads “in accordance with the recommended 50-65% range”. In evidence I was told that Manchetts had explained the brake reports to Mr Asermanis. I was told that the refresher course delivered by Logico on 3 May 2022 did not include brake performance testing. I was concerned by the suggestion in the representations that these requirements are ‘indicative’. Mr Asemanis was unable to confirm the source when I put to him the DVSA Guidance: Understanding your HGV or trailer’s brake test report. That guidance was published on 10 February 2022 clearly refers to at least 65% of its total maximum weight. It can only be tested unladen if it cannot be loaded due to design limitations or the type of load it normally carries. The representations indicated that Mr Asermanis had given instructions for roller brake tests to be conducted at every Preventative Maintenance Inspection and for those to be laden tests. Mr Asermanis apparently realised the need for explicit instructions on this issue, after the unladen test conducted on 1 June 2022. I was therefore concerned as to how he might manage this element of maintenance going forward. It was accepted that he needed to manage the outcome of the inspections more closely

Representations suggested that Ms Lee had not identified any mechanical issues with FJ67 ZDU on 30 September 2021, although she is a Traffic Examiner. The representations stressed that the telephone call with Mr Asermanis was unexpected, but the operator held him out as the person meeting the statutory responsibility for effective and continuous management of the transport undertaking. Some point was made about the recording of that conversation, but this is not a criminal jurisdiction.

Ms Payne confirmed that Mr Asermanis cooperated with her inquiries. I have attempted to record her further analysis of tachograph data for 1 December 2021 to 31 May 2022, with no identified issues. A copy of the correct document was provided at the first hearing and time afforded to the parties and Ms Payne confirmed the numbering of one of the driver cards which was confused by her earlier statement and accepted the explanation put to her on behalf of Mr Asermanis. Mr Asermanis explained that he had grabbed the wrong card, when he became aware of this, he destroyed it. It is regrettable that this did not occur before. There can be no excuse for a repeat.

It was accepted that there had not been sufficient checks of the infringement and other reports. That now occurs on a weekly basis. It was acknowledged that the operator had previously struggled to ensure regular downloading of the driver card and vehicle unit. The operator now has the facility to achieve that remotely, so the download will occur each day. The Tachomaster system is used to monitor Working Time Directive compliance. Mr Asermanis has a quarterly one-to-one discussion with each driver to include driver records, health and safety, reporting.

Improvements suggested in the operator’s response at page 71 of my bundle were confirmed. Mr Asemanis now has access to the Operator Compliance Risk Score produced by DVSA. The operator has adopted quarterly driver licence checks, apparently using the Tachomaster’s Checkmaster system. The system apparently requires the driver to consent on each occasion. Given the explanation of his approach to driver discipline, which concerned the Examiner, I was surprised by the driver employment status. It was suggested that the driver shortage had led Mr Asemanis to encourage compliance. I had been directed to the letter of 22 April 2022 to Driver Grebuns as evidence of his willingness to discipline drivers. On his own evidence Driver Sevenko may have failed to cooperate with him. There are 8 regular drivers, none of which are employed directly by the operator. It was suggested this was because they could not be guaranteed work and yet 4 to 5 vehicles are in work at least 4 days per week. I contrasted the reluctance to employ drivers with the written suggestion that refusal of the application might jeopardise the viability of the operation. The issue of driver control was the subject of comment in the Upper Tribunal decision in 2019/54 Bridgestep Ltd & Tom Bridge. That case concerned the status of so called ‘self-employed’ drivers but warned against a situation where the lack of control means that continuous and effective management cannot be exercised. Other operators looking at this arrangement might also be entitled to question the fairness. It transpired that drivers are obtained through two agencies, one of which Mr Asemanis was director for until March of this year.

I noted some very recent changes in the operator’s approach: the extension of the current app commencing in the week of the hearing, requires the drivers to confirm against each item of the driver walk round. Mr Asermanis suggested that it would require the driver to take a photograph of each item. It does not yet require the Driver to take a photograph of the sticker on the trailers, to which I have referred above.

6. Determination

I refer to the evidence summarised above. I have noted where circumstances have changed, but I am satisfied that I should record shortcomings by way of adverse findings under section 26(1)(f), in that the undertakings, relating to vehicles and trailers being kept fit and serviceable, to employ an effective driver defect reporting system, to ensure and retain complete maintenance records for the required period, and to ensure drivers’ hours and tachograph compliance, were not met. Those shortcomings do not amount to continuous and effective management and the statement to that effect, under section 26(1)(e).

It was suggested that the operator recognised that compliance required attention and that the Director set about addressing the comments of the Traffic Examiner. I was asked to attach weight to the systems and procedures which have been put in place and the investment in technology, which is evidenced in the Annexes to the representations. The operator has no history of prohibitions, fixed penalty notices, or other intervention. Annex 7 is provided as an illustration that Mr Asermanis is prepared to discipline drivers. That letter is dated 22 April 2022, but I have already recorded my concerns, which the operator is expected to address.

I admit to concerns at the general approach to my regulatory concerns. It is not appropriate for operators to take a passive approach to a Public Inquiry and its management, as the Upper Tribunal has made clear on numerous occasions. The reference in the representations refers to “credit”, which risks the impression that this Public Inquiry is a sentencing exercise. However, the Senior Traffic Commissioner’s Statutory Document attempts to describe the balancing of positive and negative factors. I have attempted to describe where previous shortcomings have now been addressed.

The commitment to quarterly driver licence checks will be treated as a statement of intent. I was offered additional assurances in the form of undertakings, which I have attached to the licence:

• All vehicles and trailers will undergo a laden roller brake test as part of every Preventative Maintenance Inspection, in line with current DVSA guidance. The results will be recorded, and the records will be kept for at least 15 months.

• The operator will arrange an independent audit to be carried out by the RHA, Logistics UK, or other suitable independent body, to assess the systems for complying with the operator licence requirements, and the effectiveness with which those systems are implemented, with particular emphasis on the findings in this document and the employment and control of drivers. The audit should cover at least the applicable elements in the annex to be supplied by the Office of the Traffic Commissioner. A copy of the audit report, together with the operator’s detailed proposals for implementing the report’s recommendations, must be sent to the Office of the Traffic Commissioner in Cambridge, no later than 6 months from the date of the final hearing.

The failure in management which led to those findings inevitably leads me to conclude that the Transport Manager’s repute is tarnished. The steps taken and the undertakings now provided, indicated that the case would fall within the MODERATE category. Mr Asemanis needs to ensure that he is capable of reading documents, such as the brake test reports prepared on behalf of the operator.

In his submissions and under the heading of ‘Impact of regulatory action on the Company’, Mr Wadkin referred to the variation application to increase authority. As he acknowledged, that presupposes that regulatory action will not be taken against the existing authority. The representations assert that “any action which limits the number of vehicles it can operate below the number sought, or currently operated, will have a limiting effect on the scope for development” without providing any of the actuarial evidence of the type suggested. In any event, for the reasons given above, that application has been withdrawn, so the impact cannot be that great. As per the Upper Tribunal in 2013/047 Dundee Plant Hire Ltd. As the Tribunal remarked: “Words of doom and gloom are easy to utter, and traffic commissioners hear them all the time. It follows that, in a case like this, assuming that the traffic commissioner might have been encouraged to impose a shorter suspension had she been determined to provide a lifeline, the actuarial evidence needed to be far more specific, comprehensive and compelling that it was.”

I was careful to explore the impact of regulatory intervention and the current trading environment. I was also mindful of the words of the Upper Tribunal in 2019/025 John Stuart Strachan t/a Strachan Haulage, which confirm the relevance of deterrent action: both for this operator and operators, who might be tempted to flout the system. The operator’s licence was suspended for a period of 5 days commencing at 23:45 on 24 August 2022.

R Turfitt

Traffic Commissioner

26 August 2022

Perfected 28 September 2022