Decision

Decision for Lee Thomas T/A L Thomas Transport

Published 21 March 2023

1. DECISION OF THE TRAFFIC COMMISSIONER FOR WALES

2. PUBLIC INQUIRY HELD AT PONTYPRIDD ON 1 DECEMBER 2022

3. Lee Thomas T/A L Thomas Transport OG1074237

4. Background

The operator, Lee Thomas T/A L Thomas Transport holds a sole trader restricted goods vehicle Operator’s Licence authorising 2 vehicles, granted on 18 October 2007.

On 3 November 2021 the operator attended a Public Inquiry due to an unsatisfactory Driver and Vehicle Standards Agency (“DVSA”) investigation which found serious failings in the operator’s systems for maintaining a compliant operator licence. The hearing resulted in me issuing a formal warning to the operator in relation to the shortcomings found upon acceptance by the operator of the following undertakings being attached to the licence:

An Operator Licensing Awareness Training Course (OLAT) to be attended by Mr Lee Thomas by 31 January 2022 with the Certificate of Course Completion to be sent to the Office of the Traffic Commissioner in Caernarfon within 14 days of completion; and

The operator will arrange and independent audit report to be carried out by the RHA, Logistics UK, or other suitable independent body, by 30 June 2022. The audit will assess the systems for complying with maintenance, drivers’ hours, and working time directive requirements and the effectiveness with which those systems are implemented. A copy of the audit report, together with the operator’s detailed proposals for implementing the reports recommendations, must be sent to the DVSA and the Office of the Traffic Commissioner in Caernarfon by 14 July 2022.

The operator agreed to the above undertakings. We discussed in detail what he needed to do to comply with the undertakings and Mr Thomas fully accepted that he needed to undertake some training in operator licence requirements and the OLAT course would provide that. He also clearly understood that the audit needed to be arranged by him. The implications of failing to adhere to the undertakings were explained at the hearing, and also clearly set out in the Decision letter dated 4 November 2021.

Neither of the undertakings was complied with, despite repeated reminders and correspondence between OTC staff and the operator (fully set out in the Public Inquiry Brief).

Due to the failure to comply with the undertakings the operator was advised by letter of 21 July 2022 that I proposed to issue a direction under s26(1) of the Act to revoke the licence but, in accordance with s29(1) of the Act, would not do so if the operator requested a public inquiry. The operator requested a public inquiry.

5. Hearing and issues

The Public Inquiry was listed for 1 December 2022 at the Office of the Traffic Commissioner for Wales in Pontypridd. Lee Thomas, the operator, attended with his wife, Elizabeth Thomas.

The public inquiry was called for me to consider whether there were grounds for me to intervene in respect of the licence held by Lee Thomas, specifically by reference to the following sections of the Act: 26(1)(b), s26(1)(e), 26(1)(f), 26(1)(h), 26(1), 26(6) and 28.

6. Evidence

The call up letter dated 25 October 2022 required the operator to send maintenance and drivers’ record documentation to the DVSA Vehicle and Traffic Examiners at least 14 days prior to the public inquiry hearing, and required the operator to submit evidence of financial resources to my office before 24 November. The letter clearly explained what was required by way of financial evidence.

I received a statement from Traffic Examiner Thomas in advance of the inquiry confirming that he was satisfied with the drivers’ records he had received from the operator. There was no statement from the Vehicle Examiner because the operator had apparently been unable to make contact with the Examiner despite emailing him on two occasions. I accepted that the operator had sought to do so, but he should have contacted my office in advance of the public inquiry to explain why he had failed to comply with the direction.

The operator did not submit evidence of financial standing, as requested, in advance of the public inquiry. He did produce some bank statements on the day of the inquiry, but these showed insufficient finances even for one vehicle. Mr Thomas stated that he did have a credit card and an overdraft facility but had not brought evidence with him. As at the date of the inquiry, he had still not arranged to attend an OLAT training course and his evidence was that he’d failed to do so due to illness and because he had been unable to find a course. Similarly, as regards the audit – he had been unable to arrange this for the same reasons and suggested that he was confused about what he was required to do. We again discussed what was required and my clerk gave assistance to Mr Thomas and his wife immediately after the hearing by directing them to various websites offering the relevant services. Mr Thomas assured me that he would be able to provide the evidence of financial resources within the next 14 days. He also confirmed that he would book onto an OLAT course and book a date for an audit, in compliance with the undertakings he gave me at inquiry last year, and would provide my office with proof of those bookings within 14 days.

I held my Decision in abeyance for 14 days – i.e. until 15 December 2022 – to give Mr Thomas one last chance to demonstrate intent to comply with the two undertakings and to produce evidence of his financial resources to demonstrate his ability to meet the requirement of s13D of the Act.

As of today, 22 December 2022, Mr Thomas has failed to produce the requested evidence – i.e. evidence of financial resources or proof that an OLAT course has been booked and an audit arranged.

7. Findings of fact

I have no hesitation in finding that Mr Thomas has breached the conditions of his licence by failing to adhere to the undertakings on the licence, namely the two undertakings given at the Public Inquiry in November of last year. Accordingly, I find that section 26(1)(b) and section 26(1)(f) of the Act are made out.

I find that there has been a material change in the circumstances of the licence holder, namely that Mr Thomas is no longer of the required fitness to hold a restricted licence by reason of his failure to co-operate with the regulator by way of breaching the undertakings and subsequently failing to comply with the assurances given to me at public inquiry that he would immediately book on to the relevant course and arrange the independent audit when afforded one last chance to do so. As the operator has failed to provide evidence of financial resources showing access to an average of £4,800 over the last three months, I also make a finding that it no longer holds the required financial resources to hold a restricted licence. Accordingly, I find that section 26(1)(h) of the Act is made out.

8. Considerations and Decisions in respect of Lee Thomas T/A L Thomas Transport

I am revoking the licence under sections 26(1)(b), 26(1)(f) and 26(1)(h) of the Act, having set out my findings above. The licence will be revoked with effect from 23:45 hours on 30 December 2022 to allow for a period of running down.

The operator licensing regime is based on trust. In NT/2013/82 Arnold Transport & Sons Ltd v DOENI the Upper Tribunal said:

“The Tribunal has stated on many occasions that operator’s licensing is based on trust. Since it is impossible to police every operator and every vehicle at all times the Department in Northern Ireland (and Traffic Commissioners in GB), must feel able to trust operators to comply with all relevant parts of the operator’s licensing regime.”

In view of my findings regarding Mr Thomas’ failure to comply with undertakings agreed to at the Public Inquiry in November 2021 I am entitled to question his fitness to hold a licence. The Upper Tribunal has held that a persistent failure to comply with undertakings, especially following a warning, may provide compelling reasons to conclude that there has been a loss of repute (2011/036 LWB Ltd). Upon acceptance of the two undertakings set out earlier in this Decision, Mr Thomas was given a formal warning in respect of licence compliance breaches found at a Public Inquiry last year. He failed to comply with those undertakings and requested a public inquiry to enable him to demonstrate compliance. He was unable to demonstrate compliance at the inquiry hearing on 1 December 2022 and I allowed one final opportunity for him to do so within 14 days. Despite being given another chance Mr Thomas has, yet again, breached the trust placed in him as an operator which is fundamental to the operator licensing system.

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 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 presented. Mr Thomas did submit some of the documentation requested to the DVSA (drivers records) and these were found to be satisfactory. However, his failure to comply with undertakings given to a traffic commissioner at public inquiry, and to continue to fail to do so, even after being given a further opportunity to put things right, goes to question of trust which is at the heart at the licensing regime. Such repeated failure, even after a warning and two appearances at public inquiry demonstrates that the operator is not of the required level of fitness to hold a licence. It is appropriate and proportionate to answer the Bryan Haulage question in the affirmative and I consider that revocation is the proportionate regulatory response, also having regard to the operator’s failure to demonstrate that he has sufficient financial resources to meet the requirement of s13D of the Act.

I have given serious consideration to whether Mr Thomas should be disqualified from operating in the future under section 28 of the Act. The guidance to which I must have regard reminds me at paragraph 62 (Statutory Document 10) that whilst there need not be an additional feature before a disqualification order it is made, it is not automatic. My balancing exercise for revocation is relevant. However, I note and give some credit to the operator for changes that he did introduce following the DVSA’s initial intervention and I note that the DVSA evidence for the latest inquiry did not flag any concerns. In not making an order for disqualification I acknowledge that. This may allow the operator to return to the licensing regime should he wish to do so, but it will require a different approach to compliance.

Victoria Davies

Traffic Commissioner for Wales

22 December 2022