Decision

Decision for L&P London Services Limited (OB2039043) and Transport Manager Laurentiu Iulian Branescu

Published 24 June 2022

0.1 In the North East Traffic Area

1. Written Decision of the Traffic Commissioner

1.1 L&P London Services Ltd OB2039043

1.2 Laurentiu Iulian Branescu – Transport Manager

2. Background

L & P London Services Ltd, (“the operator company”), is the holder of a Standard Operator’s Licence authorizing 7 vehicles and 7 trailers issued on 14th January 2021.

Laurentiu Iulian Branescu is the sole director of the operator company and the designated Transport Manager. In January 2021 the operator failed to attend a New Operator’s Seminar organized by DVSA. He failed to attend two subsequent appointments in May and August 2021.

On 9th November 2021 DVSA Traffic Examiner, Jennifer Pullen, (“TE Pullen”), conducted a Traffic Investigation. The investigation outcome was “unsatisfactory”.

On 26th January 2022 DVSA Vehicle Examiner, Neil Ridge, undertook a Desk Based Assessment of maintenance arrangements and records. The assessment was deemed “unsatisfactory”.

The operator was called to attend today’s public inquiry by a letter dated 7th April 2022. The letter set out in full the concerns, the potential grounds for action and the supporting evidence.

3. The Public Inquiry

The director/transport manager attended the inquiry represented by Ms Laura Hadzik, Solicitor. He was assisted by Ms Irina Toiska, a Romanian interpreter.

TE Pullen attended the hearing via remote video-call.

I heard evidence from TE Pullen, Mr Branescu and representations from Ms Hadzik.

I considered audit reports from transport consultants, Andrew Coe and Graham Robinson, dated 6th November 2021 and 23rd May 2022, respectively.

TE Pullen referred to her supplementary Section 9 statement commenting on tachograph/driver records produced for the period 31st January 2022 – 1st May 2022. TE Pullen was unable to say if there was an improvement but there were still concerns over some distances driven “off-card” and some very quick change-overs which did not seem to allow sufficient time for proper driver vehicle checks.

Mr Branescu gave evidence regarding his employment history and the background to the current operator’s licence. He accepted responsibility for the shortcomings on the licence and said it was “my mistake”. He outlined the measures taken since the investigation and addressed the consequences of potential regulatory action for the operator company and himself.

4. Findings

The DVSA evidence was not disputed, and I adopt the report of TE Pullen at pages 59-69 of the brief and the findings of the DVSA Maintenance Desk Based Assessment at pages 96-110 of the brief, for the full catalogue of shortcomings on the licence. The traffic examiner assessment score of 24 (where 2 points are given for mandatory requirements not met, and 1 for some systems in place) is exceptionally high and 8 of the 12 maintenance assessment areas were marked unsatisfactory.

The Traffic Examiner assessment highlighted:

• The Transport Manager showed partial control over operations.

• The Operator had not attended a New Operator Seminar;

• Drivers were not provided with appropriate training, particularly in relation to load security, and training was not recorded;

• There was no system in place to monitor driver CPC training or driving licences;

• The Operator had no driver in employment for over 6 months;

• There was an insufficient system in place to plan journeys/duties;

• Digital download frequency and analysis was unsatisfactory, it was found there was a lack of a system in place to manage vehicle or digital driver card downloads. It was also disclosed the 90 day download limit had been stretched in the past;

• There was no effective disciplinary system in place;

• Infringement reports were not printed after each download;

• There was an ineffective system for managing and storing working time directive records;

• There was an ineffective system for managing vehicle tests, insurance, tax etc;

• the Operator was in possession of 2 vehicles and 3 trailers, despite only 1 vehicle specified on the licence at the time;

• No documentation was stored at the Operating Centre, and vehicle keys were stored in lock boxes attached to the vehicles.

It was noted that prior to TE Pullen’s Traffic Investigation, an independent audit was completed on 6 November 2021 by Andrew Coe, the overall compliance result was 47% with ‘drivers hours and tachos’ scoring just 8% whilst ‘vehicle maintenance’ score was 81%. Mr Coe identified similar issues as outlined below:

• No procedure in place for vehicle unit download;

• No driver records were available. Driver licences were not checked in line with guidelines;

• Missing mileages were recorded on TachoMaster, but were not analysed;

• Infringement reports were not being downloaded and managed with the drivers;

• MOT’s were not filed accurately;

• Drivers did not complete a working time directive declaration, working time directive was not effectively managed;

• There was no driver training.

Further compliance concerns recorded included;

• The wall planner was not projected a full 6 months in advance;

• Rectification for defects were not recorded in driver defect books, inspection records were not signed as roadworthy;

• The time on the tachograph was not being covered during the service maintenance check or driver checks;

• Working Time Directive times were not input into the tachograph;

• There was no written procedures in place and staff were unaware of guidelines.

On the 23rd December 2021 the operator company was requested to provide vehicle and maintenance documentation for 2 specified vehicles. The operator submitted records for 2 different vehicles which revealed the following shortcomings:

• Suitable documentation was not provided in order to enable a satisfactory assessment of the licence;

• Only 2 trailers were specified on the licence. However there was a third in possession;

• No maintenance records were provided for the requested vehicles, and no evidence of first use inspections. 8 roller brake records were provided for 2 trailers, though these were unladen.

• The safety inspection analysis showed 27% of inspections were completed without a brake test, or had unladen brake tests. 47% of inspections found driver reportable defects with no corresponding driver defect reports. 40% of inspections found dangerous defects i.e. tyres cut to cords, ABS faults and 47% of inspections exceeded the specified 6 weekly interval;

• A forward planner was evidenced, though no corresponding documents were provided for assessment.

• No evidence of an effective VOR system or safety defect and recall system was found. VOR plates were in use and drivers notified via email, though there was no further evidence of how vehicle use is prevented;

• Mr Branescu outlined the procedure for reporting defects, though no evidence was provided to assess defect reporting.

• There was no system in place to audit driver walk round checks;

• The maintenance contract in place with the maintenance provider was unsigned. There was no evidence of maintenance facilities and no test history recorded.

• No evidence of system to monitor vehicle emissions.

• No evidence of sufficient wheel security and tyre management systems in place. Reliance was on the maintenance provider and wheels are checked weekly.

• Drivers do not handle their loads due to Amazon policy. Amazon employees load and secure freight. Drivers visually check to see if load is secure before the doors are closed. VE Ridge stated this should be the Operator’s responsibility.

• Driver handbook is given to drivers to outline procedures, however there was no evidence of driver training.

• The shortcomings indicated the Transport Manager had no control over the operations.

The operator company produced a further audit report from Graham Robinson, Transport Consultant dated 23rd May 2022. This report lacked detail and included a number of recommendations for further action which in my opinion should have been implemented following the November audit from Mr Coe.

The operator company/transport manager have patently failed to adhere to the undertakings signed up to when acquiring the licence just 11 months prior to the investigation. The level of non-compliance is across the board, covering vehicle maintenance and drivers’ hours compliance, and demonstrates a worrying disregard of the importance of the compliance regime to road safety. It also represents a total failure of the transport manager to comply with his professional duty to constantly and effectively manage the transport operations of the operator company.

At the conclusion of his evidence Mr Branescu was asked by Ms Hadzik about the potential consequences of regulatory action. Asked how many employees would lose their jobs if the operator company lost its licence, Mr Branescu was frank and open in stating, none. His drivers were self-employed contractors, not employees. Despite being aware of the recent strictures against LGV drivers, who were to all intents and purposes employees, being engaged on agency or contract for services terms, because of the weaknesses in control and management and the practice running contrary to HMRC guidance (HMRC Employment Status Manual 4210 - Particular occupations: drivers of commercial vehicles-general), he had continued to engage his drivers on this basis.

5. Considerations and Decision

As a transport manager Mr Branescu has demonstrated an inability and/or an unwillingness to effectively manage this operator’s licence. Language difficulties may pose a challenge for Mr Branescu in the UK but I take into consideration that he should have been fully aware of the duties of a Transport manager from his relatively recent qualification in Romania which was in his native language. Similarly, when he completed the refresher training in the UK he had the benefit of his wife’s presence throughout to act as an interpreter.

I weigh in the balance such positives as I find for the operator company/transport manager:

• Co-operation with the public inquiry and, generally, with DVSA representatives.

• Willingness to engage a transport consultant to audit his transport operations prior to being called to public inquiry.

• Engagement of second transport consultant to audit records in May 2022.

• Absence of infringements on tachograph downloads for period 1st February 2022 – 30th April 2022.

• Production of a suite of documents covering driver responsibilities. However, the efficacy of these documents is seriously undermined by them being for “employees” as part of a standard Staff Handbook produced by Mr Coe. I have substantial doubts as to whether they have been incorporated into working practices as of this moment.

I have regard to the Priority Freight (T/2009/225) question; “how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime?”, and answer “highly unlikely” in view of the history of this licence and the scale of non-compliance so soon after grant. I determine that Mr Branescu does not have sufficient regard for the responsibilites he is aware of, and signed up to, when becoming the holder of an operator’s licence through his company and on undertaking the role of transport manager. In ignoring those responsibilities he has compromised road safety and secured an unfair commercial advantage over other compliant operators. The good repute of the operator company and of the transport manager must be forfeit by these findings.

Even allowing for language/interpretation difficulties, nothing in the content and manner of his evidence gave me confidence that he is a reformed character who can be trusted to operate and/or manage a compliant licence. The audit reports commissioned by the operator company have failed to prompt effective action and they seem to have been treated as ends in themselves going by the May 2022 recommendations reflecting many of the November 2021 findings.

I answer the Bryan Haulage question, “is the conduct such that the operator ought to be put out of business?” (Bryan Haulage (no.2) (T/2002/217)) in the affirmative, having regard to the level of non-compliance and limited genuine transformation.

In the circumstances, I consider it appropriate and proportionate to revoke the operator’s licence under the following provisions of the Act:

• i) Sec. 27(1)(a) – financial standing. Finances were insufficient for the current authorization and although, all other items being satisfied, a period of grace could have been considered for a reduced authorization, this ground is made out at the present time.

• ii) Sec. 27(1)(a) – good repute. The operator company has lost its good repute as a result of the shortcomings found in the evidence considered at the public inquiry.

• iii) Sec. 27(1)(a) & (b) – on finding that the transport manager is no longer of good repute, professional competence is formally lost.

• iv) Sec. 26(1)(e) – statement of intent not complied with regarding 6 weekly safety inspections.

• v) Sec. 26(1)(f) – undertakings not complied with, namely, to keep vehicles fit and serviceable, to observe the rules on drivers’ hours and tachographs and keep proper records, maintain records of an effective driver defect reporting system.

• vi) Sec. 26(1)(h) – material change. The operator failed to attend New Operator’s Seminar, failed to respond to DVSA Desk Based Assessment.

In making these findings I determine that the positive factors cited above fall fairly and squarely in the category “too little, too late”. However, they do show sufficient responsiveness to allow the operator company and Mr Branescu to avoid disqualification under section 28 of the Act. Clearly, any new application will need to be accompanied by a qualified, professionally competent transport manager and a commitment from the operator company to enact required measures. I give no commitment to delaying implementation of this decision to allow any application to be processed.

Whilst Mr Branescu possesses a Certificate of Professional Competence issued by the relevant authority in Romania, and is therefore “professionally competent” under the Act, I have considerable doubt as to whether the qualification was appropriately obtained in Romania. Mr Branescu stated in his evidence that he had been resident in the UK since 2008 and his work had all been in the UK since that date. The qualification was obtained during a short spell of medical treatment in Romania.

The Senior Traffic Commissioner’s Statutory Document No. 3 – Transport Managers states, “Under Article 8(2) 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”.

Having found that Mr Branescu has lost his professional competence as a result of the loss of good repute as a transport manager I do not make a definitive finding with regard to his “Certificate of Professional Competence” obtained in Romania (Matthew Reynolds (2016) UKUT 159 AAC).However, as required by paragraph 16 (2) of Schedule 3 of the Act, he is disqualified from acting as a transport manager, and that disqualification shall be indefinite.

Under paragraph 17 of Schedule 3, (as per the 2022 Amendment Regulations), should he seek to re-enter the industry as a transport manager whilst normally resident and working in the UK, he will need to re-take his Certificate of Professional Competence in the UK.

Revocation of the operators licence and disqualification of the transport manager will come into effect on 15th July 2022 at 00.01.

Anthony Seculer

Deputy Traffic Commissioner

14th June 2022.