Decision

Decision for Matthew Peter Carew t/a D G Carew & Son (OH1024975) and Transport Manager, Jemma Carew

Published 11 January 2023

0.1 In the Western Traffic Area

1. Written Decision of the Traffic Commissioner

1.1 Matthew Peter Carew t/a D G Carew & Son (OH1024975) and Transport Manager, Jemma Carew

2. BACKGROUND

Matthew Peter Carew is the holder of a standard national operator’s licence granted on 17 October 2003 authorising the use of eight vehicles and seven trailers. Six vehicles are recorded as being in possession. The operating centre is at Lantoom Farm, Dobwalls, Liskeard. The transport manager is his wife, Jemma Carew.

The operator was called to public inquiry in January 2019. My findings at that time were as follows:

• 5 vehicles were not “locked in” so the operator was unable to download data from the tachograph vehicle unit. It follows that no analysis of vehicle unit data had been undertaken. From my analysis, that covers a period of at least 18 months. On the balance of probabilities, the vehicle unit data from no vehicles would be downloaded in this period. In the alternative, the operator and transport manager knew that 5 vehicles had not been locked in and did nothing about it.

• Four vehicles have been operated without tax, three for two months and one for one month

• No tachograph record was kept by a driver supervising a learner

• One driver failed to use his card when starting work at 4 am. It is not known whether this hid a daily rest offence.

• There have been daily rest offences

• A trailer was used with an expired MOT

In relation to maintenance:

• Long gaps between trailer inspections

• Vehicle inspections slipped from 6 to 7 and 8 weeks

• PMIs not signed-off as roadworthy

• Defects repeated on subsequent inspections calling in to question whether they have ever been rectified

• Large numbers of driver reportable defects on PMIs

• Lack of instrumented brake testing

Financial standing was not met but seemed capable of being so. I granted a period of grace under Article 13(1)(c) for finances to be remedied. That is particularly relevant now as the law states that a period of grace for finance can be granted “in order to demonstrate that that requirement will again be satisfied on a permanent basis”. The effect of this clause is that a period of grace for finance can only be given once.

The licence was curtailed to nine vehicles and later voluntarily reduced to eight. An undertaking was recorded in relation to laden brake testing. The transport manager at the time was disqualified.

I received a maintenance investigation visit report from DVSA in August this year. It painted a bleak picture:

• PMI records were generally incomplete

• No effective VOR system

• Serious, immediately prohibitable, defects identified at PMI

• Vehicles with those defects driven back from the maintenance provider to the yard 5 miles away

• It appeared that no driver walk-round checks were taking place given the defects identified at PMI

• Of 10 DVSA encounters, 4 resulted in immediate prohibitions, one delayed. Two of those were annotated as signifying a significant failure of compliance systems

• During he fleet check, prohibitions were issued to both vehicles inspected:

KP57HBP:

Deep cut in tyre and cord or cords are exposed (I)

External mandatory mirror glass missing. No adequate view to the rear, side or front (as required) (I)

Engine Malfunction indicator lamp illuminated Indicating a fault (D)

Crane support leg retaining device missing and incapable of operating as designed (D)

Vehicle WK64AVO was also issued an immediate prohibition notice for tyre tread worn beyond legal limit

• The only recorded roller brake tests were at MOT

• Maintenance was generally not undertaken by the stated provider but by an unknown third party at the operating centre with insufficient facilities

• It appeared that the transport manager was not in control of maintenance

DVSA also submitted a traffic examiner visit report which had a mostly satisfactory outcome. The traffic examiner seems from his comments to be generally impressed with the improvements made by Mrs Carew as transport manager in relation to drivers hours and tachographs.

These reports caused me to call the operator to public inquiry on the following grounds:

under Section 26(1)(b) of the Act that the operator had failed to notify changes to maintenance arrangements;

under Section 26(1)(c)(iii) of the Act, that the vehicles or drivers had received prohibition notices issued by DVSA or the police;

under Section 26(1)(ca)(iii) of the Act, that the operator or drivers had received fixed penalty notices issued by DVSA or the police;

under Section 26(1)(e) of the Act, that statements made when applying for the licence were either false or had not been fulfilled in that vehicles appeared not to have been inspected by Doublebois Commercials;

under Section 26(1)(f) of the Act, that any undertaking recorded in the licence had not been fulfilled relating to keeping vehicles fit and serviceable and driver defect reporting;

under Section 26(1)(h) of the Act, that there had been a material change;

under Section 27(1)(a), that the operator may not be of good repute, of the appropriate financial standing or meet the requirements of professional competence;

under Section 27(1)(b), that the transport manager is no longer professionally competent or of good repute;

Mrs Jemma Carew was called to consider her good repute as transport manager.

3. THE PUBLIC INQUIRY

Matthew Carew and Jemma Carew attended unrepresented.

Financial standing was not met. I explained that the previous period of grace meant that revocation of the licence was now inevitable. That appeared to come as no surprise.

Matthew Carew told me that they currently had four vehicles on the road and were operating three due to the driver shortage. He had been out when the vehicle examiner came to carry out the visit. Jemma was at home with the children. The vehicle examiner had spoken to the now ex-fitter. The examiner came back two days later.

Inspections had been difficult to book at Doublebois so they had engaged the services of a mobile mechanic, Will Babbage. There was a pit at the operating centre which was inside a shed, there was lighting and hard standing. Mr Babbage now visited every six weeks and inspected the full fleet. If defects could be rectified whilst he was still on site, then he would sign them off and sign the roadworthiness declaration. If not, they would be rectified by the in-house fitter but not signed off until Mr Babbage attended the next time. This accounted for why inspections carried out in September were not signed off until October. The vehicle was in-service meanwhile.

The plan was to sell the fleet and the contract. The couple described difficult personal circumstances. Mr Carew might want a licence as an owner/driver. Mrs Carew had no immediate plans to use her CPC in the future but wished to keep it.

I closed the hearing and indicated that I would allow the licence to run for a period to allow for a wind-down, probably to the end of January.

4. CONSIDERATION AND FINDINGS OF FACT

I find that all the vehicle examiner’s findings are made out and I adopt them as my own.

Financial standing is not satisfied. Section 27(1)(a) is made out. There has already been a period of grace. Revocation is mandatory. All the Section 26 matters above are made out.

So I turn to the questions set out by the Upper Tribunal to assist traffic commissioners in making a determination on repute. The first question I must answer (the “Priority Freight”[[1]] question) is: is this an operator I can trust to be compliant in the future? In the positive, the traffic examiner found that Mrs Carew had been a major improvement over the previous transport manager and he found little to criticise.

Mrs Carew appears to have left the maintenance side of the operation to her husband and that is unacceptable. Whether the outcome would have been any different had she taken control is difficult to know, but it could hardly have been any worse. The process of defects being signed-off as rectified at the subsequent inspection drives a wagon-and-horses through the maintenance management system. In the positive, there had been roller brake testing in the latter half of 2022. On balance, I find that I could trust both Mr Carew and Mrs Carew to be compliant in the future with appropriate controls in place through undertakings, and further undertakings to monitor compliance with those undertakings in the medium term.

So I turn to the second question (the “Bryan Haulage”[[2]] question): is the operator so bad that it needs to be put out of business. Revocation of this licence is mandatory so this question really relates to whether or not a period of disqualification is necessary. The maintenance arrangements were unorthodox and unacceptable and that manifests itself in the prohibition history. Vehicles have been used in a known dangerous condition – returning from inspection to the yard for repair. But this is balanced by the good drivers hours systems and I set it against the context of the family’s personal circumstances. By a fine balance, I find that no order for disqualification of either operator or transport manager is necessary.

5. DECISION

Pursuant to an adverse finding under Section 27(1)(a), financial standing, the licence is revoked. Revocation will take effect on 15 February 2023.

The good repute of Mrs Jemma Carew as transport manager is tarnished but not lost.

The good repute of Mr Matthew Carew as an operator is tarnished but not lost.

Kevin Rooney

Traffic Commissioner

21 December 2022

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[[1]] Appeal 2009/225 to the Transport Tribunal

[[2]] Appeal 217/2002 to the Transport Tribunal