Decision

Decision for MOT Commercials Ltd and Jack Elliot

Published 18 October 2024

0.1 IN THE NORTH WEST OF ENGLAND TRAFFIC AREA

1. DECISION OF THE DEPUTY TRAFFIC COMMISSIONER

2. MOT COMMERCIALS LTD OC2014288

3. TRANSPORT MANAGER JACK ELLIOTT

4. Public Inquiry held at Golborne on 1 October 2024

4.1 In the matter of the Goods Vehicle (Licensing of Operators) Act 1995

5. Introduction

MOT Commercials Ltd (“the operator”) has held a standard national goods vehicle operators’ licence OC2014288 authorising the use of 4 vehicles and 4 trailers since 15 May 2022. There are currently 4 vehicles in possession.

The sole director of the operator is David William Everall.

The Transport Manager (“TM”) named on the licence is Jack Elliott. He has been in post on a full-time internal basis since September 2022.

On 20 March 2024 an immediate and “S” marked prohibition notice was issued to the operator in relation to a trailer found to have long standing brake defects.

This encounter prompted the DVSA to further investigate the operator’s compliance and an unannounced maintenance investigation visit was undertaken on 15 April 2024 by Vehicle Examiner (“VE”) Brock.

VE Brock’s report reached a number of unsatisfactory findings. During the visit a second trailer was issued with a marked prohibition notice, again for a long-standing brake defect that had not been rectified. The Operator was unable to produce evidence of vehicle inspections and maintenance going back beyond 2 months, claiming that he had disposed of vehicles and their records at the same time. For the same reason there was no clear evidence of driver defect reporting and the Vehicle Examiner’s highlighted the poor MOT pass rate. It should be noted the operator undertakes its own maintenance and inspections.

The Vehicle Examiner was also told that TM Elliott lived 99 miles away from the operating centre and only worked 2 days per week despite having previously declared he worked a full 40 hours per week. There was no evidence that he had done any paid work for the operator prior to December 2023, and this led to the Vehicle Examiner questioning his effective control as TM. Mr Elliott apparently confirmed he had not attended any refresher training since 2019.

The DVSA report was drawn to the attention of the Traffic Commissioner who decided the operator and TM Elliott should be called to this Public Inquiry to further consider if regulatory action is required.

The operator was previously called to a Preliminary Hearing before me in 2022 to examine its links with another operator, Links Recycling Ltd and its director Steven Laurie. Although it was determined that those links did not call for further action, in the course of the proceedings it was established that the operator lacked financial standing. It was also identified that TM Elliott was being paid through a limited company and not as an individual. A period of grace was granted for financial standing to be shown (which was later achieved) and the operator provided a statement of intent to engage Mr Elliott on an individual basis in future.

6. The Call to Public Inquiry

The operator was called up to Public Inquiry by letter dated 21 August 2024.

The call-up letter gave notice that the grounds for regulatory action in Sections 26(1)(b). 26(1)(c)(iii), 26(1)(e), 26(1)(f) and 26(1)(h) of the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”) were to be considered as well as the statutory requirements to be of good repute, hold professional competence and to have financial standing. The letter also gave notice that the provisions for disqualification in Section 28 of the Act would be considered.

Transport Manager Elliott was called up by letter also dated 21 August 2024 that gave notice of consideration of the requirement of good repute and professional competence in Schedule 3 of the Act. The letter was sent to the correspondence address that Mr Elliott had previously provided to the Office of the Traffic Commissioner (“OTC”) on his application for appointment as transport manager.

On Saturday 28 September 2024 (3 days before the Public Inquiry) Mr Elliott was removed as transport manager from the online licensing system. A partial application was submitted proposing the appointment of a Craig Wilson as the new transport manager.

7. The Public Inquiry

The Public Inquiry was heard at Golborne today. The operator was represented by director Mr Everall. The proposed new transport manager Mr Wilson was also present.

TM Elliott was not present. Mr Elliott did not provide my office with any explanation for his absence. Mr Everall said that Mr Elliott was no longer his transport manager, and he was not aware of his whereabouts. Mr Everall suggested that [redacted]. He offered no further tangible evidence in relation to that matter.

I have considered Paragraph 5(7) of Schedule 4 of the Goods Vehicle (Licensing of Operators) regulations 1995 and the guidance in the Senior Traffic Commissioner’s Statutory Document Number 9: Case Management. I am satisfied that proper notice of the Hearing has been given to the Mr Elliott and that he has been given a fair opportunity to attend or otherwise respond to the call to Public Inquiry.

I am satisfied that postal service of the call-up letter was effective. In the absence of any evidence that the letter was not delivered as required, I apply the presumption that there was effective service of the letter Mr Elliott of today’s date. I also take account of the Upper Tribunal’s guidance in Philip Drake [2023] UKUT 98 (AAC) in relation to the use of addresses provided by an operator, namely, “As we see it, once such an address has been given, it is for the holder of a licence to ensure correspondence relating to the licence and sent by the OTC may be properly received.” I consider the same principle applies to transport managers as to operators.

Notice of the Public Inquiry has been properly published as required. Mr Elliott has not provided my office with any evidence to suggest that he is unable to attend for health or any other reason.

In the absence of any evidence to the contrary, I find that Mr Elliott has deliberately absented himself from the Hearing without good reason. I consider that it is appropriate to proceed to a determination of the Public Inquiry in his absence.

7.1 Evidence

The call-up letters included a case management direction that the operator should send evidence of financial standing to OTC and evidence of vehicle maintenance to DVSA at least 14 days before the Hearing. The operator did not comply with the directions.

After my office made contact with the operator on the eve of Hearing, the operator belatedly sent the evidence requested (including the financial evidence) to the DVSA. This was too late to allow the Vehicle Examiner to prepare a report on the maintenance documents in time for the Hearing.

On arrival at the Hearing, Mr Everall presented my clerk with some further evidence in the form of periodic inspection sheets for some of the vehicles and driver defect entry books. He explained that these were not full records as those had been provided to the DVSA. I examined the material supplied and did not identify any issues of particular concern within those records.

Mr Everall was asked why he had failed to comply with the directions to provide the evidence 14 days in advance. He initially stated that as far as he was aware, the evidence had been provided. He commented this was another consequence of his trusting “friends” and others to look after the company’s affairs. Mr Everall said he was not good with paperwork and saw himself as primarily a mechanic. He said that the business was run jointly by him, Mr Laurie, Mr Wilson and Katie Laurie (a relative of Steven Laurie). He insisted that he regarded himself as the owner of the business but described it as being controlled by “Steve and me mainly”.

Mr Everall also claimed that he had not received the call-up letter suggesting it had been received by Ms Laurie or someone else in the office. He said he had later been made aware of it and believed that “others” were arranging a response. Mr Wilson said he took full responsibility for failing to serve the evidence in time. He claimed he had been in hospital for 2 weeks recently although that appears to have only been from mid-September onwards and well after the call-up letter was sent.

The financial evidence was forwarded for my attention before the Hearing. This took the form of bank statements, and two documents purported to be accounting documents namely a profit/loss chart and a balance sheet. Neither document was certified and during the Hearing, Mr Wilson confirmed that he had created the documents with the assistance of Ms Laurie using the company’s accountant software. I was concerned about the reliability of the information as it had clearly not been prepared or certified by a qualified accountant or other accredited person. I also had regard to the and the guidance in the Senior Traffic Commissioner’s Statutory Document Number 2: Financial Standing on the acceptability of evidence. I decided that those two documents should be disregarded.

The bank statements covered a three-month period between 23 June 2024 and 23 September 2024. [amount redacted] which fell well below the £21,500 required to show financial standing for the 4-vehicle authority. I noted that the balances recorded at each 10-day interval during the 3-month period did not indicate any continually trend of improvement.

Mr Everall in his evidence accepted that the operator’s financial position had been poor earlier in the year, but he claimed it was now “slowly” improving. He said that business had dried up around Christmas 2023 and as a result he had sought to return his vehicles to the finance companies. Mr Everall said the position had been so poor he was unable afford to replace his brake testing device and that this had contributed to the second prohibition received during the DVSA inspection.

Mr Everall accepted he had not informed OTC of this change in the operator’s financial position. He claimed he was unaware of a requirement to do so, despite the fact that the operator had previously been found to lack financial standing at the Hearing in 2022 and been granted a period of grace.

Mr Everall asked for a period of grace to allow financial standing to be shown. He suggested that he would open a savings account and deposit sufficient funds in that to show financial standing. He also referred to his existing contracts for waste haulage and suggested these would become more profitable as landfill sites nearer the operating centre came into use, which would save on fuel costs. Mr Everall was unable to offer me any tangible supporting evidence to back up his assertions that the operator’s financial position would change significantly in the coming months. Mr Everall declined to offer a reduction in the authority on the licence. He maintained that he needed to continue operating 4 vehicles to meet his customer’s needs and that sub-contracting to external hauliers would be impractical.

Turning the transport manager position, Mr Everall said that Mr Elliott had ceased to act as the operator’s transport manager around the time of the DVSA inspection visit on 15 April 2024. Mr Everall said he had been dissatisfied with Mr Elliott’s performance for some time but had not taken any action because of Mr Elliott’s health. The DVSA’s intervention prompted Mr Elliott to terminate Mr Elliott’s role as transport manager.

Mr Everall was unable to confirm the precise date Mr Elliott ceased to be transport manager for the operator. He gave conflicting accounts of the approximate date, initially suggesting it was prior to the DVSA visit on 15 April 2024. When I highlighted that VE Brock’s report made no mention that Mr Elliott was no longer in post, Mr Everall sought to claim that he had dismissed him a few days after the DVSA visit. Mr Everall also claimed he had informed VE Brock that he intended to replace Mr Elliott with Mr Wilson although there is no mention of that in the DVSA report.

Mr Everall insisted that Mr Elliott had been paid up to the date of his departure, but he confirmed that was by payment to Mr Elliott’s Limited company. I pointed out that this issue had been discussed at the previous Hearing in 2022 and Mr Everall had given a statement of intent that he would pay Mr Elliott in person going forward. Mr Everall said he had no recollection of giving that statement of intent despite the fact it was discussed with him in person at the hearing and confirmed in the written decision thereafter.

Mr Everall in his evidence accepted that he had not informed OTC that Mr Elliott was no longer in post. He appeared to accept that he was aware that he was required to do so but had overlooked the requirement until the eve of the Public Inquiry. Mr Everall told me that he believed he was meeting the requirement of professional competence by engaging Mr Wilson. Mr Everall said that Mr Elliott had been removed as transport manager from the record by Mr Wilson.

Mr Wilson, in his evidence said that he had been acting as Mr Everall’s transport manager since 3 May 2024. He claimed that they had tried to record his appointment as transport manager previously although they could offer no evidence that this had been done. Mr Wilson said they only realised that his appointment had not been recorded when the licence was checked ahead of this Hearing. Neither Mr Wilson not Mr Everall could offer a satisfactory explanation why they had not checked the licence much earlier in the 5 months since his purported appointment.

Mr Everall volunteered that this was something else that “Steve” was meant to be sorting out and confirmed that this was a reference to Mr Laurie.

Mr Wilson confirmed he had made the changes to the online licensing system removing Mr Elliott using Mr Everall’s log in details. He was unaware this was improper and sought to clarify that Mr Everall was with him when he made those changes. This was confirmed by Mr Everall after some prompting by Mr Wilson.

Payment for Mr Wilson’s services are being made to a company named Bowness Consultancy. Mr Everall and Mr Wilson claimed to be unaware that was unacceptable despite the very issue being discussed at the operator’s previous Preliminary Hearing.

I asked Mr Wilson about his connection to Steven Laurie. Mr Wilson initially sought to distance himself from any connection and I reminded him that the Preliminary Hearing had heard about his appointment as transport manager for Links Recycling, Mr Laurie’s company.  Mr Wilson then confirmed he had been Links Recycling’s transport manager until April 2024. He left the role to take up his appointment with this operator. Mr Wilson said that was at the invitation of Mr Everall and that Mr Laurie had not been involved in the arrangement.

In relation to the prohibitions, Mr Everall suggested that the defects were not as serious as suggested by VE Brock. He insisted he had properly inspected both trailers before the prohibition and had not identified the defects. Mr Everall was unable to explain what steps he had taken to investigate the prohibitions and prevent a recurrence. He admitted however that his ability to undertake brake testing of his vehicles and trailers had been impaired earlier this year following the failure of his brake tester and his inability to afford a replacement.

Mr Everall accepted that the operator had been unable to produce evidence of vehicle maintenance records to VE Brock. He said he thought the requirement to keep the records was for 12 months not 15 months. I noted that VE Brock was informed during his visit that the records had been given away with the vehicles and trailers when they were returned to the finance company. Mr Everall told me today that was not correct. He said the records were still in the operator’s possession but were in such a state they could not be presented to the DVSA. He sought to blame Mr Elliott and “others” for misinforming VE Brock and the state of the records.

Mr Everall also disputed the evidence provided by VE Brock of the operator’s poor MOT failure rate. As mentioned in VE Brock’s report, he asserted that some of the vehicles mentioned in the data were not known to him. He suggested that some of the successful tests involving the operator’s vehicles had been wrongly credited to another licence holder and that some of the unsuccessful tests did not involve his vehicles. Mr Everall was directed to the evidence VE Brock gave in his report about some of the latter vehicles being specified on the operator’s licence. Mr Everall could not explain that evidence and confirmed he had not sought to further investigate the matter. Mr Everall asserted that the operator had a 100% pass rate at initial presentation but was unable to offer any evidence in support of that assertion.

I found Mr Everall to be a very unimpressive witness. Much of the evidence he gave was either vague or conflicting. I formed the clear impression that the operator’s management was under the significant influence of other persons, most notably Mr Laurie. During today’s Hearing, he often sought guidance from Mr Wilson before answering questions or was prompted in those answers by Mr Wilson.

Mr Everall demonstrated a serious lack of knowledge of the requirements of operator licence compliance. Mr Everall acknowledged that he had recognised the need to “do something” to improve matters and pointed to a decision to employ someone else in the garage so that he could focus on management matters.

After I raised the issue of training and professional advice, Mr Everall said that he was intending to do some training including attending a CPC course. He did previously start such a course but had to cancel it because of another commitment. Mr Everall has not booked any training as yet.

Similarly, Mr Everall said he had been thinking of seeking external advice. He mentioned the transport consultant that had represented the operator at the 2022 hearing. Mr Wilson also said they would be happy to arrange an audit. Mr Everall confirmed however that no steps had yet been taken to progress these matters.

8. Determination

8.1 MOT Commercials Ltd OC2014288

Having read the evidence in the Brief, the material belatedly submitted by the operator and the oral evidence heard at the Public Inquiry, I have reached the following findings of fact.

The operator lacks professional competence since the removal of Mr Elliott as transport manager on 28 September 2024. Although that was the date the record was updated, I am satisfied that the operator has been without a transport manager for a considerable period of time. I consider it more likely than not that Mr Elliott ceased to be the transport manager altogether prior to the end of April 2024. I also consider the evidence shows he has not been an effective transport manager for several months prior to that.

The operator has sought a period of grace based on its recent attempt to nominate Mr Wilson as a replacement. I refuse the application for a period of grace. I have considered the test as set out by the Upper Tribunal in 2014/008 Duncan McKee whether there are reasonable prospects for a good outcome such that I am persuaded that granting a period of grace will be worthwhile. Whilst I acknowledge that the operator has belatedly attempted to appoint a transport manager, that has been after far too long a period when it has been without professional competence. The application as it stands is incomplete and I have considerable doubts whether Mr Wilson can demonstrate the statutory requirements given the evidence I have heard today. Mr Wilson despite his CPC qualification and previous experience as a transport manager has knowingly acquiesced in the operator’s continuing failure to inform OTC of its lack of professional competence. He has taken responsibility for the failure to comply with the case management directions and that also calls into question whether he can demonstrate his good repute.

The period of grace application is refused and consequently I find that the absence of professional competence means the grounds for mandatory revocation in Section 27 (1)(a) of the Act are met.

The operator has failed to produce evidence of financial standing for its licence authority. It has asked for a period of grace and I have again considered the words of the McKee judgment, “In our view, when considering whether or not to grant a period of grace, Traffic Commissioners will need some tangible evidence, beyond mere hope and aspiration, that granting a period of grace will be worthwhile”. No such tangible evidence has been provided. The evidence in the bank statements does not clearly support Mr Everall’s claim of slow improvement. Other than the vague assertions about improved profitability in future, I was not provided with any documentary or other tangible evidence to give me confidence that the operator’s financial position can reasonably be expected to improve to the level required for the licence in the foreseeable future.

I also note Mr Everall’s oral evidence suggesting that the lack of financial standing appears to have existed for some time and possibly since the start of the year. The operator’s lack of financial resources has had a direct impact on its ability to keep its vehicles fit and roadworthy as it was unable to afford to replace brake testing equipment.

The request for a period of grace is refused and I find that the lack of financial standing means the grounds for mandatory revocation in Section 27 (1)(a) of the Act are met on this basis also.

In relation to other areas of concern addressed during the Public Inquiry, I make the following findings of fact:

• The operator has failed to notify of events affecting financial standing. This is in breach of the conditions on its operating licence and satisfies the grounds for regulatory action in in Section 26(1)(b) of the Act;
• There have been prohibition notices issued to the operator within the last 5 years including two “S” mark prohibitions. This satisfies the grounds for regulatory action in in Section 26(1)(c)(iii) of the Act;
• The operator has not honoured the undertakings that it agreed previously to keep its vehicles fit and serviceable, to keep records of driver defect reports and routine maintenance for 15 months and make them available on request. This satisfies the grounds for regulatory action in in Section 26(1)(f) of the Act;
• The operator has failed to fulfil the statement of intent it gave at the Preliminary Hearing on 19 April 2022 that it would engage Jack Elliott as its transport manager on an individual basis and would cease to pay him through a company. That represents a material change in the circumstances of the licence holder that satisfies the grounds for regulatory action in in Section 26(1)(h) of the Act.

I further find that the operator failed to fully co-operate with the DVSA maintenance investigation. It did not produce the records requested and Mr Everall allowed the Vehicle Examiner to be misled about the reasons why the documents were not available. The operator failed to respond to the DVSA report as requested.

I also find that Mr Everall failed to promptly inform OTC of the removal of TM Elliott, waiting until the eve of the Public Inquiry to do so.

Finally, I find that Mr Everall as the sole director of the operator is not in full and effective control of the management of the licence. On the evidence I heard today, I consider it more likely than not that management decisions affecting the operator, and its licence compliance are being made by other persons who hold no official role within the operating entity.

The findings of fact set out above lead me to the conclusion that the operator no longer meets the requirement of good repute.

Having reached the findings of fact recorded above, I have considered the balancing exercise and have considered the positive and negative features by reference to the guidance in the Senior Traffic Commissioner’s Statutory Document Number 10.

I identify the following negative features.

• The licence has been operated for at least 5 months without an appointed transport manager and without the oversight of a period of grace. If the Public Inquiry had not been called, I am satisfied that the operator would have continued to try to conceal the true position. That amounts to a deliberate act by the operator that led to an undue risk to road safety or unfair commercial advantage;
• Road safety critical defects on any vehicle or trailer in service and the “S” marked prohibitions. The second prohibition for a similar defect following so soon after the first is troubling and reflects a lack of an adequate response;
• The operator failed to fully co-operate with the enforcement investigation as detailed above. The operator failed to comply with the case management directions issued by the Traffic Commissioner.
• I find that there is a low average first time pass rate at MOT on the basis of the DVSA evidence. The operator has failed to persuade me that should not be accepted;
• The operator has failed to heed the reminder of the need to be compliant that it received at the Preliminary Hearing in 2022. To all intents and purposes, the operator has ignored the clear direction given at that Hearing as to the appropriate employment of a transport manager and has failed to fulfil the statement of intent that was given at the time to engage Mr Elliott on an individual basis.

The positive features on the other hand are very limited. I give the operator some credit that more recent evidence of maintenance supplied does not disclose any immediate concerns about roadworthiness or compliance (to the extent that has been checked).

The negative features far outweigh the positive features. Having balanced these features and considered the evidence heard at the Public Inquiry, I consider this is a case that falls into the range of “serious to severe” for the purposes of considering regulatory action.

I have gone on to consider the questions set out by the Upper Tribunal in Priority Freight and Bryan Haulage before determining the level of regulatory action.

The Priority Freight question requires me to ask if I can have confidence that the operator can be trusted to be compliant in future. I answer that question with an emphatic “no”. Having heard from Mr Everall today, I have no confidence in his ability as sole director to manage the operator compliantly. It is clear that he lacks the knowledge and skills to be able to do so. This in turn has allowed others to exert more influence over the management of the operator and its licence than ought to have been permitted.

Mr Everall sought to give me some assurance that he would seek professional advice and training in future.  However, other than apparently giving such matters passing thought, he has done nothing to date to actively address the weakness in his approach to compliance.  

I have considered the guidance offered by 2013/082 Arnold Transport Ltd where the Upper Tribunal considered the differing classes of operators appearing at Public Inquiry and commented “the attitude of an operator when something goes wrong can be very instructive. Some recognise the problem at once and take immediate and effective steps to put matters right. Others only recognise the problem when it is set out in a call-up letter and begin to put matters right in the period before the Public Inquiry takes place.  A third group leave it even later and come to the Public Inquiry with promises of action in the future.  A fourth group bury their heads in the sand and wait to be told what to do during the Public Inquiry”. This operator and Mr Everall fall squarely into that fourth category in my view.

I have then considered the Bryan Haulage question of whether the company deserves to be put out of business. I have reflected on the evidence that I heard that the loss of the licence would inevitably lead to closure of the business and the loss of work for the four drivers and others. However, the extent of the failings in this case and my concerns about the operator’s lack of ability to deliver a safe and compliant operation are such that I am satisfied it is proportionate to direct the revocation of the licence.

Turning to the question of disqualification, as the operator has only a single director in Mr Everall, I consider it is appropriate to approach the issue as one for both the company and its individual director.

I have applied a balancing exercise, and the features identified above in relation to regulatory action are equally pertinent to the question of disqualification. The negative features outweigh the positives, and I consider a period of disqualification is justified.

In deciding upon the length of the disqualification, I have taken account of paragraph 107 of the Senior Traffic Commissioner’s Statutory Document Number 10 which states that for an operator’s first Public Inquiry, consideration of a disqualification period of between 1 and 3 years may be appropriate.

There are some serious elements to this case, but I balance this with my findings that Mr Everall has been unduly influenced by other persons. It is also the first Public Inquiry for the operator and director (albeit after a previous Preliminary Hearing). I do not exclude the possibility of rehabilitation and a future application for an operator’s licence being allowed.  

I consider that a period of disqualification is necessary for Mr Everall to reflect on the events that led to the loss of the licence and to seek further education on how to run a compliant operation. Any future application would also be strengthened by evidence that he had sought independent advice and support from a specialist source such a transport consultant, solicitor or trade association. Mr Everall and the operator would also be expected to demonstrate that they were free from the influence of those who have contributed to the end of this licence. I would also wish to see evidence of attendance at an Operator Licence Awareness Training course provided by a recognised organisation.

After careful consideration, I have determined that the period of disqualification for the operator and its director can be limited to 12 months. Any return to holding an operator’s licence after that time would need to be supported by evidence of the steps, I have set out above.

I defer the effective date of the revocation and disqualification orders for 28 days to allow proper notice to be given and for the operator to make arrangements for the orderly wind down of the business.

8.2 Former Transport Manager Jack Elliott

I find that Jack Elliott has failed to exercise the required degree of continuous and effective management of the licence during their tenure as transport manager.

The circumstances of the “S” mark prohibitions and the DVSA investigation in April 2024 all indicate a lack of effective control by Mr Elliott. Mr Elliott was unable to produce evidence of vehicle maintenance to the DVSA and on the evidence of Mr Everall he appears to have given the Vehicle Examiner a misleading explanation that the records had been moved on with the vehicles.

I would have expected a competent transport manager to have addressed far sooner such matters as the persistent instances of stretched inspection intervals over a 12-month period.

I have reminded myself of the directions on the general responsibilities of Transport Managers set out in the Senior Traffic Commissioner’s Statutory Document No. 3.

These include:

• “to manage, audit and review compliance system to ensure that they are effective;
• to review any shortcomings such as prohibitions and/or annual test failures;
• to ensure that vehicles are kept in a fit and roadworthy condition;
• to ensure that reported defects are either recorded in writing or in a format which is readily accessible and repaired promptly;
• to ensure that safety inspections (and other statutory testing) are carried out within the notified O-licence maintenance intervals;
• to ensure that drivers are completing and returning their driver defect reporting sheets and that defects are recorded correctly.”

I found only very limited evidence that Mr Elliott fulfilled any of those responsibilities and clearly did not do so effectively.

Mr Elliott was aware of the direction given at the Preliminary Hearing in 2022 that he was to be employed as an individual and payments to his limited company should cease. Mr Everall has confirmed today that arrangement continued despite that direction.

It is clear that Mr Elliott ceased to be the operator’s transport manager at around the time of the DVSA investigation in April 2024 (if not earlier). He has not taken any steps to notify OTC of this or to remove himself from the licence. To distance himself from the operator. If those concerns were genuinely held, I would have expected him to have resigned far sooner. I consider it telling that he left the directors to face the Public Inquiry alone.

I note that Mr Elliott has still not provided any evidence that they have undertaken any continuing professional development despite the absence of such evidence being highlighted in the DVSA report.

Finally, his failure to attend the Public Inquiry today without any explanation and cooperation with the Traffic Commissioner is a significant further negative feature.

I have balanced the negative and positive features set out above and consider the former far outweigh the latter. Consequently, I find that Mr Elliott’s good repute is lost. As a result, disqualification must follow.

I have undertaken the same balancing exercise and in deciding upon the length of the disqualification, I have taken account of the guidance in paragraph 108 of the Senior Traffic Commissioner’s Statutory Document Number 10 which notes that the minimum period of 12 months applies to a transport manager.

I do not consider that a disqualification of longer than 12 months is necessary or proportionate in the circumstances here. Such a minimum period will allow Mr Elliott to reflect on the circumstances that have led to this decision and to allow him to consider steps to demonstrate his rehabilitation should he wish to seek appointment as a transport manager in future.

I defer the start of the disqualification to allow Mr Elliott one final opportunity to request a Hearing or make representations, including submissions on the length of the disqualification.

Gerallt Evans

Deputy Traffic Commissioner

1 October 2024