Decision

Decision for Mr Chauffeur Ltd (OC2009215) & Transport Manager Malgorzata Wielgusiak

Published 13 September 2023

0.1 In the North Western Traffic Area

1. Confirmation of Oral Decision of the Traffic Commissioner

1.1 Mr Chauffeur Ltd (OC2009215) & Transport Manager Malgorzata Wielgusiak

2. Introduction

Mr Chauffeur Ltd (“The operator”) has held a standard international goods vehicle operators’ licence OC2009215 authorising the use of 5 vehicles and 5 trailers since January 2018. There are currently 4 vehicles in possession.

The operator’s sole director is Patryk Szofer and the Transport Manager (“TM”) since the grant of the licence has been Malgorzata Wielgusiak who acts on an external basis.

The matters that led to the public inquiry can be summarised as follows:

• A DVSA encounter on 25 May 2022 when a vehicle was being used after its annual test had expired. There were several instances of driving without a card identified by one former driver.

• A further DVSA encounter on 22 June 2022 when roadworthiness prohibition notices were issued including an S mark prohibition and a prohibition for insecure load.

• Director Patrick Szofer was subsequently convicted of 3 offences of driving the vehicle in contravention of the 22 June 2022 prohibition and the Operator was convicted of 15 counts of permitting such use. Mr Szofer was fined a total of £1459, and the Operator was fined £9,060.

• That led to an DVSA maintenance investigation visit on 2 August 2022 that made satisfactory findings overall. However, the vehicle examiner highlighted some evidence of stretched inspection intervals, the MoT failure rate well above the national average and the fact of the prohibitions. This led him to question if TM Wielgusiak was exercising effective control over the licence.

• A Traffic Examiner carried out an inspection visit on 26 October 2022. The report was broadly satisfactory but recommended more frequent downloads of vehicle unit and driver card data to avoid the repeated issue with no card driving identified in the May 2022 encounter.

3. The Call to Public Inquiry

The Operator was initially called up to public inquiry by letter dated 11 January 2023 with a proposed hearing date of 20 February 2023.

The call up letter gave notice that the grounds for regulatory action in Sections 26(1) and 27(1) of the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”) were to be considered as well as the provisions for disqualification in Section 28 of the Act.

TM Wielgusiak was called up to public inquiry by letter of the same date that gave notice of consideration of the requirement of good repute and professional competence in Schedule 3 of the Act.

The public inquiry was then postponed to 20 June 2023 so the criminal proceedings could be completed. Unfortunately, TM Wielgusiak suffered a family bereavement shortly before the relisted hearing and the matter was further adjourned.

The operator and TM Wielgusiak were recalled to today’s hearing by letters dated 20 June 2023.

4. The Public Inquiry

The Public Inquiry was heard at Golborne today. The operator was represented by Mr Szofer and TM Wielgusiak was also present. The operator and Mr Szofer and TM Wielgusiak were legally represented by Mr Scott Bell of Backhouse Jones solicitors.

5. Evidence

In advance of the hearing, I was provided with evidence on behalf of the operator including an audit undertaken on 6 June 2023. The audit found the Operator was mostly compliant save that it was not recording brake tests at the recommended frequency. There were no further examples of stretched inspection intervals. The drivers’ hours infringement rate was 6%.

I also received submissions in which Mr Szofer conceded the offences of using the vehicle whilst prohibited. He said this was his first prohibition since he had started operating and was unaware of the process to be followed to lift the prohibition. The defects had been rectified but certified at a testing station.

Mr Szofer conceded in evidence today that his operation had been compliant initially when he was largely an owner operator. The issues arose after he rapidly expanded his operation in 2021 to use more vehicles and drivers. Mr Szofer also recognised that he had been too trusting of both drivers and his maintenance provider. He is in the process of identifying a new maintenance provider or providers.

Mr Szofer has no immediate plans to expand his operation again but would like to be able to do so if market forces allow.

Mrs Wielgusiak on her part made similar concessions and explained the lessons she has learnt from the DVSA involvement. She has taken the learning from this into both her management of this licence and how she approaches compliance on her other licence. Mrs Wielgusiak also provided me with evidence that she is booked to attend a dedicated course on effective management of vehicle maintenance in October 2023.

6. Findings of fact

I find that the evidence submitted beforehand and confirmed at the hearing confirms that the following grounds for regulatory action are made out:

• S26(1)(c)(i), 26(1)(c)(ii) and 26(1)(c)(iii) – The prohibitions issued in June 2022 and the subsequent convictions of both the Operator and Mr Szofer in person.

• S26(1)(e) –Statements made on applying for the licence have not been fulfilled including adherence to the stated maintenance inspection intervals, and that the holder would abide with conditions on the licence.

• S26(1)(f) – Undertakings not fulfilled. Specifically, this relates to the failure to keep vehicles fit and serviceable and to ensure drivers hours rules were met.

7. Decision

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.

The positive features that I identify are:

• There do now appear to be appropriate systems and procedures in place to prevent operator licence failings.

• There are appropriate analysis procedures in place to detect falsification, drivers’ hours and/or Working Time Directive infringements.

• Some changes have been made with tangible evidence in support, to ensure compliance.

• Operator co-operated with enforcement investigation.

• This is the Operator’s first public inquiry. It had not received any prohibitions prior to June 2022 or indeed, since.

These positives must be balanced with the following negative features:

• Although the number of prohibitions is not significant, this must be balanced with the serious matter of the convictions for use of the vehicle whilst it was still officially prohibited. Whilst I accept that was due to inadvertence, an Operator should be expected to know the procedure that applies.

• The evidence indicates that prior to the DVSA inspections, there was ineffective management control and insufficient systems and procedures in place to prevent operator licence compliance failings.

• Low average first time pass rate at MOT.

Having balanced these features and focussed on my perspective of the operator’s current compliance, I determine that this is a case that falls in the category of “moderate” for the purposes of assessing the starting point for regulatory action. I add the observation that had I been considering this matter at the first proposed listing in February 2023, it is likely that I would have assessed the starting point as higher up the scale. The delay in listing has allowed the Operator to demonstrate that improvements have been made and to reassure me about its future compliance.

I have gone on to consider the Priority Freight question of whether I can trust the operator to be compliant in future? I answer that question in the affirmative but with some reservation given the indication that the issues arose due to the increases in the number of vehicles operated.

I consider some form of regulatory action is needed to prevent a repetition if the Operator again finds itself in a position to increase the number of vehicles operated. I would want the reassurance that any increase was suitably incremental so that compliance was maintained.

Regulatory action will also serve the purpose described in the judgment of Thomas Muir (Haulage) Limited (1999) SC 86 of “deterring the operator or other persons from failing to carry out their responsibilities under the legislation”.

I consider that the appropriate and proportionate regulatory action in this case should take the form of a curtailment for 28 days whereby the operator is restricted to operating only 1 vehicle (reflecting the extent of the current operation). I do not make any direction in relation to identifying that vehicle, so the Operator is at liberty to use any of the vehicles in his possession provided that only one vehicle is operated at any given time.

That action is supplemented by the acceptance of the undertaking set out above to reinforce the expectation that any future increase in operations will be incremental.

The other undertakings offered add to my confidence in future compliance.

The Operator is however warned that I have given significant weight to the fact that this is its first public inquiry. If it were to be brought back before for any reason, it can expect more stringent regulatory action to be considered that would have a meaningful effect on the operation.

The same considerations apply to my assessment of Mrs Wielgusiak’s good repute as Transport Manager. The issues drawn to my attention raised troubling questions about her effectiveness in that role. However, I again balance this with the evident progress made since 2022 in terms of the Operator’s compliance under Mrs Wielgusiak. I am also satisfied that she has heeded the lessons of the DVSA involvement and taken appropriate steps to revise her approach including by seeking appropriate training.

I find that Mrs Wielgusiak’s good repute as Transport Manager is tarnished by these events but should not be considered forfeit. I record a formal warning on her record as Transport Manager.

Gerallt Evans
Traffic Commissioner for the North West of England

31 August 2023