Decision

Decision for Nick Lang Contracting SW Limited, Granville Lang & Transport Manager Casey Dean Jones

Published 17 December 2021

1. DECISION OF THE TRAFFIC COMMISSIONER FOR WALES

1.1 PUBLIC INQUIRY HELD AT PONTYPRIDD ON 4 NOVEMBER 2021

1.2 Nick Lang Contracting SW Limited OG2018367

&

1.3 Transport Manager Casey Dean Jones

&

1.4 Granville Lang OG2022936

2. Background

Nick Lang Contracting SW Ltd holds a Standard National Goods Vehicle Operator’s Licence authorising 5 vehicles and 2 trailers, granted on 4 February 2019. There is an undertaking attached to the licence that “Nick Lang is to have no role in the management of the company unless and until there is written permission from the traffic commissioner (and there should be an expectation that this will be a matter of years”. This followed the refusal of an application by the company for a standard national licence authorising the same number of vehicles and trailers at a Public Inquiry on 5 November 2018. Nick Lang Contracting Ltd OG1119036 held a restricted licence with authorisation for 2 vehicles and 2 trailers from 2 May 2013 until that licence was revoked on 5 May 2018.

Casey Dean Jones was the nominated transport manager on the licence from 9 September 2019 until 24 November 2020. There have been three successive transport managers since Casey Jones left and the current transport manager is Kyle Morgan, who has been designated on the licence only since 19 October 2021.

Granville Lang, t/a Granville Lang Hire, holds a sole trader Restricted Goods Vehicle Licence granted on 7 June 2019 authorising 3 vehicles and 2 trailers. Granville Lang is the father of Nick Lang.

On 6 June 2020, Nick Lang Contracting SW Ltd submitted a variation application which sought to increase authorisation from 5 vehicles and 2 trailers to 8 vehicles and 4 trailers. Although that variation application was subsequently withdrawn by the company, it generated a maintenance investigation by the Driver and Vehicle Standards Agency (“DVSA”), the results of which were unsatisfactory. A Public Inquiry to explore the shortcomings was originally listed for 15 December 2020. However, before that hearing, further issues came to light when the DVSA and South Wales Police stopped one of the operator’s vehicles on 3 December 2020. The driver was found to be unlawfully using a tachograph card in the name of Granville Lang. In addition, since the original call in letter, the operator had received an “S” marked prohibition for serious failings in maintenance systems. These further matters were set out in a supplementary call in letter and the operator was called to Public Inquiry, with its former transport manager Casey Jones. Sole trader Granville Lang was also called to this inquiry to explore his non co-operation with DVSA examiners following a stop of one of his vehicles on 23 April 2020 and the use of his tachograph card by someone driving for Nick Lang Contracting SW Ltd on 3 December 2020.

3. Hearing

The Public Inquiry was listed for 8 September 2021 at the Office of the Traffic Commissioner for Wales in Pontypridd. Unfortunately, the hearing could not proceed on that date due to one of the parties involved testing positive for Covid. The matter was re-listed for 4 November 2021 at Pontypridd and went ahead on that date. Both operators and transport manager Casey Jones were represented by Aled Owen, solicitor, of Harrison Clark Rickerbys. Sarah Beynon, sole director of Nick Lang Contracting SW Ltd appeared for the company. Casey Jones attended the hearing, as did Richard Cussons (former transport manager) and Kyle Morgan (the current transport manager). Vehicle Examiner (“VE”) Michael Harris and Traffic Examiner (“TE”) Alexander Thomas attended from the DVSA.

Granville Lang did not attend the hearing. When asked why Mr Lang had failed to attend, Mr Owen suggested that illness had played a part but he believed that Mr Lang had decided not to attend because he was embarrassed by the situation that he found himself in. No medical certificate had been submitted in advance of the hearing and I had not been asked to excuse Granville Lang’s attendance at the hearing. I was referred to a statement prepared by Granville Lang dated 31 August 2021 in which he stated that he had sold his vehicles and had now retired from the industry. He had attempted to surrender his operating licence but I had not accepted the surrender given that this matter had been called to Public Inquiry to enable me to question him in relation to the issues highlighted in the call in letter, particularly some quite serious allegations of non co-operation with DVSA. Mr Owen indicated that Granville Lang did not wish to make any further representations beyond what was in his statement and that, as he had chosen not to appear, he had to accept that I would proceed based on the evidence before me.

4. Issues

The public inquiry was called for me to consider whether there were grounds for me to intervene in respect of the licences held by Nick Lang Contracting SW Ltd and by Granville Lang specifically by reference to the following sections of the Act: 26(1)(b) 26(1)(c)(iii), 26(1)(e), 26(1)(f), 26(1)(h), 27(1)(a) and 28.

Casey Jones was called as Transport Manager to consider whether I should make a finding against his repute and prevent him from relying on his Certificate of Professional Competence - section 27(1)(b), Schedule 3 and Article 4 of Regulation (EC) 1071/2009.

5. Evidence

In addition to the papers in the public inquiry bundle I had also been provided, in advance of the hearing, with additional evidence in the form of statements from Sarah Beynon, the new director of Nick Lang Contracting SW Ltd, Casey Jones, former transport manager, and Granville Lang. I received an updated statement from Casey Jones on the day of the hearing, which was in identical terms to the statement provided prior to the adjourned hearing in September 2021, but it included a short addendum to reflect the position as at the date of the hearing in November. Audit reports from an independent transport consultant, Neil Thomas, were provided relating to Nick Lang Contracting SW Ltd. These dated from December 2020, August 2021, and October 2021. I also received written submissions made on behalf of both operators and Casey Jones, for which I was grateful.

The operator Nick Lang Contracting SW Ltd had provided maintenance and drivers’ hours documents requested in the call in letter. Some financial documentation was provided and the matter of financial standing was dealt with in closed session at the end of the inquiry - discussed separately below.

No maintenance or finance documents were provided by Granville Lang.

The evidence of TE Thomas and VE Harris included in the public inquiry brief was adopted by each of them and Mr Owen indicated that it was not contested, save for the evidence of TE Thomas regarding impressions he had formed about the role of Nick Lang, given the specific undertaking on the licence that he must not have a role in the management of the company. TE Thomas gave oral evidence about what had given rise to those suspicions and was questioned by me and by Mr Owen. TE Thomas and VE Harris had considered the maintenance and drivers’ hours documents provided by Nick Lang Contracting SW Ltd on the morning of the inquiry and both gave oral evidence about that documentation. Again, they were questioned by me and by Mr Owen as to their findings.

Sarah Beynon adopted her witness statement and gave oral evidence, responding to questions from both Mr Owen and from me.

Casey Jones gave oral evidence, including evidence in relation to his witness statement (an updated version of which was submitted shortly before the inquiry). This was accepted by him as being incorrect on the fundamental issue of whether Casey Jones was, at the time of the inquiry, using his transport manager qualification. During a pause in proceedings, my clerk ascertained from the Vehicle Operator Licensing records that, on 18 October 2021, Casey Jones had been accepted as the transport manager on another operating licence and had therefore been acting as the nominated transport manager for that operator since that date. Mr Jones, in response to questioning from me, confirmed that this was true, despite what was stated in his written evidence. I heard from Mr Owen as to the circumstances in which the updated statement had been provided by his client and Mr Owen confirmed that he had not been aware of this development.

Richard Cussons, former transport manager for Nick Lang Contracting SW Ltd gave oral evidence in response to questions from Mr Owen and he also responded to questions from me.

I heard closing submissions from Mr Owen on behalf of both operators and Casey Jones before considering the question of the financial standing of Nick Lang Contracting SW Ltd in closed session. I then reserved my decision.

[REDACTED]

6. Findings of fact

6.1 Nick Lang Contracting SW Ltd

It is undisputed that the operator has been issued with three prohibition notices by the DVSA since the licence was granted in 2019. The first, on 17 October 2019, was a delayed prohibition notice for a fractured brake disc, which was found to be fractured through the surface into the ventilation cavity. The other 2 prohibition notices have both been serious “S” marked immediate prohibitions. These were in May 2020 and in July 2021 for dangerously insecure loading of a vehicle and serious failings in maintenance systems. Accordingly, I find that section 26(1)(c)(iii) of the Act is made out.

The evidence is clear and accepted by the operator that it failed to comply with the undertakings on the licence that vehicles and trailers are not overloaded.

It also failed to comply with the undertaking that its vehicles and trailers would be kept fit and serviceable as evidenced by the prohibition notices issued and the poor MOT fail rate. Defects found at annual test included steering defects that should have been identified and rectified prior to presentation for annual test, indicating serious shortcomings in the operator’s maintenance systems. VE Harris’ opinion was that the maintenance issues identified in his report appeared to have been present from the outset of the licence being granted in 2019 and, whilst the response to that report from Casey Jones suggested that some improvements had been made in recent months, VE Harris’ evidence was that some basic requirements were still not being met. Of particular concern to VE Harris was the fact that defects were found during his fleet inspection. Whilst those were not of an immediately serious nature, the vehicle he inspected had just been inspected by the fitter on site and the visit had been arranged over 72 hours previously.

Again, it is undisputed that the operator failed to comply with the undertaking that it would observe the rules on drivers’ hours and tachographs and keep proper records. Since the licence was granted in 2019 there have been 6 encounters involving a DVSA TE. During those 6 encounters a total of 10 offences have been recorded and a total of £300 fixed penalties were issued for drivers’ hours offences. Few of the systems in place at the time of TE Thomas’ investigation in July 2020 were fully effective, with many requiring extensive improvement to be compliant.

The operator failed to comply with the undertaking that it would keep proper safety inspection and routine maintenance records. PMI reports were incomplete with no evidence of the transport manager checking the records and signing them off. Inspection and roadworthiness sign off was completed by drivers, with no evidence that they were suitably trained or qualified to do so. No evidence of measured brake tests being carried out in accordance with the Guide to Maintaining Roadworthiness. Tyre pressures recorded appeared to be after inflation to correct pressure and not reflective of pressures likely to have been measured during safety inspections.

Accordingly, I find that section 26(1)(f) of the Act is made out.

I have considered the evidence regarding Nick Lang and his role in the company, in view of the specific undertaking on the licence that he is to have no role in the management of the company. On balance, whilst it is clear to me that he did have a degree of involvement in the running of the company which went beyond that of a driver, I am unable to make a finding that this amounted to “management” and do not find a breach of that licence undertaking.

An application for a period of grace was made by the operator in closed session at the end of the public inquiry. That application invited me to make an adverse finding under s27(1)(a) that the operator no longer satisfied the requirements of s13A(2) as to financial standing – a mandatory and continuing requirement. I did so and granted the period of grace requested, 14 days, to allow the operator time to rectify the situation and demonstrate that financial standing was met. Given my concerns about the documents provided, as already discussed at paragraphs 17 to 25 above, I am not satisfied that the operator, Nick Lang Contracting SW Ltd, is now able to show that it is meeting its financial standing obligations. The period of grace time limit, which I extended by several days to allow the operator additional time to submit evidence, has come to an end and I find that the situation as to financial standing has not been rectified. Accordingly, the licence must now be revoked under s27(1)(a) of the Act.

6.2 Casey Jones – transport manager

Casey Jones, in his capacity as transport manager, was unable to demonstrate that he had complied with his duty effectively and continuously to manage all the transport activities of Nick Lang Contracting SW Ltd, as required by the legislation. Specifically, I find that he failed to exercise effective quality controls over the PMI sheets, failed to ensure that there were proper systems for brake testing (including roller brake testing), and driver defect reporting. Casey Jones did not have effective control of maintenance standards. There was no evidence of him being involved with roadworthiness sign off, PMI records were being signed off, quite inappropriately, by drivers rather than by him as transport manager, and VE Harris’ evidence was that Casey Jones was not aware of the brake testing requirements in the DVSA Guide to Maintaining Roadworthiness.

There were also serious failings in compliance with drivers’ hours and working time requirements and I find that Casey Jones failed to comply with his transport manager duties in that respect. He failed adequately to check the downloaded tachograph data, as evidenced by the lack of vehicle data reports and missing days on driving reports. Driver training and disciplinary procedures were ineffective. Driving licence checks were not carried out properly, with Mr Jones failing to spot the expiry of drivers’ entitlements. There was a complete lack of any system for monitoring Working Time Directive requirements.

Casey Jones sat his CPC qualification over 20 years ago and his appointment with the operator was the first time he had been nominated as transport manager. He was employed in that capacity for a period of 14 months, until his resignation in November 2020. He works full time as an HGV driver for another operator. He worked in that capacity for that operator throughout the period when he was transport manager for Nick Lang Contracting SW Ltd.

In addition to the serious nature of the failings I have already referred to, I had cause to doubt Casey Jones’ credibility. As referred to earlier, on the morning of the inquiry I received an updated statement from Casey Jones. This included an addendum to his original statement, as at the date of the inquiry, in which he stated at paragraph 7 “…I am not using my Tm qualification…”. However, whilst responding to questioning from his own solicitor, his evidence changed and it became apparent that Mr Jones had been accepted as the designated transport manager on another operator’s interim licence on 18 October 2021. This was confirmed by my clerk who checked the licensing records during a pause in proceedings.

When questioned about this fundamental inconsistency in his evidence, Casey Jones accepted that he had not been truthful to his own solicitor about this and that Mr Owen had prepared the updated statement and submitted it based on what Casey Jones had told him. I expect a transport manager to be completely open and honest in communications with their solicitor, particularly on the matter of something so significant, namely whether they are currently relying on their transport manager qualification, which is highly relevant to the balancing exercise I must undertake when considering regulatory action. It is not clear to me why Casey Jones had not been truthful in that regard, and his explanation at inquiry lacked consistency and clarity. He did offer a full apology at the conclusion of his oral evidence.

I was asked to accept that Casey Jones had made some improvements to the operator’s systems between the DVSA visit in August 2020 and his resignation in November 2020. However, on the basis of the evidence, in particular the evidence of NRT consultancy audit report dated December 2020, which found many of the same compliance failings that the DVSA examiners found a few months earlier, and the evidence of Ms Beynon and Mr Cussons (transport manager) who both described the systems in place when they took over as a “shambles”, it is clear that Casey Jones had not improved compliance to anything near an acceptable level by the time he resigned.

Casey Jones, in evidence, stated that he had completed a transport manager refresher course in 2019 (before the DVSA visit). However, the certificate produced as evidence for this was not, in fact, a certificate of attendance at a TM refresher course but an operator licence awareness course. Although his evidence was that he has now familiarised himself with relevant DVSA and OTC documents, I have serious concerns about Mr Jones’ knowledge and ability to perform the role of transport manager. He is currently employed full time as a driver – he stated 42 hours per week in his evidence. It transpired during the inquiry that he is already nominated as transport manger on another licence and had been for some two weeks prior to the hearing. I have concerns about how he can possibly be fulfilling that role effectively, given his full-time driving position, quite apart from the concerns already identified. In response to questions about the impact that disqualification would have, he responded that he would be devastated but, financially, he would not miss the part time transport manager income. He had previously given that extra income to his son.

For these reasons, and having regard to the Senior Traffic Commissioner’s Statutory Document 3, I consider it an entirely proportionate response to make a finding that Casey Jones has lost his repute as transport manager and no longer satisfies the requirements of section 13A(3) of the Act.

6.3 Granville Lang

It is undisputed that the operator has been issued with three prohibition notices by the DVSA since the licence was granted in 2019. These were 2 immediate prohibition notices on 23 April 2020 and on 20 November 2020 relating to damaged tyres and a delayed prohibition notice on 20 November 2020 in respect of steering and braking defects. It is concerning that the operator’s mechanical prohibition rate is more than three times the national average at 75% (compared with 24.84%). Accordingly, I find that section 26(1)(c)(iii) of the Act is made out.

Granville Lang’s refusal to engage with the DVSA following a stop of one of his vehicles on 23 April 2000 has meant that he has passed by the opportunity of demonstrating how he is acting as a compliant operator, adhering to the rules, and fulfilling the undertakings and statements given at the time the licence was applied for. DVSA sent repeated requests for information relating to apparent drivers’ hours infringements. Apart from some initial limited information supplied by a Mr Owen on behalf of the operator, he failed to produce all the documentation requested by DVSA or even to respond to their correspondence. He again failed to co-operate following the vehicle stop last year which revealed another driver driving another operator’s vehicle whilst using Granville Lang’s tachograph card. In response to the call in letter, no evidence was produced by Granville Lang to show that he is operating compliantly in terms of driver defect reporting and retention of records, or of drivers’ hours and working time records. He has been issued with prohibition notices as already outlined above, his mechanical prohibition rate is much higher than the national average and his drivers’ hours prohibition rate, at 33%, is also far higher than the national average (3.84%). Accordingly, I find that section 26(1)(f) of the Act are made out.

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 addition other operators must be able to trust their competitors to comply, otherwise they will no longer compete on a level playing field…cutting corners all too easily leads to compromising safe operation. It is important that operators understand that if their actions cast doubt on whether they can be trusted to comply with the regulatory regime they are likely to be called to a Public Inquiry at which their fitness to hold an operator’s licence will be called into question. It will become clear, in due course, that fitness to hold an operator’s licence is an essential element of good repute.”

In view of my findings regarding Granville Lang’s failure to comply with the licence undertakings I am entitled to question his fitness to hold a licence. Of particular concern is Mr Lang’s failure to co-operate with the DVSA. Mr Lang repeatedly ignored correspondence from DVSA which meant that DVSA could not assess and report on his compliance with licence requirements. I find that he has shown a complete lack of respect for the DVSA and failed in his duty as an operator to co-operate with that Agency. Although he provided a written statement in advance of the hearing, he failed to attend the public inquiry which meant that I was unable to question him in relation to these matters. Mr Lang has breached the trust placed in him as an operator which is fundamental to the operator licensing system and I find that there has been a material change in circumstances of the licence holder, namely that he no longer remains of the required fitness and, in the absence of evidence of finances, I cannot be satisfied that the operator continues to have sufficient financial resources to maintain its vehicles in a fit and serviceable condition. Accordingly, I find that s26(1)(h) of the Act is made out.

7. Considerations and Decisions in respect of Nick Lang Contracting SW Ltd

Having already made the adverse finding at inquiry that the operator was unable to demonstrate that it satisfied the mandatory and continuing requirements of s13A(2) as to financial standing I am satisfied that the operator has not rectified the position during the period of grace it requested. I must now direct that the licence be revoked under s27(1)(a). I do so with effect from 23:45 hours on 31 December 2021 to allow for an orderly running down of the business.

I have set out my findings above that breaches under sections 26(1)(c)(iii) and 26(1)(f) of the Act are made out. I have considered whether I could allow this operation to continue even if I were not obliged to revoke it because of lack of financial standing.

Having regard to the Senior Traffic Commissioner’s Statutory Document 10, Annex 4, and having considered all the evidence, I place this case in the serious category. There was ineffective management control and insufficient systems and procedures in place to prevent operator licence compliance failings; insufficient procedures in place to ensure compliance by drivers with drivers’ hours requirements; ineffective driver training with ineffective monitoring and disciplinary procedures in place; road safety critical defects, including “S marked prohibitions and a low average first time pass rate at MOT. On the positive side, the operator co-operated with the enforcement investigation.

I’ve considered the situation now and evidence put forward in that regard. I noted that Ms Beynon became involved after the DVSA investigation and there had been several transport managers since Casey Jones resigned. I accept that improvements have been made, however I am not satisfied that “sufficient and effective” changes have been made to ensure compliance. I noted the evidence of VE Harris and TE Thomas who assessed the maintenance and other compliance documents provided for the inquiry covering the previous 6 months. Whilst these showed an improvement in the operator’s systems, the examiners did raise concerns about continued compliance failings. Their analysis of those documents revealed that a vehicle had been used in September 2021 whilst not specified on the licence. No first use inspection was carried out on that vehicle before it was placed back on the licence and the previous safety inspection was dated July 2020. The operator accepted that this had been missed and that the vehicle should not have been used in September 2021. I considered that to be a serious oversight which would have been prevented had robust maintenance systems been in place. There was also evidence that a vehicle that had been removed from the licence on 2 January 2021 was used on 17 separate occasions during February 2021.

I noted the evidence of Mr Cussons concerning improved systems that he had introduced during the short period that he was employed as transport manager, but also his evidence that the operator “was not there yet”. I also had regard to the evidence of Mr Neil Thomas, transport consultant, whose most recent audit of the operator’s systems also noted an improvement but identified ongoing issues with brake testing not being properly recorded on PMIs and the need to reduce driver infringements and overspeed.

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 have had regard to the failures I had found proved which were serious, but also the ongoing failures as recently as September of this year with a vehicle being used which, according to the operator’s own records, had not had a safety inspection for over a year. On balance, therefore, 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 set out in the Senior Traffic Commissioner’s Statutory Document 10, Annex 4, and discussed above. This was a bad case and the starting point for regulatory action was serious. I also take the view that other operators who carry out their businesses in a compliant manner would be shocked if another operator were permitted to operate vehicles against this background. I considered representations made by Ms Beynon and by Mr Owen on behalf of the operator as to the effect that revocation would have. In the circumstances of this case, it is appropriate and proportionate to answer the Bryan Haulage question in the affirmative and I consider that revocation is the proportionate regulatory response.

Ms Beynon is the sole director of the business, having taken on that role earlier this year. However, she has not yet purchased the business from the Ms Kim Williams, apparently due to a disagreement about the purchase price. I do not consider that it is necessary or appropriate to take disqualification action against Ms Beynon under s28 of the Act.

8. Considerations and Decisions in respect of transport manager Casey Jones

Having concluded that Casey Jones’ good repute as transport manager is lost, I must also disqualify him under paragraph 16(2) of Schedule 3 to the Act from being a transport manager on any licence. He is disqualified with effect from 23:45 hours on 7 December 2021.

As a rehabilitation measure, I set the requirement for Mr Jones to re-sit the Transport Manager CPC examination, given that it is over 20 years since he gained that qualification and that his only experience of acting as a transport manger in that time was the 14 months that he acted in that capacity on this licence. Should Mr Jones wish to be appointed as a transport manager in the future, he will require to appear before a traffic commissioner to determine whether his repute should be restored.

9. Considerations and Decisions in respect of Granville Lang

I was told that Mr Lang is no longer operating. He has retired, disposed of his vehicles, and wishes to surrender his licence. I was invited to allow him to surrender his licence and to give regard to his unblemished career. However, based on the evidence set out above, I have made findings including that he is no longer fit to hold a licence. In the circumstances of such compliance failures revocation is the appropriate action. Accordingly, I now direct that the licence be revoked under s26(1)(c)(iii), 26(1)(f) and 26(1)(h) of the Act with effect from 23:45 hours on 7 December 2021.

Victoria Davies

Traffic Commissioner for Wales

3 December 2021