Decision

Decision for NRS Transport Ltd (OH1146102)

Published 1 June 2022

In the Western Traffic Area

Written Decision of the Traffic Commissioner

NRS TRANSPORT LTD OH1146102

Transport Manager: Angela Smith

Driver: Nicholas Roger Smith

1. BACKGROUND

NRS Transport Ltd is the holder of a Standard National goods vehicle operator licence authorising the use of four vehicles and two trailers from an operating centre at Ashwell Farm, Callington. Four vehicles are in possession. The sole director has been Nicholas Roger Smith and the transport manager Angela Smith (mother of Nicholas). The company is engaged in plant and machinery movements.

On 15 August 2020, DVSA Traffic Examiner David Cresswell encountered vehicle KX14OWA at the Sampford Peverill check-site. The driver was Nicholas Smith. Mr Smith was using the driver card of a Keith Amos. The trailer was issued with an immediate prohibition for a tyre defect. The tyre had been recut too deep such that the cords were exposed which caused the issuing officer, Vehicle Examiner Lee Balsdon, to annotate the prohibition as signalling a significant failure of compliance systems.

Both examiners conducted follow-up visits on 25 August. Present at the time of the visit was transport manager Angela Smith and director Nicholas Smith. Both examiners identified serious shortcomings across compliance systems and concern with the competence of the transport manager.

These issues caused me to call the operator and transport manager to public inquiry. Mrs Smith is also transport manager and partner, with her husband Roger Smith, of licence OH0212345 which had been the subject of a DVSA investigation and which I called to a conjoined public inquiry. Also called to driver conduct hearings were Richard Smith and Keith Amos.

Shortly before the hearing, Mrs Smith resigned as transport manager of NRS Transport Ltd. An application was made to add Steve Rogers in her place.

2. THE PUBLIC INQUIRY

Nicholas Smith attended for the operator along with Steve Rogers represented by Laura Hadzik, solicitor. Roger Smith and Angela Smith attended represented by Paul Atkinson, transport consultant. Keith Amos attended for his conduct hearing.

Documents were provided in advance in line with the continuing Covid guidelines. Also provided was a statement in relation to the partnership licence.

2.1 The relevant evidence of Keith Amos

Mr Amos is the maintenance provider to both operators and to others. He had used an NRS tractor unit to recover a broken-down vehicle. I was provided with an invoice supporting that. He only had a driver card to prevent missing mileage in customers’ vehicles. When using the NRS tractor, the vehicle unit had warned him that his card had not been downloaded. He gave his card to Nicholas Smith to have it downloaded. That was on the Friday before the DVSA encounter on the Saturday. I was satisfied that Mr Amos was not a party to any sort of conspiracy and had no reason to expect that his card would be mis-used. I issued a formal warning of the need to keep his card in his possession at all times and closed his case.

2.2 The relevant evidence of Angela Smith

Mrs Smith had attended a two-day refresher course on 11 and 12 November and had learnt a lot. I had reviewed the compliance documentation and I was satisfied that, as of the day of the inquiry and since the DVSA investigation, matters with the partnership licence had very largely been corrected such that, having recorded relevant undertakings, no regulatory action against that licence was required.

Mrs Smith had known nothing about the misuse of Mr Amos’ card until she was told by her husband who had been called by her son. She had not even known that her son had gone out in the lorry and had been angry about it. Following the visit to NRS in August 2020, she had instructed a transport consultancy, Red Phoenix, to help her put matters right. They had visited two or three times but then became uncontactable. It hadn’t worked out being both mother and transport manager.

2.3 The evidence of Nicholas Smith

On 15 August 2020, he had been contacted by a good customer who had an emergency job to move a telehandler from Saltash to Weston-super-Mare. Neither of his two drivers was available. He had driven Monday to Friday and was out of hours to complete the job. He had Mr Amos’ card in his pocket and decided to use it.

When he had been directed into the check-site, he panicked. He removed Mr Amos’ card and initially told the examiner that he hadn’t been using a card at all, having left his own in another vehicle. When the examiner started the process to download the vehicle unit, Mr Smith admitted using Mr Amos’ card and handed over both that card and his own. He had only used the card due to pressure from a big customer. He had been unable to produce his DQC because he had left it in a different pair of jeans. He had the qualification, just wasn’t carrying it.

He had since taken himself off the road and employed another driver. He now just covered sickness and holidays. He had never used another person’s card before or since. He had attended a two-day operator licence awareness course in November and was planning to sit the CPC course in March. If he lost his driving entitlement, he would be unable to cover sickness and holiday and would probably employ another driver.

Following the DVSA investigation, he reduced inspections to 4-weekly and introduced roller brake testing. It was straightforward to load vehicles for testing. He had got a 12-month wall-planner. The maintenance provider did gate checks on drivers. He had stopped using recut tyres. Tyres were inspected each weekend by a contractor. All four vehicles had passed their MOTs first time in 2021. All drivers held a qualification in loading and securing. Steve Rogers had started looking into systems. An external audit could be undertaken in 3, 6 or 12 months.

Revocation would end the business and put four people out of a job. He had personal guarantees on loans and would lose his house. If the licence was suspended, he could sub-contract the work for a period. Some drivers were owed holiday. All four were on the books and paid holiday pay. He could support them for maybe 3 weeks over and above their holiday period. His wife had become a director to exert control, mainly on finances. She would spend about fifteen hours a week and would undertake relevant training. He had found an independent transport manager.

I questioned the employment of drivers. I have since seen that they are properly employed.

2.4 The evidence of Steve Rogers

Mr Rogers had been a driver and was now a driver trainer for a large Cornish operator working four days a week. He drove in-scope occasionally, maybe once a week or once a fortnight. He was transport manager for three businesses, one of which he undertook as part of his main role. The other two were small and local. His transport manager duties were not recorded on his tachograph. The weekly schedule described appeared regularly to breach weekly rest requirements.

2.5 Closing submissions – Ms Hadzik

In relation to Nicholas Smith, there were two separate matters. First is his fitness as a driver. He had driven for a year after the offence without issue and had then made the decision himself to come off the road. The relevant starting point in STC SD6 was to revoke entitlement and disqualify for 12 months for a single offence. The circumstances were on all fours with case example 24. I could depart from the starting point because of the otherwise clean history. There had been training since. It was some time ago. Mr Smith had taken himself voluntarily off the road. He will have to take on a 5th driver to cover holidays and sickness. The failure to carry the driver qualification card warranted only an in-office warning.

In terms of the operator’s licence, a lot had been done on the systems. He had attended a two-day course. The systems could be confirmed by an audit in six months’ time. Mr Smith had been the sole director. It was more likely than not that he was capable of running a compliant operation. He had seen the impact of not doing so. His wife will provide support and would undergo training. My concerns with Mr Rogers [failure to record all his working time and potentially breaching drivers hours rules] were noted. The operator expected action to be taken. He had no formal contracts for work but had four employed drivers. A period of grace could be provided either for Mr Rogers to establish his position or for an alternative to be found.

2.6 Closing submissions – Mr Atkinson

Mrs Smith had no knowledge of the misuse of Mr Amos’ tachograph card. She had resigned as transport manager. It hadn’t worked being both a mother and the transport manager. She had taken action immediately that DVSA became involved by engaging Red Phoenix. She had received more recent help from Dave Robbins (a transport consultant). There had been no further compliance issues.

3. CONSIDERATION AND FINDINGS OF FACT

The, then, sole director made a business decision on 15 August 2020 to carry out a job for which he had no legal driver. He sought to hide that by using an innocent party’s driver card without their knowledge. Had he not been stopped on that actual journey no-one would ever have been the wiser. The ensuing investigations found matters were very badly awry.

Review of the maintenance documentation today shows vehicles inspected 4-weekly. There is roller brake testing at some but not all inspections. I am concerned at the standards applied during those inspections as a vehicle signed-off as roadworthy needed significant work to prepare it for an MOT only 3 weeks later. The associated trailer had many serious defects but I did not have the benefit of access to its previous PMI. The maintenance provider was in the room and will have heard those concerns. MOT standard is the minimum required, not something that should be an aspiration. The standard to be applied at a preventative maintenance inspection must be higher. Mr Amos has the appropriate qualifications and facilities. This can and must be put right.

I was surprised that Mr Smith engages the person who recut the tyre prohibited on 15 August 2020 to inspect his tyres each week. The weekly inspections are positive. The use of an incompetent person is not.

The real matter here is the good repute of an operator whose director was willing for commercial reasons to commit a fraudulent act. Article 6(2)(a) of EU Regulation 1071/2009, as adopted into UK law, requires that I find that good repute is lost in a case where the operator is “Driving with a driver card that has been falsified, or with a card of which the driver is not the holder” (emphasis added). The only exception is where I find that loss of good repute is disproportionate. If I do find it disproportionate, I must give my reasons.

Nicholas Smith is no longer the sole director. I have no evidence that such conduct took place before or since. The incident has clearly put pressure on the family unit. There has been a positive response to the DVSA investigations, relevant training and engagement of proper legal advice. On balance, the likelihood of a repeat offence seems low. I find that Nicholas Smith’s good repute is badly tarnished but not lost.

Mrs Smith told me that she did not even know her son had gone out that day. I accept that which is a double-edged sword. On the one hand, it allows me to find that she knew nothing of the falsification and did not and would not condone it. On the other, I remind myself that the transport manager’s role is to have continuous and effective management of the transport operation. EU Regulation 1071/2009 states that an external transport manager such as Mrs Smith must have responsibility, amongst other things, for “verification of transport contracts and… the assignment of loads or services to drivers and vehicles”. Had Mrs Smith undertaken those activities, very likely the job would have been refused and almost certainly her son would not have been driving using her maintenance provider’s card. Nowhere in that Regulation can I see that it is the transport manager’s role to have a cup of tea and a chat with the operator but that seems to have been the primary activity. But I do not go as far as to find that Mrs Smith was transport manager in name only. She was present at the DVSA investigation and co-authored the response to the DVSA findings. There was some involvement if far from enough. As with her son, I find her good repute to be badly tarnished but not lost and I therefore make no order for disqualification.

I turn now to the matter of regulatory action and I am assisted by the Senior Traffic Commissioner’s Statutory Document No 10 and its annexes. Using another person’s card is a deliberate and reckless act and places this case firmly in the severe category which indicates that I should take action which materially affects the transport operation and consider revocation and disqualification. I have already found that I do believe that this is an operator who can be trusted to comply in the future. Revocation is not necessary.

In the positive, the use of another person’s card is an isolated incident. There was positive action following the DVSA investigation, at least initially, through engagement of Red Phoenix transport consultants. I have been made aware by other operators that Red Phoenix has been at times unreliable. There has, albeit recently, been training. There has been an attempt to engage an independent transport manager. The MOT performance is improving if not in accordance with the operator’s oral evidence, there having been initial failures on 30 November and 31 January. It is sixteen months since the DVSA encounter and investigation. Inspections are now on time and at a reduced period of four weeks. There is some roller brake testing. I am offered an undertaking for an audit.

In the negative, there were serious mechanical prohibitions issued at the roadside. When a vehicle was presented to Exeter test station, it had no brakes on one wheel. Systems at the time of the investigations were very poor and the transport manager was not exerting continuous and effective management. The proposed replacement transport manager appears in the constant habit of failing to keep a record of his working time and appears also to breach weekly rest requirements.

There are no contracts but there are four employed drivers. It may be that they can be found other work for a period. It was indicated, I think fairly, that each driver had a period of leave which could be taken and that the operator could in addition cope with keeping them on for three further weeks.

Having conducted a balancing exercise and having decided that the action I take should not put the operator out of business, I find that a suspension of four consecutive weeks is an appropriate action to take.

The proposed transport manager arrangements are unacceptable in that Steve Rogers does not enter his other work on his tachograph record as he is required by law to do. He seemed unaware of that. Either he needs some urgent retraining and re-planning of his working week, or the operator needs to find an alternative transport manager – which cannot be Mrs Angela Smith. Nicholas Smith needs someone watching over him and it would be inappropriate for him to become transport manager until he can demonstrate a significant period of compliant operation. I grant a period of grace of two months for professional competence to be re-established. Note that, if that is not done, the licence will be revoked.

Finally, I consider Nicholas Smith as a driver. I have considered carefully Ms Hadzik’s submissions and can accept the general thrust. I must have regard to the Senior Traffic Commissioner’s guidance. For the reasons set out in Ms Hadzik’s submissions while noting that Mr Smith is no longer a full-time driver, I find a period of 6 months to be appropriate. Whilst I would normally revoke and disqualify for a 6-month period, that involves return of the licence to DVLA and subsequent re-application and may lead to Mr Smith being off the road much longer than is intended so I will suspend rather than revoke. I am aware that this may impede his use of the online licence checking service, but that access seems nugatory in the circumstances.

4. DECISION

Pursuant to adverse findings under Section 26(1)(f), that vehicles were not kept fit and serviceable and that the drivers hours rules have not been complied with, the licence is suspended for four consecutive weeks, to be served before 28 February 2022. I make an order under Section 26(6) that the vehicles on the licence now cannot be used under authority of any other licence for the period of the disqualification.

The good repute of transport manager Angela Smith is badly tarnished but not lost.

The application to add Steve Rogers as transport manager is refused.

I provide a period of grace until 17 February for professional competence to be re-established

The following undertaking is added to the licence, having been volunteered freely by the operator:

An audit shall be conducted by a competent independent person by 17 June 2022. The scope of the audit shall include systems for the management of maintenance, driver licencing, drivers hours and working time and the role of the transport manager in line with the requirements of EU Regulation 1071/2009 and STC Guidance. The audit report will be prepared, acted upon and retained for at least 2 years. A copy of the report together with the operator’s plans for implementing any recommendations is to be received by the Office of the Traffic Commissioner, Jubilee House, Croydon Street, Lawrence Hill, Bristol, BS5 0GB by 1 July 2022.

Pursuant to section 115(1)(b) of the Road Traffic Act 1988, the vocational entitlement of Mr Nicholas Smith is suspended for 6 months to be served in a continuous period before 31 July 2022.

Kevin Rooney
Traffic Commissioner

17 December 2021