Decision

Decision for OK Transport Heysham Ltd

Published 17 September 2024

0.1 IN THE NORTH WEST OF ENGLAND TRAFFIC AREA

1. OK TRANSPORT HEYSHAM LTD   OC2031385

2. TRANSPORT MANAGER ANNA POCHLANIAK

3. CONFIRMATION OF ORAL DECISION OF THE DEPUTY TRAFFIC COMMISSIONER

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

4. Public Inquiry held at Golborne on 7 August 2024

4.1 THIS DECISION CONTAINS CONFIDENTIAL INFORMATION. THE RELEVANT SECTIONS INDICATED IN BOLD AND BETWEEN SQUARE BRACKETS ARE NOT TO BE PUBLISHED WITHOUT THE PERMISSION OF THE PRESIDING COMMISSIONER

5. Introduction

OK Transport Heysham Ltd (“the operator”) has held a standard international goods vehicle operators’ licence OC2031385 authorising the use of 4 vehicles and 4 trailers since 24 June 2020. There are currently 2 vehicles in possession.

The operator’s directors are Anna Jadwiga Ciesinka and Kamil Konrad Ciesinski (who are mother and son).

There is currently no Transport Manager (“TM”) named on the licence.

The TM between 16 June 2021 and 21 June 2024 was Anna Pochlaniak. Following her resignation, the operator was granted a period of grace on 20 June 2024 until today to appoint a new TM. On the eve of the Hearing, the operator nominated a new TM but that was too late for it to be meaningfully considered today.

On 21 April 2023 an immediate prohibition was issued in relation to one of the operator’s vehicles at a roadside encounter after it was found to have tyre defects. The trailer it was towing was also prohibited after it was found to have brake defects and an insecure load. The brake defect was considered to be long standing and was therefore “S” marked. The operator had previously received a prohibition on 24 February 2023 for a trailer that had an insecure load.

That prompted a DVSA maintenance investigation visit on 4 January 2024 when Vehicle Examiner Hirons made several unsatisfactory findings.

The Vehicle Examiner expressed concern about the number of stretched inspection intervals over the previous 12 months. He highlighted that the trailer prohibited on 21 April 2023 was at the time overdue a safety inspection by 13 days and such an inspection should have identified the brake defect. VE Hirons also expressed concern about the quality of the inspection reports and questioned if the driver defect reporting process was effective in view of the defects that led to the prohibitions. The quality of the inspection records was seen as poor.

Troublingly, the Vehicle Examiner was unable to secure a face-to-face meeting with TM Pochlaniak.  Consequently, he was not provided with any evidence of her continuing professional development and the overall findings called into question the effectiveness of her control of the licence.

TM Pochlaniak subsequently sent the DVSA a response to the report on behalf of the operator. The response claimed the driver had not informed the operator of the prohibition on 21 April 2023. Assurances were given that the DVSA’s concerns would be addressed.

The DVSA report led to the operator being called to this Public Inquiry together with Ms Pochlaniak as its TM at the time of the investigation.

Neither the operator, its directors nor Ms Pochlaniak had been called to a Public Inquiry or come to a Traffic Commissioner’s attention previously.

6. The Call to Public Inquiry

The operator was called up to Public Inquiry by letter dated 10 June 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), and 26(1)(f) 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 Pochlaniak was called up by letter also dated 10 June 2024 that gave notice of consideration of the requirement of good repute and professional competence in Schedule 3 of the Act.

7. The Public Inquiry

The Public Inquiry was heard at Golborne today. The operator was represented by directors Mrs Ciesinka and Mr Ciesinski. Mrs Ciesinka participated in the proceedings with the assistance of an officially appointed Polish interpreter.

Former TM Pochlaniak did not attend. Following the sending of the call-up letter, she tendered her resignation as transport manager to the operator and OTC with effect from 21 June 2024. Subsequently on 24 July 2024 she sent written submissions to OTC (as referred to below) and stated she was not currently employed as a transport manager. Ms Pochlaniak indicated in a phone call to OTC staff that she did not intend to be present at the Public Inquiry. She was warned by e-mail that she was still expected to attend.

I considered the guidance offered by the Senior Traffic Commissioner in Statutory Document Number 9 and specifically the contents of Paragraph 33 of the same, “In line with most tribunals there is a rebuttable presumption that a hearing will proceed as listed even in the absence of parties provided that: the Traffic Commissioner is satisfied that the party has been given the required notice, has been served with sufficient evidence, and that there are no other factors where the interests of justice require an adjournment.”

I am satisfied that Ms Pochlaniak has been properly alerted to the Hearing date and that without medical evidence or other good explanation for her absence, I am entitled to proceed in his absence. I also took account the number of other parties who were ready and eager for the Hearing to proceed on its given date.

8. Evidence

The call-up letters included a case management direction that the operator should send evidence of vehicle maintenance to VE Hirons at least 14 days before the Hearing so that he could provide me with a report on the current position. Unfortunately, the operators did not send that evidence to VE Hirons as directed until the morning of 5 August 2024. That did not give VE Hirons sufficient time to consider the material. It was sent to the Office of the Traffic Commissioner (“OTC”) by email on the same date and I was able to examine the documents to an extent.

The evidence submitted by the operator indicated that there had been no further examples of stretched inspections over the past 6 months although I remained concerned it was not using up to date PMI record sheets. There was some evidence of roller brake testing although one vehicle and one trailer did not appear to have been presented for roller brake testing in the period of nearly 5 months since 31 March 2024.

At the Hearing, Mrs Ciesinska was able to provide me with documentary evidence that all vehicles and trailers had been roller brake tested at recent PMIs. It was apparent that Mr Ciesinski had encountered technical difficulties whilst trying to share the evidence with DVSA and OTC beforehand.

The operator had previously sent evidence of its financial position and some other matters to OTC.

[REDACTED].

Entries on the bank statements also suggested that driver Kamil Sasask was self-employed and being paid through a service company.

Former TM Pochlaniak submitted written representations in advance of the Hearing. In these she claimed she had investigated the February 2023 prohibition and had taken appropriate remedial action. Ms Pochlaniak said she had not been informed by the operator of the April 2023 prohibition and was unaware of it until she saw the DVSA investigation report following the visit in January 2024. She claimed she had not received a satisfactory explanation from the directors on why she had not been informed of the prohibition.

TM Pochlaniak said she did try to implement some changes after the DVSA report and had delivered training on walk round checks to director Mr Ciesinski and another driver named Grzegorz Ciesinski. It was apparently agreed that director Mr Ciesinski would train the other driver, Mr Sasak.

Ms Pochlaniak said it became apparent to her that the changes she had requested had not been made. She also identified a concern about the operator’s financial standing. On this basis she informed the operator and OTC on 17 June 2024 that she was resigning with effect from 21 June 2024. It is noted this coincided with the call to public inquiry issued on 10 June 2024. Ms Pochlaniak provided some documentary evidence in support of her submissions.

Whilst it was regrettable that I did not have an updated report from DVSA, I considered that the documents submitted by the operator did show some improvements had been made, especially in relation to frequency of PMIs and roller brake tests.

9. Decision

9.1 OK TRANSPORT HEYSHAM LTD OC2031385

It is accepted that since TM Pochlaniak’s resignation on 21 June 2024, the licence has been without professional competence. The period of grace granted until today has expired without professional competence being restored. 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 also accepted the analysis that it does not have the required evidence sufficient financial resources. I additionally 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.

However, I am persuaded that revocation can be deferred and the period of grace in relation to professional competence can be extended and that a similar period of grace should be granted for financial standing.

The operator has acted promptly after the resignation of Ms Pochlaniak and has approached several potential candidates. I accept its efforts have been hampered as some candidates have been deterred by this imminent Public Inquiry. Other candidates did not have the international qualification the licence currently requires.

The operator has nevertheless now applied for a new transport manager to be appointed. Whilst I reach no formal determination on that application today, I am concerned the candidate lives and works in Northern Ireland and his ability to exercise continuous and effective management may well be called into question. I urge the operator to consider an alternative candidate. Mr Ciesinski asked if he could vary the licence to a standard national licence as that will allow him to contact those who have expressed an interest previously. I am content to allow that change.

The tangible evidence of the operator’s efforts so far to find a new transport manager are sufficient to persuade me that granting a period of grace will be worthwhile, and that there are reasonable prospects for a good outcome, applying the test set out by the Upper Tribunal in 2014/008 Duncan McKee.

The operator also asked for a period of grace in relation to its financial standing.

[REDACTED].

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Both periods of grace will expire on 14 October 2024 unless the statutory requirement is met sooner or either period of grace is extended beforehand. Any application to extend those periods must be submitted in good time so that it can be considered before the expiry date. Any such application must also be supported by tangible evidence of the steps taken by the Operator since this decision to identify a new transport manager or restore financial standing.

I remind the operator that in relation to both financial standing and professional competence, if a period of grace expires without the mandatory requirement being met then the Traffic Commissioner is obliged to revoke the operator’s licence without further notice.

In relation to the matters arising from the DVSA investigation, I make the following findings of fact based on the evidence contained within the Brief, the more recent documentary evidence submitted and the oral evidence of Mrs Ciesinka and Mr Ciesinski today:

• the operator has failed to notify changes in its maintenance providers or to inform OTC of events affecting its good repute such as the prohibitions. 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 a “S” mark prohibition. This satisfies the grounds for regulatory action in in Section 26(1)(c)(iii) of the Act;
• the operator has not fulfilled the promises made on applying for the licence to maintain his vehicles at 4-week intervals. This satisfies the grounds for regulatory action in in Section 26(1)(e) of the Act;
• honoured the undertakings that he 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.

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.

• road safety critical defects on any vehicle or trailer in service and the “S” marked prohibition.
• the previous lack of effective management control and lack of sufficient systems and procedures in place to prevent operator licence compliance failings as identified by the DVSA.
• the repeated prohibitions for load security within a two-month period in 2023.

On the other hand, I give the operator and its directors credit that this is its first Public Inquiry. I note the directors cooperated fully with the DVSA investigation and the Public Inquiry process (save for the issues in supplying the evidence digitally).

It is also a positive that there have been tangible improvements made to systems and compliance since the DVSA investigation as evidenced by the recent PMIs all being on schedule and the frequency of roller brake testing. I also give credit to the directors for their willingness to offer the undertakings recorded above.

Subject to the operator being able to meet the statutory requirements of professional competence and financial standing, I consider the directors are capable of delivering compliance in future.

Having balanced these factors and considered the evidence heard at the public inquiry, I consider this is a case that falls into the category of “moderate” for the purposes of considering regulatory action.

I determine that the appropriate and proportionate action is to curtail the licence to 2 vehicles and 2 trailers reflecting the number currently in possession and effectively removing the margin.

This order is intended to underline to the operator that the events that led to the public inquiry are unacceptable and must not be repeated. It is also intended to allow the operator to continue its business with its current 2 vehicles and to take that opportunity to show it can be trusted to be compliant.

If the operator delivers on the assurances of compliance I have been given today and is able to meet the statutory requirements (coupled with evidence such as a satisfactory audit) then it will be open to it to apply to restore or increase its authority.

On the other hand, I make it clear that if the operator fails to deliver on those promises, it can expect to be called back to public inquiry when far more sever regulatory action will be considered including revocation.

9.2 Former Transport Manager Anna Pochlaniak

I find that Anna Pochlaniak has failed to exercise the required degree of continuous and effective management of the licence during her tenure as transport manager.

I have considered the written submissions that she has provided but give this less weight than if she had attended the Public Inquiry in person to give evidence and answer questions.

The circumstances of the prohibitions in 2023 and the DVSA investigation in January 2024 all indicated a lack of effective control by Ms Pochlaniak. There were clearly long-standing weaknesses in the operator’s compliance that I would have expected a competent transport manager to have addressed far sooner such as the persistent instances of stretched inspection intervals over a 12-month period.

I note the evidence of Vehicle Examiner Hirons that he was unable to contact Ms Pochlaniak during his investigation despite several attempts to do so. This appears to be consistent with the evidence I heard from the operator’s directors that they found it very difficult to contact Ms Pochlaniak after her appointment as transport manager.

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 systems 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 Ms Pochlaniak fulfilled any of those responsibilities and clearly did not do so effectively.

I note she has provided some evidence of training she introduced and other measures, but also note that on her own admission some of the driver training was delegated to Mr Ciesinski to deliver. She has also provided some evidence of instructions she issued to the operator and drivers, but there is little evidence these words were every followed up by Ms Pochlaniak with actions or that they resulted in actual improvement. I considered the evidence showed that improvements in the operator’s compliance were more likely to have been driven by Mr Ciesinski taking a more active role in the company’s management than Ms Pochlaniak.

Although she claimed to have raised her concerns belatedly with the operator and that their lack of response led to her resignation, the timing of her departure following so soon after the issue of the call to Public Inquiry leads me to conclude this was a device intended to distance herself from the operator. If those concerns were genuinely held, I would have expected her to have resigned far sooner. I consider it telling that she left the directors to face the Public Inquiry alone.

I note that Ms Pochlaniak has still not provided any evidence that she has undertaken any continuing professional development despite the absence of such evidence being highlighted in the DVSA report. Finally, her failure to attend the Public Inquiry today and cooperate with the Traffic Commissioner is a significant further negative feature, which mirrors her failure to cooperate with the DVSA investigation.

I have balanced the negative and positive features set out above and consider the former far outweigh the latter. Consequently, I find that Ms Pochlaniak’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 Ms Pochlaniak to reflect on the circumstances that have led to this decision and to allow her to consider steps to demonstrate her rehabilitation should she wish to seek appointment as a transport manager in future.

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

Gerallt Evans

Deputy Traffic Commissioner

7 August 2024