Decision

Decision for PSM Recycling and HIAB Services Limited

Published 18 October 2024

0.1 IN THE WELSH TRAFFIC AREA

1. DECISION OF THE TRAFFIC COMMISSIONER FOR WALES

2. PSM Recycling and HIAB Services Limited – OG2040506

3. Background

The operator, PSM Recycling and HIAB Services Limited holds a restricted operator’s licence authorising 2 vehicles (OG2040506). The licence was granted at a public inquiry before me on 25 May 2021.  The sole director of the operating company is Laura Powell who gave written assurances prior to that public inquiry, and verbal assurances to me at that inquiry, that her fiancé, Clint Mcdermott Probert, would not be involved in the running of the business. There had been concerns about the potential unlawful operation of a vehicle by a company of which Mr Probert was a director before it was dissolved in 2021.     

On 18 October 2023, the Driver and Vehicle Standards Agency (“DVSA”) encountered one of the operator’s vehicles being driven by Clint Mcdermott Probert and issued him with a drivers’ hours prohibition notice for failing to use a tachograph record sheet or driver card.  DVSA also allege that he was driving the vehicle without a valid driver CPC and that he failed to produce tachograph record sheets, driver card or print out at the roadside.  During interview on 15 December 2023 Mr Probert stated that the business (PSM Recycling and HIAB Services Ltd) belonged to him and his partner (Laura Powell) and that they both managed and run the business. The roadside encounter triggered a DVSA Traffic Examiner (“TE”) investigation into the operator’s systems for complying with operator licence requirements. The report from TE Williams following her visit on 29 January 2024 and her subsequent investigation was marked “unsatisfactory”.  Her report detailed shortcomings, including the following:

• The Responsible Person on the licence demonstrated unsatisfactory relevant continuous professional development;

• Driver CPC not monitored;

• No training system in place for loading and load security;

• Evidence of only one driver licence check conducted in December 2023;

• No system in place to manage tachograph calibration dates; and

• The operator failed to provide the DVSA with tachograph data following a formal request and, despite the deadline given for the operator to respond to the failings identified in the TE’s report being extended, the operator failed to respond to the DVSA’s findings.

4. Public Inquiry

In light of the information received by DVSA, the operator was called to a public inquiry to consider whether the operator remained fit to hold an operator’s licence, whether it continued to have sufficient financial resources to keep two vehicles in a fit and serviceable condition, whether it had had prohibition notices issued to its vehicles or drivers and whether it continued to comply with the rules on drivers’ hours and tachographs.   The call up letter advised the operator that a public inquiry would be held at 2pm on 11 September 2024 in Pontypridd.  The call up letter explained that, if the operator did not attend, the case would be heard in its absence.  It also clearly explained the regulatory action that I might take. The operator was asked to send recent documents evidencing its compliance with the operator’s licence requirements to TE Williams, and evidence of finances to my office in advance of the hearing.  

The public inquiry called in Pontypridd on 11 September 2024.  In advance of the hearing, TE Williams produced an update statement dated 29 August 2024 confirming that she had not received any of the requested documents from the operator, and that statement was served on the operator before the hearing. The operator did not attend the inquiry hearing and did not submit any written representations in advance of the hearing. Nor did the operator submit evidence of its financial resources as requested. I was satisfied that the call up letter and Brief were properly served by recorded delivery (evidence was produced) and by email, and that it was in the interests of justice to proceed with the hearing in the operator’s absence.  I indicated that I would make my decision on the evidence available to me included in the public inquiry brief and the TE’s update statement, and I reserved my decision.

5. Findings

I make the following findings based on the evidence before me and on the balance of probabilities:

The operator’s drivers have been issued with prohibition notices by DVSA in the past five years (section 26(1)(c)(iii) of the Act refers);

The operator has failed to fulfil the undertakings on the licence, namely to observe the rules on drivers’ hours and tachographs and keep proper records (section 26(1)(f) of the Act refers);

By failing to respond to the DVSA request for information or its report, failing to engage with my office or attend the public inquiry hearing or provide any of the requested documentation, the operator has shown that it is not fit to hold an operator’s licence. I also have concerns about the involvement of Mr Clint Mcdermott Probert in this operator’s business given what he stated to the DVSA during interview, which directly contradicts what Laura Powell assured me prior to this licence being granted.

In view of my findings about the operator’s failures I am entitled to question the operator’s fitness to hold a licence.  I find that there has been a material change in circumstances of the licence holder, namely that it no longer remains of the required fitness to hold an operator’s licence. Furthermore, in the absence of any financial evidence, I am not satisfied that the operator holds the necessary financial resources to hold a restricted heavy goods vehicle operator licence (section 26(1)(h) of the Act refers).

6. Balancing exercise and decisions

In considering the balancing exercise to determine appropriate regulatory action, I have considered the negative and positive features of this case.  On the negative side there was ineffective management control and insufficient procedures in place to prevent operator licence compliance failings; and there was ineffective or insufficient driver training particularly as regards loading and load security.  There is very little to put on the positive side of the balance, other than the fact that the operator has not previously been called to Public Inquiry since the licence was granted in 2021.  The operator’s failure to attend the hearing or provide documentation meant that the operator had passed up the opportunity of demonstrating how it is acting in compliance with the licensing requirements.  The negative features of this case, as set out in my findings above, significantly outweigh the positives. I consider that this case falls into the “serious to moderate” category when considering the starting points for regulatory action and having regard to the Senior Traffic Commissioner’s Statutory Document 10.

I find the answer to the Priority Freight (2009/225) question of how likely is it that the operator will comply in the future to be “unlikely”.  That is in view of the findings I have made and outlined above.  In considering the Bryan Haulage (no.2)(2002/217) question “is the conduct such that the operator ought to be put out of business?”, I have had regard to the positive and negative features of the case.  However, the evidence demonstrates to me that the operator fails to operate in a compliant manner, fails to engage with the enforcement authority or the regulator and that the operator is no longer fit to hold an operator’s licence. I consider that it is both proportionate and appropriate to answer the Bryan Haulage question in the affirmative and revoke this licence with effect from 23:45 hours on 15 September 2024 to allow a short period for an orderly run down.

I make no order for disqualification under section 28 of the Act, however, should the operator or its director wish to apply for another operator’s licence in the future they will need to satisfy the traffic commissioner that they meet the statutory requirements and this Decision will be highly relevant in that regard.

Victoria Davies

Traffic Commissioner for Wales

11 September 2023