Decision

Decision for R&FC Ltd

Published 30 June 2021

0.1 IN THE SOUTH EASTERN & METROPOLITAN TRAFFIC AREA

1. R&FC Ltd OK2003349

&

2. VIDA BOVAINE – FORMER TRANSPORT MANAGER

2.1 GOODS VEHICLES (LICENSING OF OPERATORS) ACT 1995

3. TRAFFIC COMMISSIONER’S WRITTEN DECISION

4. Reasons

The Public Inquiry took place on 28th April 2021. At the end of the hearing, I gave seven days for a written closing and confirmed this decision would issue thereafter. Before preparing this decision, I have reviewed all the Public Inquiry papers, including updated reports and the written closing from the Operator’s solicitor. This decision is in short form as it was suitable for an oral decision but for the late hour at which we concluded the evidence.

This is a bad case. The licence was granted in 2017 and in January 2018 the Director and an adviser attended the New Operator Seminar. Within six months of that seminar, the Operator was based at an unauthorised operating centre – a breach of condition on the licence, and an offence. The Operator received prohibitions at the roadside on 28th February 2020 and 12th March 2020. Both sets of prohibitions indicated a maintenance system, including driver walkaround checks, that was not working.

Instead of the Operator heeding this as a warning that its systems needed an overhaul, in November 2020 DVSA found systems that were deficient or non-existent across all areas of maintenance and drivers hours and tachographs. At that point, the Operator was told that it needed to deal with the operating centre issue immediately.

I am told that a letter was written to my office in early December but that was not produced at the hearing. The first notification on VOL is 18th February 2021 when an application was lodged. That application did not request an interim setting out the urgent need to be able to officially park elsewhere. Unauthorised use of an operating centre is a breach of a condition on the Licence and a criminal offence (section 7 of the 1995 Act).

Regrettably there has been a delay in Leeds processing the proposed operating centre but it has been confirmed today that the wording of the advert does not meet the template. It is too late to readvertise and therefore an assessment would be needed as to whether the wording was prejudicial. Considering my decision at paragraph 1 I am not required to make that assessment. The advert is a further example of this Operator’s inability to deal with even the basics properly.

The updated reports for the Public Inquiry from the Traffic Examiner and Vehicle Examiner make disappointing reading. There is no discernible improvement across many areas. Indeed, any positives have only happened since the calling in letter and in reality, only since solicitors were engaged. Despite picking up prohibitions in February and March 2020, and the DVSA outcome in November 2020, the Director only attended an Operator Licencing Awareness Course the day before the Public Inquiry. Operator Licence Awareness training authorised and approved by Traffic Commissioners was available from April 2020 as part of numerous measures put in place to assist operator compliance during the national pandemic.

In terms of current professional competence, there is no specified transport manager on the operators licence. The proposed transport manager was due to be present on 28 April 2021 but was said to be feeling too unwell. However, no medical certificate was supplied or indeed anything from the transport manager direct. I refused an application at the start of the hearing for it to be adjourned for her to attend because road safety issues were paramount and because of the lack of any information from her.

Her application was withdrawn by the Director on 18th February 2021. I was told that that was inadvertent. I accept that it was because the Director was adamant that it was not withdrawn until I showed him the VOL record on a shared screen in the Public Inquiry room. On any event, the calling in letter went out on the 23rd March 2021 and the latest application was not submitted until 8th April 2021, preventing a full assessment prior to the Public Inquiry. It follows as a matter of record as at the date of the Public Inquiry the Operator does not meet the requirement of professional competence.

It is the Director’s evidence that effectively he had a lack of knowledge last year and early this year and he was distracted by challenges at home. whilst I am sorry that his wife is suffering ill health, but at no point did the Director stop operating and if the Operator choses to operate then its must comply. It is non-negotiable. The Operator has deemed knowledge of all the advice and guidance in the public domain as per 2012/030 MGM Haulage & Recycling Limited. That advice and guidance is extensive both in terms of maintenance and drivers hours. In addition, on the 18th March 2020, a full week before the first national lockdown, the Senior Traffic Commissioner issued an emergency statutory document – Emergency Planning and Contingency COVID-19. Alongside that is an advice document including FAQs to assist operators, transport managers and drivers to manage compliance during the national pandemic. If an operator chose not to look at or look for that advice, as here, then it should not be surprised when a Traffic Commissioner finds explanations less than compelling.

In my judgment this Operator has posed a risk to road safety and obtained an unfair competitive advantage for too long. Instead of putting his mind to compliance and taking the time to sit in his office, the Director has driven. In my judgment I cannot trust this Operator moving forward because the evidence today overwhelmingly says so. The steps taken, including as recently as the weekend before the hearing, are too little too late to save this licence. Revocation is not disproportionate, and it is entirely appropriate to put this Operator out of business to protect road safety and its competitors. The steps taken at the very last minute have been sufficient, just, for me to step back from disqualifying the Operator and Director for a period from holding or obtaining an operators licence. However, this must not be taken by the Director that any future applications would be granted. Each case turns on its merits at the time and the fact that a licence has been revoked means that any future application will receive close scrutiny.

5. Former Transport Manager

Ms Bovaine has been very honest in her evidence. She confirmed that she found the transport manager role challenging during the national pandemic and in particular the remote auditing. As a result, she resigned from all her transport manager positions. She has given me an undertaking that before she seeks to be a transport manager on any licence again, she will do a two day Transport Manager CPC Refresher. In light of the positive step taken to remove herself from the licences and that undertaking, I am prepared to step back from a formal finding of loss of good repute but her good repute is severely tarnished.

Miss Sarah Bell

Traffic Commissioner

Written confirmation: 1 June 2021