Decision

Decision for Robyn Albert Gordon Llewellyn T/A Robyn Llewellyn OG0084523

Published 15 September 2021

1. DECISION OF THE TRAFFIC COMMISSIONER FOR WALES

2. PUBLIC INQUIRY HELD AT PONTYPRIDD ON 13 JULY 2021

Robyn Albert Gordon Llewellyn T/A Robyn Llewellyn OG0084523

&

Transport Manager Robyn Albert Gordon Llewellyn

3. Background

Robyn Albert Gordon Llewellyn, trading as Robyn Llewellyn, holds a Standard National Goods Vehicle Operator’s Licence authorising 2 vehicles and 2 trailers. Robyn Albert Gordon Llewellyn is also the authorised Transport Manager on the licence.

There is one Operating Centre at Cwrt Llaca, Llanvihangel Crucorney, Abergavenny, NP7 8EH. The declared maintenance provider showing on the licensing record is “internal” at the operating centre address undertaking Preventative Maintenance Inspections (“PMIs) of vehicles and trailers at 6-weekly intervals.

This standard national operator’s licence was granted from 5 February 1992, initially authorising 4 vehicles. Following a public inquiry held on 12 December 2012, the licence was suspended for 10 days, adverse findings having been made under section 26(1)(f) of the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”) and curtailed to 2 vehicles because the operator only demonstrated financial standing for 2 vehicles.

4. Hearing

The Public Inquiry was listed for 13 July 2021, at the Office of the Traffic Commissioner for Wales in Pontypridd. The operator attended and represented himself. He was accompanied by Thomas Reddy (transport consultant) and his daughter, Tracey Llewellyn.

5. Issues

The public inquiry was called for me to consider whether there were grounds for me to intervene in respect of this licence and specifically by reference to the following sections of the Act: 26(1)(b) 26(1)(c)(iii), 26(1)(e), 26(1)(f), 27(1)(a) and 28.

In addition, Robyn Llewellyn 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.

Robyn Llewellyn was directed as operator and transport manager to lodge evidence in support by 6 July 2021, and in particular:

• Evidence of his financial standing, with a three-month average to meet the prescribed sum of £12,500.

• The original maintenance records for all vehicles for the last 12 months to include at least the following: preventative maintenance records including detailed brake test reports; driver daily defect reports; invoices for work done; wheel removal/retorque records

• The original maintenance contract(s).

• Forward planner (or photographic evidence thereof if large).

• Evidence of systems for managing drivers for the last 12 months to include at least the following: driver licence checks; driver infringement reports; vehicle unit download reports; evidence of continuous professional development of relevant managers/planners/supervisors; evidence of disciplinary action received by drivers and managers.

• Anything else to help show you are a compliant operator or are taking steps to address the failings identified.

6. Summary of Evidence

On 18 August 2020, vehicle T340PDD was stopped by Driver and Vehicle Standards Agency (“DVSA”) Traffic Examiner (“TE”) Alexander Bell travelling on the M4 motorway between Magor and Coldra. The vehicle was laden with hay bales and was found to be overloaded and leaning to the offside into the direction of passing traffic, with concern that the load may shed into the overtaking lanes on the motorway. The vehicle was driven by Robyn Llewellyn and was not specified on the licence at the time of the stop. The vehicle remained unspecified on the licence at the time of the Public Inquiry. The two vehicles specified on the licence at the time of the stop and the Public Inquiry are A845OVJ (specified 5 February 1992) and L426STR (specified 19 June 2012). Mr Llewellyn was advised by 3 DVSA Examiners over a 25 month period prior to TE Bell’s statement to specify vehicle T340PDD on his operator licence but failed to do so.

TE Bell describes the stop at Coldra Weighbridge (pages 35 to 38 of the PI Bundle). His inspection of the vehicle revealed that it was overloaded to the rear axle and to the gross weight of the vehicle. The vehicle was prohibited until the excess load was removed.

Upon inspection of Mr Llewellyn’s driving licence via software linked to DVLA, it was discovered that Mr Llewellyn did not hold the required category “C” driving licence entitlement to drive the vehicle in question. At the time of the vehicle stop and the time of TE Bell’s statement dated 22 April 2021 Mr Llewellyn was not licensed to drive vehicles with a gross plated weight exceeding 7500 kilograms. Vehicle T340PDD has a gross plated weight of 11990 kilograms. Mr Llewellyn was cautioned for offences of overloading, driving a vehicle otherwise in accordance with a licence and failing to specify the vehicle on the operator’s licence.

Mr Llewellyn produced 42 analogue tachograph records at the time of the stop on 18 August 2020. These had been completed by him and related to vehicles T340PDD (19 charts) and L426STR (23 charts) (pages 54 to 95). Automatic Number Plate Recognition (“ANPR”) evidence identifies vehicle T340PDD in use on the public highway between 25 March and 21 April 2021 – 57 sightings on 13 separate days (pages 43-44).

Due to Covid restrictions at the time of the vehicle stop, it was not possible for DVSA to conduct a formal interview with Mr Llewellyn, although he was cautioned and told that further enquiries would be made following the stop. It was explained to Mr Llewellyn that driving a vehicle which he was not licenced to drive was classed by DVSA as a “Most Serious Infringement” (“MSI”) which triggered a follow up visit to his operating centre to assess forward planning systems in place as a requirement of the operator licence agreement. TE Anthony Lewis contacted Mr Llewellyn by ‘phone and left a message on 8 September 2020. Having received no response, he sent letters on 30 September 2020, 2 December 2020, 16 December 2020 and 26 January 2021. Mr Llewellyn failed to respond to any of the correspondence and failed to attend a meeting at DVSA Coldra which had been arranged for 3 February 2021. Mr Llewellyn contacted TE Lewis on 4 February 2021 to say he had been too busy to attend the meeting and he failed to co-operate when invited to provide an alternative date (pages 39-40 and 102-105).

Mr Llewellyn submitted some of the evidence that had been requested in the call in letter in advance of the hearing date (see para 7 above). This comprised safety inspection reports for 2 vehicles L426 STR and T340 PDD over the previous 12 month period, financial evidence, wall planner and some vehicle invoices from an HGV repair garage. It was accepted by him that vehicle T340 PDD had still not been specified on his licence as at the date of the inquiry. He did not provide any driver defect reports for the same period, maintenance contract, evidence of systems for ensuring compliance with the drivers’ hours and tachograph legislation or evidence of training or disciplinary action received by drivers and managers.

Mr Llewellyn had not made himself available for interview or inspection of his operating centre, vehicle records, working time records or other relevant records, as requested by DVSA. DVSA had therefore been unable to inspect any records (other than the 42 analogue tachograph charts handed over at the time of the vehicle stop). Nor was DVSA able to investigate or report on the operator’s compliance with the licensing regime.

On the morning of the inquiry, TE Bell assessed the documents that Mr Llewellyn had submitted immediately prior to the inquiry (referred to at paragraph 13 above). These demonstrated that both vehicles were still being used up until very recently. The smaller vehicle was used less frequently, whereas the vehicle which Mr Llewellyn was not licensed to drive (and was still not licensed to drive at the date of the inquiry) was used much more frequently. Records indicated that it had done around 17,500 km in the last 12 months, with PMIs showing that it had done in excess of 13,000 km between 8 August 2020 and 1 June 2021.

TE Bell had concerns about the inspection records that Mr Llewellyn had produced as evidence for the inquiry. There were significant discrepancies between mileages shown on the tachograph charts produced by Mr Llewellyn on the date of the stop last August and the PMI records. Some tachograph mileage records showed significantly higher readings than the mileage readings shown on PMI sheets dated some weeks later. TE Bell’s evidence was that this could indicate that the PMI records had been fabricated, particularly as these were unusually clean and with very little recorded on them in the way of faults. An alternative explanation could be that there were multiple tachograph records which were incorrect. Either way, this is a matter of concern demonstrating inaccurate record keeping and that something is very wrong, given the mismatch of data. TE Bell also noted that an invoice from a garage showing rectification work to a vehicle had picked up faults which were not shown on PMI records dated shortly before the repairs were carried out. This indicated that the periodic inspections were not being carried out properly. TE Bell also expressed concern about brake testing as every PMI record simply stated “Road test OK” and there was no evidence that rolling road brake tests had been carried out over the past 12 months on either vehicle, as recommended by the DVSA best practice Guide to Maintaining Roadworthiness.

Given that Mr Llewellyn was not previously on notice of the evidence that TE Bell gave on the day of the inquiry regarding the inspection records produced by Mr Llewellyn, I adjourned the hearing for twenty minutes to allow Mr Llewellyn to consider any questions that he wanted to put to TE Bell in response. I also indicated that, whilst I would take TE Bell’s evidence into account, I would afford it more limited weight given that he was not on notice of it.

Mr Llewellyn did not contest the PI Statement of TE Bell (pages 32 to 105 of the PI Brief) and had no questions to put to TE Bell in relation to his evidence about the PMI records he had submitted for the hearing.

In response to questioning about why he had failed to specify vehicle T340 PDD on his operator’s licence since it was registered to him in 2013, Mr Llewellyn stated that he had sent a covering letter to OTC licensing office in Leeds along with his licence continuation fee in 2017, requesting the vehicle be specified. He did not produce a copy of the letter and he accepted that it was clear to him that the vehicle was not specified when he was stopped by DVSA in 2018 and again in 2019 when he was advised that failure to specify it was an offence and breach of his licence requirements. He accepted that he should have done more to ensure the vehicle was specified and that it was his responsibility to do so.

In relation to driving vehicle T340PDD, a vehicle that he is not licensed to drive, Mr Llewellyn accepted that he had continued doing so even after having been stopped by the DVSA and the offence brought to his attention. Mr Llewellyn’s evidence was that in about 2005 (a couple of years after his heart attack) a DVLA medical resulted in him losing his previous vocational entitlement. He thought his consultant had spoken to DVLA to tell them that Mr Llewellyn was, in fact, fit to continue driving and that his entitlement should be reinstated. He had assumed that had happened, although accepted in hindsight that he should not have made that assumption and should have checked the position with DVLA. When asked why he had continued driving after the stop in 2018 (which had picked up that he was not licensed) he stated that, as he didn’t hear anything further from the authorities, he assumed they were not going to do anything more about it and continued to drive. Similarly, having again been alerted to the infringement in August of last year by TE Bell, he accepted that he continued driving vehicle T340PDD on numerous occasions knowing that he was not licensed to do so.

Mr Llewellyn could not explain why he had failed to co-operate with DVSA when they attempted to engage with him to carry out their investigation following the stop in August 2020. He apologised and did not seek to justify it or make excuses. He asked me to take into consideration an ongoing family dispute following the death of his wife’s parents in June 2019 which had taken its toll on him and meant that he had not been as in control of other matters as he would normally have been.

When asked to respond to the concerns about the mismatch between mileages shown on analogue tachograph records and the PMIs he had provided as evidence for the hearing, he put this down to errors that he had made when completing the sheets. He explained that he does not complete the periodic maintenance inspection records at the time he conducts the inspection. He includes the information in a book and then fills in the sheets at a later date. Upon further questioning by me as to why he adopts this irregular system, rather than simply completing the report at the time of the inspection and signing the record to indicate the vehicle’s roadworthiness as at that date, his response was that it was to prevent the PMI sheets getting oily and dirty. When asked when he had completed the sheets he had provided to my office he stated that some would have been done in the spring and some six weeks or so ago, but he couldn’t be sure. He confirmed that the PMI sheets produced for inquiry were not the original maintenance records and the book he referred to was not produced in evidence. He rejected the suggestion that the PMIs had been fabricated but was clear that these were not the original maintenance records. As to brake testing, his evidence was that he tested his vehicles by taking them down a steep pitch on his property.

Upon questioning about his role as transport manager Mr Llewellyn explained that he had never passed a Certificate of Professional Competence, had never done a refresher training course, and had acquired his transport manager status by virtue of “Grandfather Rights”. He accepted that he had not kept up to date with developments. When questioned about how he ensures that he can continuously and effectively manage by keeping up with relevant developments in compliance requirements and legislation he stated that he used to receive a publication from DVSA called “Moving on”. However, since that publication moved exclusively online, he had not received any update information.

I asked Mr Llewellyn to address me on the implications for him as both operator and as transport manager of the various regulatory sanctions that may be imposed which were set out in both call in letters, including the impact of revocation and disqualification. Mr Llewellyn advised that his business was 50% farming and 50% haulage and that revocation would result in him losing his animal feed and hay business. He indicated that the farming element of his business, alone, isn’t enough to be viable. Whilst his business could operate locally without the licence using tractor and trailers, that would not work for longer journeys. If Mr Llewellyn were to be disqualified from acting as a transport manager, he would need to find a replacement and they were in very short supply in his area.

Mr Llewellyn invited Mr Thomas Reddy to give evidence. Mr Reddy is a qualified transport manager who is the transport manager on a licence held by one of Mr Llewellyn’s friends. Mr Reddy explained that he would not have capacity to act as transport manger on Mr Llewellyn’s licence but had agreed to assist Mr Llewellyn by sending in records to my office and would be prepared to assist Mr Llewellyn in a transport consultancy capacity, should he be permitted to retain his licence. He had met Mr Llewellyn for the first time only two weeks prior to the inquiry and there is no contract for services or transport consultancy arrangement in place.

Ms Tracey Llewellyn (Mr Llewellyn’s daughter) gave evidence that she had done a little driving for her father, having acquired her Cat 3 HGV licence and driver’s CPC. It was her intention to assist her father with the business going forward, and to work towards qualifying as a Transport Manager, taking over that role when the existing licence comes up for renewal next year.

I heard evidence in camera in relation to finances. Mr Llewellyn accepted that he could not demonstrate financial standing for two vehicles as at the date of the inquiry. There were sufficient finances for one vehicle and he asked me to grant a Period of Grace for the full authorisation for a period of two months, by which time he would have received payment for invoices due which would more than cover the shortfall.

7. Findings of fact

It is undisputed that the operator was issued with a prohibition notice by the DVSA at the time of the vehicle stop on 20 August 2020 due to the overloading of vehicle T340 PDD. Accordingly, I find that section 26(1)(c)(iii) of the Act is made out.

The evidence is clear and accepted by Mr Llewellyn that he failed to comply with the undertakings on the licence that vehicles and trailers are not overloaded. He also failed to comply with the undertaking that the laws relating to the driving and operation of vehicles used under the licence are observed by driving vehicle T340 PDD whilst not licensed to do so, contrary to section 87(1) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988. This is classed as a Most Serious Infringement (“MSI”) by DVSA which required follow up inquiry and investigation according to their procedures. Mr Llewellyn also breached that undertaking by failing to specify the vehicle on his operator licence, contrary to sections 2(1) and (5) and 5(6) of the Act. Mr Llewellyn’s refusal to engage with the DVSA 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. Apart from the PMI sheets, wallchart planner and some invoices for maintenance work, no evidence was produced by Mr Llewellyn (as requested in the call up letter) to show that he is doing so in terms of driver defect reporting and retention of records, or of drivers’ hours and working time records. Accordingly, I find that section 26(1)(f) of the Act is 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 Mr Llewellyn’s failure to comply with the licence undertakings I am entitled to question his fitness to hold a licence, which is an essential element of good repute. Of grave concern is Mr Llewellyn’s failure to co-operate with the DVSA. The PI Statement of TE Bell, which was not disputed by Mr Llewellyn, identifies three separate incidents when Mr Llewellyn was stopped by DVSA examiners and he behaved in a very difficult and uncooperative manner (March 2018, August 2019 and August 2020). Having been advised of the need for a follow up visit to assess compliance with licence requirements and systems, following a compliance breach classed by the DVSA as a most serious incident, Mr Llewellyn repeatedly ignored correspondence from DVSA and failed to attend a scheduled meeting. This 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.

I am unable to reach a conclusion as to whether the PMI records submitted by Mr Llewellyn prior to the inquiry were fabricated, and I therefore make no finding in that regard. However, the call up letter was quite clear that he should submit “original maintenance records” which he has not done. According to his own evidence, the original preventative maintenance inspection records were written by him in a book and he then transposed those records onto the Tachoman PMI sheets some time afterwards – he could not be specific as to when, though it would appear from his evidence that some were recorded on these sheets many months after the original inspection. The book he referred to which apparently includes the original maintenance inspection records has not been submitted as evidence. There are obviously serious flaws with that system, as already described, and in the absence of any evidence to the contrary, I find that there was ineffective management control and insufficient systems in place to prevent operator licence compliance failings. There is no evidence whatsoever to demonstrate that the operator had analysis procedures in place to detect drivers’ hours or working time infringements.

Since August 2020 when Mr Llewellyn was again put on notice of the infringements he was committing (driving whilst unlicensed, failure to specify vehicle) he has made no effort to make changes to ensure future compliance. Despite being on notice over a period of years that he was not licensed to drive vehicles exceeding 7.5 tonnes, Mr Llewellyn persistently continued to do so. This demonstrates a complete disregard for the law and goes to the question of repute. Similarly, despite having been advised by DVSA examiners three times over a 25 month period that he was required to specify vehicle T340PDD on his licence, he had failed to do so, right up to the date of the inquiry. Mr Llewellyn has breached the trust placed in him as an operator which is fundamental to the operator licensing system and I find that he has lost his repute as an operator and no longer satisfies the requirements of s13A(2) of the Act.

Mr Llewellyn, 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 the business, 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), driver defect reporting and drivers’ hours/working time recording. As transport manager, Mr Llewellyn also failed to ensure that the undertakings on the licence were complied with and an overloading prohibition was issued to a vehicle driven by him. Whilst I have not made a finding that the PMI records were fabricated by Mr Llewellyn, the system he described of transposing maintenance inspection records onto Tachoman sheets some time after the inspections gives me cause for concern and it is clear that there is something seriously wrong with that system, given the mileage inconsistencies between those sheets and tachograph records and the fact that faults rectified by an external maintenance provider in December 2020 were not picked up on PMI records shortly beforehand.

It is particularly concerning that, in his capacity as transport manager, Mr Llewellyn repeatedly drove a vehicle which he knew he was not licensed to drive. He also failed to specify a vehicle on the licence when he knew it was a legislative requirement to do so. Inability to use the internet is not a reasonable excuse for such a failure. Mr Llewellyn was unable to demonstrate that he was up to date with the current requirements of the operator licencing regime and, by his own admission, had undertaken no continuing professional development for at least 10 years (which is when the DVSA publication “Moving On” moved from hard copy to an online platform). For these reasons, and having regard to the Senior Traffic Commissioner’s Statutory Document 3, I consider it a proportionate response to make a finding that Mr Llewellyn has lost his repute as transport manager and no longer satisfies the requirements of section 13A(3) of the Act.

8. Considerations and Decisions

I have weighed up these findings against the positive feature identified by Mr Llewellyn in his evidence which is relevant to him as an operator and transport manager (rather than of relevance to him as a driver). Of the prohibitions that have been issued, none of these were for road safety critical defects or were classed as “S” marked prohibitions by DVSA. I have taken that into consideration.

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 had regard to the failures I had found proved, particularly Mr Llewellyn’s failure to act on advice given by DVSA as to compliance failings and his deliberate failure to co-operate with the DVSA. I considered it highly unlikely that Mr Llewellyn would comply in the future.

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 also had regard to the Senior Traffic Commissioner’s Statutory Document 10, Annex 4. There have been persistent operator licence failures with an inadequate response and there is previous public inquiry history. Mr Llewellyn has engaged in persistent offending, he failed to co-operate with the enforcement investigation, has exercised ineffective management control and demonstrated insufficient systems to prevent operator licence compliance failings, has demonstrated no analysis procedures to detect falsification, drivers’ hours or working time infringements and had made no changes to ensure future compliance at the time of the inquiry. This was, therefore, a bad case and the starting point for regulatory action was severe to 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. In the circumstances of this case, it is appropriate and proportionate to answer the Bryan Haulage question in the affirmative. Having found in terms of section 13A(2) of the Act that Mr Llewellyn has lost his repute, I am required to revoke Mr Llewellyn’s operator’s licence under section 27(1)(a) of the Act. I do so with effect from 23:45 hours on 27 July 2021 to allow for an orderly running down.

Having found in terms of section 13A(2) of the Act that the operator no longer meets the requirements of financial standing, I am also required to revoke the operator’s licence under section 27(1)(a) of the Act.

Having concluded that Mr Llewellyn has lost his repute as transport manager, as he no longer satisfies the requirements of section 13A(3) of the Act, revocation of the licence is also mandatory under section 27(1)(b) of the Act.

Having concluded that Mr Llewellyn’s 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.

As a rehabilitation measure, I set the requirement for Mr Llewellyn to sit the Transport Manager CPC course. Should Mr Llewellyn 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.

Victoria Davies

Traffic Commissioner for Wales

21 July 2021