Decision

Decision for Ruth Hayes (OK1047967)

Published 6 May 2021

0.1 IN THE SOUTH EASTERN & METROPOLITAN TRAFFIC AREA

0.2 RUTH HAYES (OK1047967)

0.3 GOODS VEHICLES (LICENSING OF OPERATORS) ACT 1995

1. TRAFFIC COMMISSIONER’S WRITTEN DECISION

1.1 RE HEARING ON 19 APRIL 2021

2. Decision

I do not accept the request to surrender the licence set out in the letter from Ms Hayes dated 12th April 2021.

Pursuant to adverse findings under Section 26(1)(b) and (h) and Section 27(1)(a) of the 1995 Act, the Operator no longer meets the mandatory requirements under Section 13A(2) good repute and professional competence. Accordingly, the licence is revoked with immediate effect.

3. Reasons

Ms Hayes was called to Public Inquiry because communications from Russell Waghorn indicated that this Operator had been without a transport manager for over a decade. Ms Hayes was aware that the hearing would proceed, and a decision would be made even if she did not attend and that a surrender would not necessarily be accepted. For the reasons that follow, I am not prepared to accept a surrender of this licence. In my judgement that would represent a possible manipulation of the operator licensing regime.

In 2005 this licence was granted shortly after an application (change of entity) for Andrew Barnden was refused (OK1041671). Mr Waghorn was nominated and accepted as transport manager on the Ruth Hayes application on 14th September 2005. In recent correspondence Mr Waghorn stated that he was not the transport manager on OK1047967 after approximately 4 weeks. At the Public Inquiry today Mr Waghorn said that he had never been a transport manager for Ruth Hayes and only Andrew Barnden trading as Barnden Transport. Further he said that he only agreed to be named whilst Mr Barnden sourced a permanent transport manager. When Mr Barnden had not done so after 4 or 5 weeks it is Mr Waghorn’s evidence that he told Mr Barnden that he resigned.

There is no record, from Ruth Hayes, Mr Barnden or Mr Waghorn, in 2005 or thereafter for many years stating Mr Waghorn was no longer the transport manager. Indeed every 5 year renewal checklist has Mr Waghorn as the transport manager. The transport manager questionnaires issued in 2012 for the changes in EU legislation were responded to by this Operator. The hearing bundle includes a copy of the 2012 questionnaire together with forms to obtain a duplicate CPC certificate for Mr Waghorn and attaching a copy of Mr Waghorn’s driving licence.

In Ms Hayes’ letter received on 15th February 2021 she states that the transport manager was on an annual retainer to keep the licence valid but as there was no work there had been no need for contact for some considerable time. This does not accord with the operator licence record. A check on VOL (Vehicle Operator Licence) for OK1047967 shows at least 1 vehicle has been specified since 2005 until even today. All vehicle changes on VOL have been made by Andrew Barnden (andy@barndenbuilders.co.uk). He is the only individual with admin access to the whole VOL record. Mr Barnden obtained self service access on 10th November 2016 and that access could only have been granted by a declaration signed by Ms Hayes lodged with the licensing team in Leeds. Since that date four vehicles have been specified and three removed. Mr Barnden last accessed the system on the 10th February 2021 at 16.51 and vehicle EY16 FHC remains on the operator licence today. This level of involvement is contrary to the statement in Ms Hayes’ letter of 28th February 2021:-

“Mr. Barnden has no role in the company; I used his email account to forward this information as he had a Gov.Gateway signature verification account and works out of the office next to mine so I used his email account to forward the relevant information that you required.”

This was in relation to the application to add Steve Jones as a transport manager. The reality is that the VOL record demonstrates that Mr Barnden has sole control over the VOL record, the adding and removing of vehicles etc. It was Mr Barnden who wrote to the central licensing office in Leeds on the 7th August 2012 dealing with the transport manager questionnaire (page 69 of the bundle).

On the face of the evidence before me not only has there been ongoing vehicle operations, but on balance the Operator appears to be Mr Barnden and not Ms Hayes. It is an offence to “lend” an operators licence because they are not transferrable. Further Mr Barnden’s own application for a licence was refused.

I now turn back to Mr Waghorn. In his evidence Mr Waghorn confirmed that Ruth Hayes was the life partner of Mr Barnden when he first met Mr Barnden. He believes they subsequently married. Mr Waghorn has only met Ms Hayes once, possibly twice, and never in terms of a business relationship. When I pointed out to Mr Waghorn that Mr Barnden had a licence refused in 2005 because of his previous licensing history Mr Waghorn expressed surprise. Mr Waghorn admitted that for the few weeks he was a nominated transport manager he had not looked at the vehicles or the records because Mr Barnden had a good reputation locally.

Mr Waghorn disappeared during the virtual hearing. A couple of times he came back in only to disappear again. On the first occasion my clerk telephoned him and made contact. However subsequent attempts to speak to him on the telephone were unsuccessful and emails were not responded to. Accordingly, at 3.30 I called a halt to the efforts and said that I would issue my decision. His disappearance happened during my questions on the following areas:-

• How Mr Barnden received Mr Waghorn’s duplicate CPC certificate in 2012 when OCR only sent the certificates to the CPC holder’s home address.
• Why Mr Waghorn had not spoken to Mr Barnden when he received his application bundle showing a duplicate certificate had been issued.
• The reason for the very significant fuel payment on 9th November 2020 and where that fuel is being stored/used.

The chronology above makes hard reading. To this day I find it extraordinary that a licence can effectively have an absent transport manager and probably an absent Operator for 20 years. It only came to light because of Mr Waghorn’s application for Hurst Mills Limited. As Mr Waghorn did not stay in the hearing it is difficult to make a formal finding on whether he was knowingly an absent transport manager and colluded in that, or whether the illusion of compliance was created through false documents. It is not something that is going to be resolved today. The fact that I even need to be asking these questions impacts on the good repute of Ms Hayes, Mr Waghorn and Mr Barnden. This case is an excellent example of what happens when individual transport managers fail to separately notify when they cease to be engaged with a particular Operator. That is why failure to notify a resignation seriously impacts good repute.

The Operator had nominated a Mr Steve Jones to “replace” Mr Waghorn but that was not pursued in light of the application to surrender the licence. That appointment was not accepted by me and was due to be considered at the hearing today. It means that as at the point of the hearing there was no transport manager and that is why I have made the formal finding of no professional competence. It is particularly pertinent to make that finding bearing in mind the many years without any professional competence within the business in the true sense of the word.

I make a finding of loss of good repute in relation to Ms Hayes because the VOL record does not tie in with her account. Based on the contradiction of her written evidence, Mr Waghorn’s evidence (whether absence or collusion) is the same, namely she has lent her licence to Mr Barnden.

Operator licensing is based on trust and the outcome of today is quite frankly that I do not trust any of them. The good repute of Ms Hayes is formally lost. Mr Waghorn was not formally in front of me in terms of his good repute but he did ask to attend as a witness to preserve his good repute. I find that it is not preserved, and should he apply again in the future for a licence or to be a transport manager then his application must be referred to a Traffic Commissioner or a Deputy Traffic Commissioner and must not under any circumstances be dealt with under any perceived delegation. Similarly with Mr Barnden, I am on notice that he has been operating under the radar for many years and therefore the same direction applies in relation to any future applications.

Miss Sarah Bell

Traffic Commissioner

Written confirmation: 20 April 2021