Decision

Decision for Samuel Githinji (OF2032914) and as Transport Manager

Published 10 February 2021

IN THE EASTERN TRAFFIC AREA

SAMUEL GITHINJI – OF2032914

AND

AS TRANSPORT MANAGER

1. CONFIRMATION OF THE TRAFFIC COMMISSIONER’S DECISION

2. Background

Samuel Githinji seeks a Standard National Goods Vehicle Operator’s Licence authorising 2 vehicles only. He has nominated himself to act as Transport Manager and offered an undertaking to complete CPC refresher training.

There is one proposed Operating Centre at Easton Lodge Estate, Wansford, Peterborough PE8 6NP. The application proposes one contractor: AD Hurst Commercial Ltd, to undertake Preventative Maintenance Inspections at 12-weekly intervals. No vehicle details were submitted at the time of application but a list was produced for the hearing: DK05 LYW (7.5 tonnes) and ES02 CMS (7.5 tonnes).

The applicant was previously Transport Manager on licence OF1016869, held by Ann Nduati. That licence was revoked following a Public Inquiry in 2004, when a finding was also made against Mr Githinji’s repute.

3. Hearing

The Public Inquiry was originally listed for today, 12 January 2021, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was present via video link.

The applicant was directed to lodge evidence in support of his application by 29 December 2020 and in particular to supply the following:

• evidence of his financial standing

• details of the proposed vehicle maintenance system, including sample safety inspection records, the daily defect reporting system, and the maintenance contract

• details of how he will comply with the laws regarding drivers’ hours

4. Issues

The public inquiry was called to allow the applicant further opportunity to satisfy me that the statutory criteria are met and specifically by reference to the following sections of the Goods Vehicle (Licensing of Operators) Act 1995:

• 13A(2)(b) – good repute

• 13A(2)(c) – financial standing

• 13A(2)(d) – professional competence by reference to a qualified Transport Manager of good repute and able to exercise effective and continuous management of the transport operation.

• arrangements to meet the requirements of section 13C.

The call up letter of 8 December 2020 (page 4 onwards) required the applicant to lodge evidence in support of the application by 29 December 2020, and specifically:

• details of proposed vehicle maintenance systems, including sample safety inspection records, driver defect reporting, and the maintenance contract

• details of compliance with drivers’ hours requirements.

5. Summary of Evidence

The applicant originally sought to rely on a joint account, with accompanying statutory declaration. It was noted that a transfer of a large sum was made on 3 April 2020, which appeared to originate from First Cargo Logistics Ltd. Documentation relating to this remittance application transfer was provided. The applicant referred to the sale of a car on commission. Companies House records suggest that the applicant is also listed as the sole director of Kaka Global Limited, incorporated in May 2019. In evidence I heard that this company has not traded and that vehicle sales have involved the applicant as a sole trader.

The financial evidence produced in the name of the applicant for the hearing was not sufficient to meet the statutory test. The applicant referred me to bills of lading and other documentation relating to the sale of vehicles in Kenya. Documentation was apparently received on 29 December 2020. That evidence was not sufficient to satisfy me as to the availability of funds. I refer to the summary of the law in the Statutory Guidance. For the benefit of the record the law requires me to take account of Statutory Guidance.

I also referred to the applicant’s Note on Financial Standing, which attached what is termed as a statutory declaration referring to his daughter-in-law. The declaration refers to her personal credit card. I have seen statements to that effect. A Statutory Declaration is a written statement of fact that is signed in the presence of a qualified person. There was no stamp or other indication, although I note that the entity mentioned on the cover form may be regulated by the Solicitors Regulation Authority.

As the appeal tribunal has held in cases such as 2017/007 Michael Hazell (No.2), the availability of finance is not a binary decision and that traffic commissioners should assess whether the facility, particularly credit cards, will in fact be used and are therefore “truly available” to an operator. This is because some facilities charge such a high interest rate, they are not compatible with a viable business model and raise the issue of fair competition if an operator was allowed to rely on a large credit facility without building up a working reserve to demonstrate financial standing. The Tribunal went on to confirm that traffic commissioners have a “discretion in relation to accepting or rejecting a particular source of funding or accepting or rejecting the level of reliance upon that source.” In this case, where the credit facility is in the name of another person entirely, I remained to be satisfied that this provides a sound basis for financial standing.

The appeal decision in 2012/017 NCF Leicester Ltd reminds us why this requirement is so important: “financial standing has always been considered to be a continuing requirement. In other words it is a requirement that the operator must satisfy for the duration of the licence….The purpose of the requirement to be of appropriate financial standing is spelt out, in general terms, in recital 10 to Regulation 1071/2009, which provides: “It is necessary for road transport undertakings to have a minimum financial standing to ensure their proper launching and administration”. In our view ‘administration’, for the purposes of this Regulation, means the organisation and running of a haulage business which holds an operator’s licence. In particular the requirement is intended to ensure that vehicles can be operated safely because the operator can afford to maintain them promptly and properly.

The applicant’s letter of 25 May 2020 (page 25) confirmed his loss of repute in 2004. In his words “after a year I broke traffic rules, although it wasn’t intentional”. I am mindful of the decision in 2017/055 Alistair Walter – in which the Upper Tribunal indicated that, where there is a loss of good repute as a Transport Manager, then loss of repute as an operator should follow. I noted that this was some time ago now but that he had not acted in that capacity since. In support of this application Mr Githinji has provided a certificate of attendance on an RHA online 2-day Transport Manager refresher course, which he completed on 30 and 31 July 2020 (page 24). However, that was not reflected in the evidence of the systems he would employ or indeed his understanding of operator licence requirements:

The applicant lodged various documents in support including:

• Note referring to his Transport Manager qualification in 1999, with recent refresher on 30/31 July 2020., his LGV1 vocational driving entitlement,

• Driver CPC status print-out dated 27 December 2020,

• Note referring to his repute, referring to his driving for various large operators, his standing in the local community with personal references. This refers to previous mistakes, from which he says he has learned.

• Personal references dated 21 December 2020, 14 December 2020.

• Parking permission for the site, but with a different address.

• Note on maintenance arrangements referring to a contract with Hurst Commercial, his attendance at a 3-year mechanics course between 1981 and 1983, and his intention to complete minor checks and repairs at the proposed facility at Easton Lodge.

• Handwritten note enclosing samples of maintenance records, mileage records, driver defect reports and drivers’ hours systems – weekly time sheet.

The applicant informed me that the vehicles were of an age that Adblue monitoring was not required. That being the case, he was unable to explain the decision to adopt inspections intervals of 12 weeks despite the contrary advice in the Guide to Maintaining Roadworthiness. He indicated that he had left the decision to the maintenance contractor. It was clear that he had not checked the proposed maintenance inspection form against the example provided in the same Guide. It made no reference to the relevant or any Inspection Manual numbers, omitted any section for brake performance readings and most troubling of all, had no declaration of roadworthiness, despite the undertaking provided as part of the application. He assured me that the nominated contractor had all necessary facilities including a covered workshop and pit but was unable to confirm how headlamp aim would be checked or what devices would be used to check brake performance and how often. I again refer to the age of the vehicles. He confirmed that he was unable to interpret a brake performance print out despite recent refresher training.

In his evidence the applicant informed me that both vehicles had been fitted with digital tachograph units. He proposed to download vehicle cards daily and proposed vehicle units be downloaded monthly. He has yet to obtain a business (‘company’) card in order that vehicles could be locked in. He has also yet to purchase a download device or any software, so he was unable to give detailed evidence on the proposed infringement reporting. He indicated that he would undertake the driving. In answer to my question why he required authority for two vehicles he explained that his cousin owned the other vehicles and that they would be undertaking the same type of work and operating from the same Operating Centre so that the applicant would be able to monitor his maintenance and other arrangements. The applicant gave all the impression that he was unaware that a licence must only be used by the person or entity to whom it is granted.

I refer to the Upper Tribunal decision in 2013/082 Arnold Transport Ltd: “The grant of an operator’s licence does not mean that an operator can then proceed on the basis that the requirements that must be met in order to obtain a licence can thereafter be disregarded. In our view it is clear both from the terms of the 2010 Act and from Regulation 1071/2009 that these are continuing obligations, which an operator is expected to meet throughout the life of the licence….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 this case the applicant was very frank with me but failed to satisfy me that he had satisfactory arrangements for securing compliance with drivers’ hours requirements and satisfactory facilities and arrangements for maintaining the vehicles used under the licence in a fit and serviceable condition. He failed to satisfy me that there is available financial standing to support the establishment of the proposed operation and maintenance of vehicles. The lack of knowledge demonstrated in pursuit of this application and particularly in relation to his cousin’s business calls into question his ability to exercise effective and continuous management as the Transport Manager and his general fitness as an operator, meaning that I remain to be satisfied as to his repute and professional competence. The application was accordingly refused by reference to sections 13A(2)(b), (c), (d) and 13C(2) and (4).

Richard Turfitt

Traffic Commissioner

12 January 2021