Decision

Decision for Silver Knight Haulage and Machineries Ltd (OD1047362)

Published 4 May 2021

1. DECISION OF THE TRAFFIC COMMISSIONER

1.1 Operator: Silver Knight Haulage and Machineries Ltd OD1047362

2. Decision

Standard national licence OD1047362 held by Silver Knight Haulage and Machineries Ltd (“Silver Knight”) is suspended for 28 days pursuant to Section 26(1)(h) and 27(1)(a) of the Goods Vehicles (Licensing of Operators) Act 1995 (“the 1995 Act”). The suspension will take effect at 0001 hours on 17 May and end at 0001 hours on 14 June 2021.

The licence is curtailed from three vehicles to two, with immediate effect and for an indefinite period of time, pursuant to Section 26(1)(f) of the 1995 Act.

Christopher Stanford has lost his good repute as a transport manager, pursuant to schedule 3 paragraph 1 of the 1995 Act. Under paragraph 16(2) of that schedule, he is disqualified for a period of three years, with immediate effect and until 23 April 2024, from acting as a transport manager on any operator’s licence.

The operator is given a period of grace until 31 May 2021 in which to nominate a new transport manager.

The following undertaking has been added to the licence:

a) an independent audit of the operator’s compliance with maintenance and drivers’ hours requirements will be carried out by the RHA, Logistics UK or other suitable independent body by 31 October 2021. The audit should cover at least the applicable elements in the attached annex. A copy of the audit report, together with the operator’s detailed proposals for implementing the report’s recommendations, must be sent to the traffic area office in Birmingham within 14 days of the date the operator receives it from the auditor.

3. Background

Silver Knight has held a standard national goods vehicle licence OD1047362, authorising three vehicles and three trailers, since 2005. The directors of the company are David Asbury and Sharon Asbury and the nominated transport manager is Christopher Stanford.

In February 2021 I received a report from DVSA traffic examiner Kevin England. Following an investigation into the operator conducted in autumn 2020, Mr England found the following issues:

i) no drivers’ hours analysis was taking place. The company had never downloaded the vehicle unit of a digital tachograph vehicle it had acquired in 2017. A driver’s digital card had not been downloaded for 525 days, somewhat outside the 28 day limit;

ii) neither director nor transport manager had any understanding of the working time rules;

iii) Director David Asbury was also a driver. He had on two occasions made false manual entries showing rest on his digital tachograph card: however, analogue charts showed that he had in fact been driving during this “rest”;

iv) David Asbury had failed to take the required weekly rest on two occasions: he had driven for 12 and 8 consecutive days respectively without taking weekly rest;

v) transport manager Christopher Stanford was not exercising the required continuous and effective management of the business.

4. Public inquiry

Concerned by this report, I called the company and transport manager to a public inquiry which was held in Birmingham on 21 April 2021. I also called David Asbury to a parallel hearing to consider his conduct as a driver. The company and transport manager were represented by Tim Nesbitt QC, Counsel.

As the inquiry unfolded, it became evident that transport manager Christopher Stanford had had no involvement with the operator for at least the past four years, other than continuing to receive a monthly fee of £100. He accepted that he had not looked at any maintenance documentation nor had he seen to it that regular downloads of vehicle units and tachograph cards were taking place.

After hearing from David Asbury, I accepted that his two false manual entries recording “rest” were not deliberate falsifications, but stemmed rather from his ignorance of the practicalities and rules concerning how to make a manual entry.

By contrast, I was not persuaded by his explanation of his consecutive driving periods of 8 and 12 days. Mr Asbury explained that a driver had let him down and that he (Mr Asbury) had found himself obliged to deliver some machinery which an engineer from Germany was coming especially to install. I consider this explanation to be insufficient on several grounds:

• it only covers one of the two periods of excessive work;

• coming under commercial pressure is in any case never an adequate reason deliberately to flout the law;

• even if Mr Asbury had found himself under sudden and unforeseen pressure to drive for a customer on day 7 – the first day he should not have been driving at all - it does not explain why he then continued to drive on days 8, 9, 10, 11 and 12;

Mr Asbury had no satisfactory explanation as to why he had run the business effectively without a transport manager for several years. He stated that Christopher Stanford was his brother-in-law and had agreed to carry out the role for a token sum (£xxx per month). He had not appreciated how pivotal the role of a transport manager was. He now intended to appoint a new transport manager, if the licence survived.

I looked at recent drivers’ hours records and noted that there was still a significant amount of missing mileage. Mr Asbury said that this was because some casual drivers tended to disappear without downloading their cards or handing in their analogue charts.

Mr Nesbitt stated that the company had been run compliantly until Mr Stanford had dropped away around four years ago. Despite the lack of drivers’ hours analysis and a couple of infringements by Mr Asbury, the general level of actual drivers’ hours infringements was quite low. Drivers’ hours analysis by the RHA had resumed after the DVSA visit in July 2020. Mr Asbury’s paperwork and record-keeping skills had been poor, but his wife had now been brought in as a director to look after this side of things. They had both attended an OLAT course in recent weeks. The company could be trusted to comply in the future. Whilst it was accepted that transport manager Christopher Stanford had ceased to carry out his duties several years ago, it was submitted that loss of his repute would be a disproportionate outcome.

Asked about the effects of various types of regulatory action, Mr Asbury said that the company could survive a week’s suspension and would be able to carry on with two vehicles rather than the current three.

5. Findings

Having considered all the evidence, I make the following findings:

• the company underwent a material change some time in 2016 or 2017 when transport manager Christopher Stanford ceased to have any involvement in managing the transport activities of the business (Section 26(1)(h) of the 1995 Act refers);

• the company has lacked the required professional competence since at least 2017 (Section 27(1)(a) of the 1995 Act refers);

• the company has failed to fulfil its undertaking to ensure that rules relating to drivers’ hours and tachographs are observed (Section 26(1)(f) of the 1995 Act refers). For the last four years, nothing has been done to download vehicle units or tachograph cards or to analyse analogue charts. Numerous instances of missing mileage are still occurring and are not being properly dealt with by the company. On two occasions the director himself has been responsible for egregious breaches of the rules relating to weekly rest: I find the explanation he has advanced to be without merit.

6. Conclusions

6.1 Transport manager

I have considered the question of Mr Stanford’s repute as a transport manager (Section 26(1)(b) of the 1995 Act refers). On the negative side is the fact that he has been a transport manager in name only for at least the past four years. There is little to put on the positive side, other than that he was frank about this at the inquiry. Against this, however, is that fact that he stated – incorrectly – to TE England during the latter’s investigation that he visited the operator once a week and was contactable.

I find that Christopher Stanford is not of good repute as a transport manager. If he found himself unable to fulfil the responsibilities of a transport manager (I understand he is a full time HGV driver) he should have resigned from the licence at that point. But by continuing to be the nominated transport manager on the licence while in practice doing no work for the company, he was giving the outward appearance of professional competence for an operator which in reality lacked it. It is difficult to overestimate the seriousness of such conduct: a transport manager is the public’s guarantee – through the traffic commissioner – that an HGV operator has someone in charge who knows what they are doing and ensures the safe operation and driving of vehicles. If a transport manager betrays this trust, loss of good repute is the inevitable outcome.

Having concluded that Mr Stanford’s good repute as a transport manager is lost, I must also disqualify him from acting as a transport manager on any licence. Because his misconduct is at the serious end of the scale, I am doing so for the period of three years. I understand that in practice Mr Stanford does not wish to act as a transport manager again, and I consider that this is for the best.

6.2 Operator

I considered long and hard whether to revoke this licence which, as stated above, has in practice lacked professional competence for at least four years. It is only the fact that the actual level of drivers’ hours offences has been relatively low that leads me to allow it to survive. I struggled also with the Priority Freight question of whether I could trust the company to comply in the future, given that Mr Asbury has already shown that, when push comes to shove, he is quite prepared to flout the rules on drivers’ hours and drive for far in excess of what is permitted. Again, I concluded – just – that with Mrs Asbury on board I can extend that trust. But the company is very much on probation.

Because the operator has compromised road safety by not having a transport manager in place for such a long period, and gained commercial advantage by not paying its transport manager realistic remuneration, I consider that the level of non-compliance falls in the “severe to serious” category described in the senior traffic commissioner’s statutory guidance document 10. It does not fall at the lighter end of this category.

I have therefore determined upon a 28 day suspension period pursuant to Sections 26(1)(h) and 27(1)(a), in line with the starting point set out in statutory guidance document 10. I am allowing a few weeks before the suspension takes effect, to give the operator time to prepare for it and make alternative arrangements insofar as it is able. I have considered Mr Asbury’s statement that the company could only survive a suspension of a week or so, but I am afraid that a seven day suspension would not adequately reflect the seriousness of operating without a transport manager for several years. Indeed, the operator is fortunate to retain its licence at all. If the result of the 28 day suspension is that the company goes under, then in the words of the Upper Tribunal’s decision in Dundee Plant Hire, which considered such a result, “so be it”.

Whilst I accept that the company is at least now carrying out drivers’ hours analysis, the number and extent of instances of missing mileage is still too high. There were also various maintenance issues which indicated a lack of the necessary attention to detail. For these reasons, I am also curtailing the licence from three to two vehicles with immediate effect. In order for me to be able to consider favourably any request to cancel the curtailment, the audit report mentioned above will have to show a satisfactory picture with compliance.

Nicholas Denton

Traffic Commissioner

23 April 2021