Decision

Decision for The Pipe Corporation Ltd (OD1016457)

Published 22 November 2024

0.1 In the West Midlands Traffic Area

1. Written Decision of the Traffic Commissioner

2. Public Inquiry held on 11 September 2024 in Birmingham

2.1 Operator: The Pipe Corporation Ltd (OD1016457)

3. SUMMARY OF THIS WRITTEN DECISION

The restricted operator’s licence, reference OD1016457, held by The Pipe Corporation Ltd (the “operator”) that authorises the operation of one vehicle and zero trailers is revoked under sections 26(1)(h) [operator now unfit], 26(1)(f) [breach of general undertakings], and 26(1)(h) [material changes since the operator’s licence was granted]. All orders of revocation will take effect at 2359 hours on 01 November 2024.

There will now be a separate hearing listed for me to consider whether I should disqualify the operator and the director Darren Sockett. That hearing will take place as soon as possible.

The application made to vary the licence, to increase authorisation from one vehicle to two vehicles, is refused.

From 0001 hours on 02 November 2024 the operator has no lawful authority to use, for any commercial reason, any vehicle over 3.5 tonnes. The operator is unequivocally warned that any such operation empowers the DVSA to impound that vehicle(s) and the operator now has actual knowledge of that power.

4. BACKGROUND

The operator was granted a restricted goods vehicle operator’s licence authorising one vehicle and no trailers on 08 April 2003.

In January 2020 the operator submitted a variation application to increase vehicle authorisation on its operator’s licence to two vehicles. By letter of 26 February 2020 that application was refused.

Evidence was received at my office from the DVSA with an allegation that in October 2023 the operator was operating two vehicles when it was only authorised to operate one vehicle.

The operator then made a further variation application dated 15 February 2024 to increase vehicle authorisation to two vehicles.

As a result of the evidence received from the DVSA the operator was called to a public inquiry by the calling in letter of 02 August 2024. That hearing was called to consider whether regulatory action should be taken against the existing licence and whether the variation application should be granted.

5. PUBLIC INQUIRY ON 11 SEPTEMBER 2024

In attendance for the operator was the sole director, Mr Darren Sockett, and the company secretary Mr Clive Scott. The operator was represented by Mr H Thomas, solicitor.

Before the date of the public inquiry Mr Thomas had submitted evidence, including statements and submissions, for which I was grateful.

At the very start of the hearing I explained to Mr Sockett, director, that he must be truthful in the evidence that he gave and I warned him of the serious consequences were he to be found to untruthful. Mr Sockett told me that he understood that.

I heard in evidence from Mr Sockett and Mr Scott before hearing submissions from Mr Thomas before reserving my decision into writing.

6. BURDEN AND STANDARD OF PROOF

The burden of proof is upon the DVSA/Office of the Traffic Commissioner to prove any allegations that had been made. The standard of proof is the civil law standard; the balance of probabilities. In other words what is more likely than not to be correct.

7. FINDINGS OF FACT

The following findings of fact have been made after applying the correct burden and standard of proof to all of the evidence in this case.

This operator has held an operator’s licence for 21 years. When the licence was first granted in 2003 a single vehicle identity disc would have been issued for the vehicle specified on the operator’s licence. If the vehicle is changed during the five year life of an operator’s licence then the old disc is either returned or destroyed and a new disc with the new vehicle is issued.

The vehicle identity disc records the name of the operator, the expiry date of the operator’s licence, the type of licence and the registration number of the vehicle it relates to.

It is a legal requirement that the vehicle identity disc is displayed in the windscreen of the vehicle that it relates to at all times.

Since this operator’s licence was granted in 2003 it has been renewed every 5 years; 2008, 2013, 2018 and finally in 2023. On each occasion a new vehicle identity disc was issued.

To make things visually clear a restricted licence holder is issued with orange vehicle identity discs. A standard licence holder is issued with blue vehicle identity discs.

Mr D Sockett, the director, told me that he was not colour blind.

These are examples of the different types of vehicle identity disc and their colour.

Restricted licence holder:

Standard national licence holder:

Mr D Sockett, director, and Mr C Scott, company secretary, told me that at the time of the variation application in 2020 the administration staff were home working due to the Covid restrictions. They told me that post that was delivered to the office was dealt with by a female member of the administration staff and once a week they would take the post to her home. I was told she lived a distance from the office. For whatever reason they were not aware that the variation application had been refused but thought the failure to become aware of the refusal was somehow due to the disruption caused by Covid.

I must say I am very confused by that evidence. The variation application was made in January 2020, it was refused on 26 February 2020. The letter (page 67 of the public inquiry bundle) refusing the variation application was posted to the correct correspondence address and it was not returned as undelivered in the post. It is more likely than not that it was delivered in the post to that address.

What confuses me so much is the timeline from the operator because the first Covid lockdown did not start until 23 March 2020; 25 days after the variation refusal letter was posted. In other words when the variation application was made, processed and then refused there were no Covid restrictions, there was no homeworking and the operator, and its administration staff, would all have been working in the office as normal.

As a result I reject the account which was advanced by Mr Sockett and Mr Scott blaming Covid as being without foundation and factually wholly incorrect. The account I was told was untruthful and I find that it is more likely than not that Mr Sockett and Mr Scott knew that it was an untruthful account.

I find as fact that refusal letter for the variation application was delivered to the operator and the operator was aware of what it said. Any suggestion that a member of the administration staff would not have presented such an important letter to Mr Sockett or Mr Scott is not accepted on the balance of probabilities.

In any event Mr Sockett provided no persuasive explanation as to why he did not personally chase up the variation application if, as he suggested, he had not received an outcome decision for it. I find that he knew a new orange vehicle disc would have been issued for the second vehicle if the variation application had been granted given the knowledge of operator licensing he had obtained over the many years since 2003; a new orange vehicle identity disc being issued every five years when the licence was renewed and also a new disc being issued when a vehicle was changed on the licence. To suggest that he assumed the application to vary the licence was granted without receipt of (a) correspondence from the Office of the Traffic Commissioner that the application was granted and (b) without receipt of the orange vehicle identity disc for the second vehicle is, quite frankly, wholly unpersuasive. I find that Mr Sockett knew what he was telling me was untruthful.

Mr Sockett then told me that he had not noticed any reason to suspect the second vehicle was not authorised. I took Mr Sockett to page 33 of the public inquiry bundle which is the photograph taken by the DVSA on 26 October 2023 of the second vehicle and the vehicle identity disc in the windscreen. A few things stand out and would have been obvious to Mr Sockett:

• The disc is blue, not orange; and

• It says “Standard National” on it whereas this operator has a “Restricted” operator’s licence; and

• It is in the name of Wessex Eagle Ltd and not The Pipe Corporation Ltd; and

• It expired on 30 June 2022.

The second vehicle had been in Mr Sockett’s possession since January 2020 (see page 4 of the operator’s bundle, second to bottom paragraph) and Mr Sockett offered no plausible explanation as to how in the 3 years and 10 months (circa 1395 days) between acquiring the second vehicle, and the DVSA taking note of it, he had not spotted any of “(a)” to “(d)” in paragraph 31 above and then queried what he had observed and in particular why that vehicle did not display an orange vehicle identity disc in the name of the operator with the correct vehicle registration mark upon it. For him to say he had not noticed anything in all of that time, as the sole director of the licence holder, is wholly unpersuasive and is not accepted. It is more likely than not that he did notice, many times, but he then failed to do anything about it. What he told me was untruthful and I further find that he knew it was untruthful when he said it.

Pulling everything together I find that Mr Sockett told me several untruths that he knew were untrue. None of the parts of the case that he put forward, and which I have dealt with in this written decision, stand up to scrutiny. I believe Mr Sockett thought that if he maintained his story long enough then I would believe him. I do not. He was an unreliable witness of fact and he lacks credibility in every area that I have dealt with in this decision.

Being deliberately untruthful in a public inquiry, even just once, is the very worst type of conduct that any director of a company that holds an operator’s licence can embark upon. It cuts to the very heart of the operator licensing system; the issue of trust. It demonstrates that right up to and including the public inquiry the director cannot be trusted. Here that director is Mr Sockett and for being deliberately untruthful before me means that I no longer trust him.

In relation to maintenance. Mr Sockett told me that no records had been produced because there were no written records for maintenance in relation to the vehicle specified on the operator’s licence or for the second vehicle. That is totally unacceptable. The general undertakings on the operator’s licence state within them:

“Records are kept (for at least 15 months) of all driver spottable defects, and all safety inspection, routine maintenance and vehicle repairs and that these are made available upon request.”

Mr Sockett cannot plead ignorance to that requirement because:

• It is written on the operator’s licence; and

• He signed a licence checklist every five years when the operator’s licence was renewed (see pages 17 and 18 of the public inquiry bundle for the last licence checklist signed by Mr Sockett on 08 March 2023) that said “I am accepting that:” and then below that are the general undertakings and thereafter Mr Sockett’s signature.

In any event the issue of director’s pleading ignorance to their operator licensing legal requirements was dealt with by the Upper Tribunal in appeal case of LA & Z Leonida TA ETS 2014/024 that held:

“It does not matter whether an operator’s licence is held by an owner operator, a partnership or a limited company because in each case the person or persons responsible for managing the business bear the ultimate responsibility for ensuring that the road transport aspect of the business operates in compliance with the regulatory regime. That means they cannot plead ignorance or put the blame on the transport manager because they are required to have sufficient knowledge of the regulatory regime to ensure compliance in general and the proper performance of the transport manager’s duties in particular.”

This appeal case makes it clear that Mr Sockett was meant to have sufficient knowledge to ensure compliance in general.

That appeal case followed on from the Upper Tribunal case of MGM Haulage and Recycling Ltd 2012/030 where the Upper Tribunal held that all operators are deemed to know the advice and guidance that is in the public domain. Here that would be, for example, the DVSA publication “A Guide To Maintaining Roadworthiness” and the Statutory Documents issued by the Senior Traffic Commissioner. Both have been in the public domain for about 15 years and both are available on the Gov.UK website. Both make it clear about what is required with regards to written maintenance records.

Therefore, Mr Sockett cannot plead ignorance to the general undertakings on the operator’s licence and the requirement to keep written records of all maintenance work that is carried out; in particular for driver defect reporting and preventative maintenance inspections.

The requirement in operator licencing to have written records of maintenance related work is there to protect road safety in order to show (a) that the vehicle is visually looked at before it goes onto a public road by the driver and (b) that all the critical mechanical components are inspected at the stated inspection frequency by a mechanic and (c) that the vehicle is declared as roadworthy after each preventative maintenance inspection. It goes without saying that the failure to have any such written records raises very serious concerns.

I therefore find that in the absence of such records it is more likely than not that the following general undertakings recorded on the operator’s licence were breached:

• Vehicles and trailers, including hired vehicles and trailers, are kept in a fit and serviceable condition; and

• Records are kept (for at least 15 months) of all driver spottable defects, and all safety inspection, routine maintenance and vehicle repairs and that these are made available upon request.

I further find that in the absence of those records it is more likely than not that road safety was put at risk.

Mr Sockett did not put forward any medical reason why he was unable to understand and fulfil his operator licensing obligations. As I said in the hearing, were there to be such a medical condition then it would have been for him to have developed workarounds to deal with it and any functional limitations it might cause.

There were some positives in this case. A transport consultant, Mr Rees was engaged with a report before me in the operator’s bundle and he had offered training. Mr Sockett was going to undertake OLAT training. An employee, Louise Anderson, had already undertaken OLAT training and a certificate had been produced. There was the intention of obtaining a full compliance audit in the future. The second variation application had been made and was before me to regularise the position. Mr Sockett had stated that the second vehicle had only been used once at the same time as the vehicle recorded on the operator’s licence. Mr Sockett had admitted that he now knew that possessing the second vehicle that undertook about 2000-2,500 miles per annum required two vehicles to be specified on the operator’s licence. There was now a formal maintenance agreement with a maintenance provider so the maintenance related undertakings would be fulfilled in the future.

8. BALANCING EXERCISE

I have given credit (evidential weight) to all of the positives that were brought to my attention. I have given evidential weight to the negatives too. Deliberately telling me untruths in a public inquiry carries the maximum amount of evidential weight that is possible as it is the very worst type of behaviour. The failure to comply with the most basic of general undertakings by having no maintenance records carries almost the same evidential weight as that failure directly, and adversely, impacts upon road safety. The signing of the declaration at the point of licence renewal on the licence renewal checklist promising to do things that had not been done, and which were then not done, carries very significant weight because it was a false declaration. Balancing the evidential weight applied to the positives in this case to the weight applied to the negatives I find that the balance only tips in one direction; the negatives significantly outweigh the positives.

9. STATUTORY DOCUMENT 10 CONSIDERATION

Despite the credit that I have given for the positives in this case the deliberate telling of untruths in the public inquiry by the sole director Mr Sockett is, in and of itself, enough to put this case into the “Severe” category for consideration of regulatory action. The sole director, Mr Sockett, is the heart and mind of company. What he did before me cuts to the very heart of the operator licensing system; trust. No amount of credit can change how I now find Mr Sockett; a man I cannot trust. It would be wrong of me, as the Traffic Commissioner for the West Midlands Traffic Area, if I did not consider taking robust regulatory action from the findings I have made regarding the untruths Mr Sockett told me in the hearing. And what makes it worse is that he was prepared to do that after I had warned him about being untruthful at the very start of the hearing and after he told me that he would tell the truth.

Were I not to consider taking robust regulatory action for the untruths that I was told then the wrong message would be sent out to compliant operators. Some might be tempted to think along the lines of

“What is the point spending all of the time, effort and money being complaint when I can even appear before the Traffic Commissioner at a public inquiry, tell them a series of untruths knowing that even if I am found out for those untruths I will escape consideration of robust regulatory action?”  

It would only take a few compliant operators to think like that to put the function of this jurisdiction at risk. It would also risk undermining the trust and confidence that the general public have in this jurisdiction were they to think that deliberately being untruthful in a public inquiry would not result in consideration of robust regulatory action.

I repeat all of my findings that relate to Mr Sockett being deliberately untruthful before me. I remind myself of the credit that I have given to the operator. I have then asked myself the question posed by the Upper Tribunal in the appeal case of Priority Freight 2009/225; do I trust this operator to be compliant in the future? From the deliberate untruthful acts of Mr Sockett I answer that question in the negative. I do not have any trust left in Mr Sockett. What he did has destroyed all of my trust in him.

The deliberate acts of Mr Sockett being untruthful in the public inquiry were so bad, and so ruinous to the issue of trust, that I find that it is proportionate for me to determine that this operator is now unfit to hold a restricted operator’s licence. The operator’s licence is revoked under section 26(1)(h) of the Act for that material change since the licence was granted.

Despite the credit that I have given for the positives in this case when I look at the totality of all of the negative findings I have made in this case I have no hesitation in finding that it is proportionate for me to determine that this operator is now unfit to hold a restricted operator’s licence. The operator’s licence is revoked under section 26(1)(h) of the Act for that material change since the licence was granted.

The long-standing fundamental breach of the general undertakings that I have particularised in this decision was so bad that despite all of the credit that I have given to this operator I determine that it is proportionate to revoke the operator’s licence under section 26(1)(f) of the Act.

It is also proportionate, despite the credit that I have given to the operator, to revoke the operator’s licence under section 26(1)(h) of the Act being the other material changes, demonstrated from my negative findings, that have occurred since the operator’s licence was granted.

All orders of revocation take effect at 2359 hours on 01 November 2024. The operator is unequivocally warned that any operation of any vehicle over 3.5 tonnes for any commercial purpose from 0001 hours on 02 November 2024 will empower the DVSA to impound the vehicle(s) so operated. The operator now has actual knowledge of that power.

The application to vary the operator’s licence is refused because from 2359 hours on 01 November 2024 there is no operator’s licence for the reasons given in this written decision.

10. CONSIDERATION OF DISQUALIFCATION, SECTION 28 OF THE ACT

Having revoked the operator’s licence I will now list a hearing, with a time estimate of 60 minutes, for me to consider the sole issue of disqualification under section 28 of the Act. That hearing will be listed as soon as possible which includes the possibility of it being a virtual hearing as my office is temporarily vacated until January 2025 due to refurbishments currently taking place.

Traffic Commissioner Mr M Dorrington
07 October 2024