Decision

Decision for Thomas Bray trading as TGB Transport

Published 30 June 2021

0.1 IN THE WELSH TRAFFIC AREA

under the Goods Vehicles (Licensing of Operators) Act 1995 “the Act”

1. OG1109995 – THOMAS BRAY trading as TGB TRANSPORT

2. THOMAS BRAY – TRANSPORT MANAGER

3. PUBLIC INQUIRY

3.1 Heard at Municipal Buildings, Pontypridd, CF37 2DP

on

3.2 10th SEPTEMBER 2020

3.3 Before Anthony Seculer, Deputy Traffic Commissioner

4. Background

Thomas Bray, trading as TGB Transport, (“the operator”), holds a Standard Operator’s Licence for 3 vehicles and 3 trailers. Issued on 14th May 2012. Thomas Bray is the designated Transport Manager.

On 7th October 2019, the operator was called to a Public Inquiry in respect of failings in the maintenance and drivers’ hours systems and fitting of an Ad-Blue emulator. The licence was curtailed and Thomas Bray’s repute as an operator and as a Transport Manager was marked as “tarnished”.

On 2nd May 2020 a specified vehicle driven by Thomas Bray was stopped on the M4 motorway.

The Public Inquiry was convened as soon after the lifting of Covid 19 restrictions as practicably possible, the call-up letter being issued on 4th August 2020.

5. The Public Inquiry

At the Public Inquiry, the operator/Transport Manager attended represented by Mr Chris Powell, Solicitor.

The call-up letter requested copies of maintenance documentation and records at least 7 days in advance of the hearing. The evening prior to the hearing I received maintenance records and tachograph reports from “Tachoman” in a series of e-mails. I was able to open and read these but not to make any meaningful analysis of the contents in the time available.

Evidence was heard from Thomas Bray and representations were made by Mr Powell at the conclusion of the hearing.

6. Evidence

The issues outlined in the call-up letter were not in dispute.

The “No MOT” was described as a massive mistake by Mr Bray. He had panicked about missing the PMI and rolling-road brake test dates and had “missed” the MOT renewal date. He had relied on the maintenance garage to plan the MOT but accepted that the blame rested with him.

The vehicle in question had been maintained in accordance with the PMI schedule, had been signed off as roadworthy and when the missed MOT was pointed out by DVSA it passed the test immediately. It had been parked up prior to the MOT.

Regarding the No Licence offence this arose from the revocation of his goods vehicle driving entitlement by DVLA on medical grounds in February 2020. He had attended a 5 minute meeting with a DVLA doctor and had believed that everything was satisfactory. When his driving licence arrived, he failed to check the entitlements.

He had only driven the truck a few times per month to and from inspections. He accepted when challenged that on one occasion he had driven for over 3 hours when a driver had fallen from his cab and he needed to recover the vehicle.

He had invested everything in the business and had made massive improvements in the maintenance regime, record keeping and tachograph monitoring. Anything other than a short suspension of the operator’s licence would be fatal to the business.

Questioned by me, Mr Bray accepted that he should have examined the licence for its entitlements.

Regarding the reliance on the garage to do the MOT, he had no written communication with the garage relying on a personal visit.

7. Findings and Considerations

At the outset of the hearing, Mr Powell on behalf of the operator, indicated that guilty pleas would be entered to the alleged offences due to be heard at Swansea magistrates’ Court on 25th September 2020. He accepted that the principles of Schedule 3 of the Act dealing with “convictions” would be applied to the offences albeit the operator was yet to be formally convicted and I proceed on that basis.

Under Schedule 3, paragraph 2 a traffic commissioner must conclude that an individual is not of good repute if he has been convicted of “road transport offences”.

Under Schedule 3 paragraph 1(1)(a) a traffic commissioner shall have regard to any relevant conviction in determining good repute and the offences of “No Goods Vehicle MOT” and “No Licence” facing Thomas Bray clearly come within that category.

Under Schedule 3, paragraph 16(1), “in proceedings under this Act or the 2009 Regulation for determining whether a person who is a transport manager is of good repute or professionally competent, a traffic commissioner must consider whether a finding that the person was no longer of good repute or (as the case may be) professionally competent would constitute a disproportionate response”.

I find that Thomas Bray as a Transport Manager has lost his good repute. Checking MOT dates and driving licence entitlements are basic and essential tasks of a competent Transport Manager. Mr Bray knew that there were medical issues around his goods vehicle driving licence entitlement and, however cursory he believed the medical investigation to be, he should have checked the document.

With regard to the MOT, an effective wall planner would record both the dates of PMIs and MOTs and show a tick or date on completion. Mr Bray patently failed to monitor this adequately.

In determining the question of good repute as an operator/Transport Manager I also have regard to the positives.

Whilst I can make no findings as to the quality of the maintenance/driver defect regime or the level of compliance with the rules on drivers’ hours etc. I accept that systems and records are in place and that Tachoman have continued to be engaged as undertaken at the recent Public Inquiry.

I accept Mr Bray’s evidence that he treated the last Inquiry as a serious wake-up call and that he has tried to improve all his systems. He has stated that his MOT pass rate since 2012 is 100% and I particularly note that no prohibitions were issued in respect of the vehicle stop on the 5th May 2020.

I accept that the No MOT offence was an inadvertent omission and albeit that the failure to check his driving entitlement was grossly negligent, there is no evidence to suggest that Mr Bray was aware of his lack of entitlement.

Finally, Mr Bray states that he alerted the Office of the Traffic Commissioner to the offences in accordance with his professional duty and I give credit for that.

Regarding his good repute as a Transport Manager, notwithstanding the positives, the serious omissions coupled with a finding against his repute as recently as October 2019 convinces me that loss of good repute would not be disproportionate under Schedule 3, paragraph 16(1).

With regard to his repute as an operator, I consider the Priority Freight (T/2009/225) question; “how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime?” and believe, with the addition of a competent second pair of eyes in the role of Transport Manager, the answer is likely.

With regard to the Bryan Haulage (no.2) (T/2002/217) question, “is the conduct such that the operator ought to be put out of business?” the answer is therefore, no, but the Operator can be in no doubt about the likely result of any future transgressions.

Financial standing for the previous 3 months has been evidenced from bank statements in the operator’s name, the operator having relied on a Statutory Declaration to meet the requirement on grant.

8. Decisions

Whilst the circumstances of the offences and the operator’s commitment to improved compliance leads me to conclude that loss of good repute and revocation would be disproportionate on this occasion, I consider that that a short period of suspension of the licence is entirely appropriate. The licence is suspended for 14 days with effect from 23.59 on 9th October 2020 under section 26(1)(h) of the Act. The material change is the fitness of the operator having regard to the pending convictions for relevant road transport offences.

Thomas Gareth Bray has lost his good repute as a Transport Manager and is disqualified indefinitely from acting as a Transport Manager under Schedule 3, paragraph 16(2) of the Act.

Having found that the Transport Manager has lost his good repute the operator’s licence is without professional competence under Section 27(1)(b) of the Act. I grant a period of grace until 9th November 2020 for the appointment of a new Transport Manager.

An undertaking is placed on the licence to provide an independent audit of maintenance and tachograph/drivers’ hours compliance systems after 12 months, (by 30th November 2021), to the Office of the Traffic Commissioner for Wales. The audit report will be expected to report on the input of the new Transport Manager.

A further review of financial standing for the previous 3 months will be required by 30th November 2020. The operator is reminded that a Statutory Declaration will not be accepted for an existing licence holder.

Anthony Seculer,

Deputy Traffic Commissioner,

23 September 2020