Decision

Decision for Thomas Glyndwr Morris Morgans & Transport Manager Deian Morgans

Published 20 January 2022

1. DECISION OF THE TRAFFIC COMMISSIONER FOR WALES

1.1 PUBLIC INQUIRY HELD AT CAERNARFON ON 12 OCTOBER 2021 AND AT PONTYPRIDD ON 9 DECEMBER 2021

1.2 Thomas Glyndwr Morris Morgans OG2015674 & Transport Manager Deian Morgans

2. Background

Thomas Glyndwr Morris Morgans holds a sole trader Standard National Goods Vehicle Operator’s Licence authorising 2 vehicles and 2 trailers, granted on 25 January 2019.

The nominated transport manager on the licence was initially Thomas Morgan’s daughter. Following her resignation in May 2020, an application was submitted by the operator to appoint his son, Deian Morgans, as transport manager. That application failed to declare that Deian Morgans had been convicted of drivers’ hours offences, had his vocational driving entitlement revoked by a traffic commissioner on 1 July 2019 and was disqualified from applying for or holding any vocational licence until 1 February 2020. In view of concerns about his repute, I called the operator and Deian Morgans to a preliminary hearing in Pontypridd on 17 December 2020. On the basis of assurances given to me by both the operator and Deian Morgans at that hearing, I accepted Deian Morgans as transport manager on the licence with several additional undertakings, agreed to by the operator. These were that Thomas Morgans would attend an operator licence management training course by 31 March 2021; that Deian Morgans would attend a two-day transport manager CPC refresher course by 31 March 2021; and that a full systems audit would be conducted by a competent independent person by 30 June 2021.

On 10 March 2021, an “S” marked prohibition was issued to one of the operator’s trailers at the roadside. This triggered an investigation by the Driver and Vehicle Standards Agency (“DVSA”) in April 2021. The results of DVSA’s Vehicle Examiner (“VE”) report and DVSA’s Traffic Examiner (“TE”) report were both unsatisfactory, with serious compliance failures found by both examiners. By a call up letter dated 1 September 2021, the operator was called to public inquiry and by a call up letter of the same date the transport manager, Deian Morgans, was also called to the inquiry to explore the shortcomings identified in those reports.

3. Hearing

The Public Inquiry was listed for 12 October 2021 at 2pm at the Office of the Traffic Commissioner for Wales in Caernarfon and went ahead on that date. The operator and transport manager attended and were represented by Aled Owen, solicitor, of Harrison Clark Rickerbys. VE Lee Rees and TE Nia Lloyd Daniel attended from the DVSA.

There was insufficient time to conclude the hearing on 12 October 2021 and so the inquiry was part heard and adjourned. The hearing resumed at 10.30am on 9 December at the Office of the Traffic Commissioner for Wales in Pontypridd. The operator and transport manager attended on that date, again both represented by Aled Owen.

4. Issues

The public inquiry was called for me to consider whether there were grounds for me to intervene in respect of the licence held by Thomas Glyndwr Morris Morgans, specifically by reference to the following sections of the Act: 6, 26(1)(b), 26(1)(c)(i),(ii) and (iii), 26(1)(e), 26(1)(f), 26(1)(h), 26(6), 27(1)(a) and 28.

Deian Morgans was called as Transport Manager to consider whether I should make a finding against his repute and prevent him from relying on his Certificate of Professional Competence - section 27(1)(b), Schedule 3 and Article 4 of Regulation (EC) 1071/2009.

5. Evidence

In addition to the papers in the public inquiry bundle I had also been provided, in advance of the hearing, with additional evidence in the form of statements from Thomas Morgans and Deian Morgans, with related documents attached; an updated audit report from NRT Consultancy dated 4 October 2021; and the finance documents, maintenance and drivers’ hours records and reports which were requested in the call up letters. I also received written submissions on behalf of the operator and transport manager.

The evidence of TE Lloyd Daniel and VE Rees included in the public inquiry brief was adopted by each of them and Mr Owen indicated that it was not contested. TE Lloyd Daniel and VE Rees had considered the recent maintenance and drivers’ hours documents provided by the operator for the purposes of the inquiry shortly before the hearing and both gave oral evidence about that documentation. They were questioned by me and by Mr Owen, and I adjourned the hearing to allow Mr Owen to take instructions from his clients before cross examining the examiners regarding their findings.

Thomas Morgans and Deian Morgans adopted their witness statements and gave oral evidence, responding to questions from both Mr Owen and from me.

I heard closing submissions from Mr Owen on behalf of the operator and transport manager and I then reserved my decision.

6. Findings of fact

It is undisputed that the operator has been issued with two prohibition notices by the DVSA since the licence was granted in 2019. The first was a serious “S” marked immediate prohibition issued to the operator’s trailer on 10 March 2020 for a detached brake pad. VE Rees’ evidence was that this defect had been identified 11 weeks previously (on PMI sheets dated 30 December 2020 and 13 February 2021) without any rectification work being carried out. The second prohibition notice was a delayed prohibition issued by VE Rees to the same trailer during his visit on 16 April 2021 for a suspension anchor pin which was clearly worn in excess of the annual test standard. Again, this defect had been identified at a previous PMI some 20 days earlier and VE Rees’ undisputed evidence was that this was a long-standing defect. Accordingly, I find that section 26(1)(c)(iii) of the Act is made out.

Statements made by the operator when applying for the licence have not been fulfilled, namely that the vehicles would be inspected at the 6-week intervals the operator promised they would be; that he would notify me within 28 days of any changes to maintenance arrangements and that safety inspections and maintenance and repair work would be carried out by the nominated provider. The evidence that the operator had failed to fulfil these statements was uncontested and I therefore find that section 26(1)(e) of the Act is made out.

The evidence is clear that the operator failed to comply with the undertakings on the licence that his vehicles and trailers would be kept fit and serviceable as evidenced by the prohibition notices issued, repeated instances of PMI sheets with dangerous defects identified but no evidence of rectification work carried out, and a poor initial MOT fail rate. Since the VE’s report and the PI Bundle being prepared, two of the operator’s vehicles had been presented for test but only one of those had passed on initial presentation.

Again, it is undisputed that the operator failed to comply with the undertaking that it would observe the rules on drivers’ hours and tachographs and keep proper records and its undertaking to ensure the lawful driving and operation of vehicles. Numerous issues were identified by the TE in her assessment. Of particular concern was the fact that the Transport Manager did not even record the work that he was doing, let alone that of other drivers. There was evidence of missing vehicle downloads; tachograph vehicle units malfunctioning; vehicles not in the name of the operator (but in the name of the transport manager) and no hire agreement in place for their use; convictions not notified to the insurance company; vehicles being operated without a valid MOT; evidence of numerous working time and drivers’ hours infringements, (including by the transport manager himself) with no evidence of written disciplinary procedures in place nor evidence that these infringements had been detected by the operator or transport manager. TE Lloyd Daniel’s report in July 2021 referred to a complete lack of systems, which was a matter of concern given that the transport manager had only acquired his CPC qualification in 2018 and, at my request following a preliminary hearing last year to explore potential concerns about his repute, had attended a TM refresher course only 4 months earlier.

The operator failed to comply with the undertaking that it would keep proper safety inspection, driver defect reports and routine maintenance records. PMI reports were incomplete with missing inspection records and key information missing, including brake performance and roadworthy declaration not completed at the time of the inspection (in one case, the declaration was signed 36 days after the PMI date). There was evidence that the transport manager had been informed of dangerous defects but no evidence of any rectification work being carried out. An example was in relation to vehicle T555DTM where 5 periodic inspection reports had the same dangerous defect reported in respect of both front tyres (between February and August 2020) with no evidence of rectification work. The driver defect reporting system was poor. Of the 5 DDR books inspected, 2 were specific for Public Service Vehicles, not Heavy Goods Vehicles and, of the 12 months of driver defect sheets assessed identifying 15 defects, only 1 had evidence of rectification work.

The operator failed to comply with the undertaking that drivers would promptly report defects that could prevent the safe operation of vehicles and/or trailers and that defects would be promptly recorded in writing. Numerous instances of defects which should have been identified by drivers were found on PMI sheets and there was no evidence of driver walkaround training having been given to drivers or guidance on the correct procedure to follow when faults were identified.

The operator failed to comply with the undertaking on its licence that it would not operate more vehicles than authorised. He accepted that there were instances where he had operated 3 vehicles at the same time. Accordingly, I find that section 26(1)(f) of the Act is made out.

6.1 Deian Morgans – transport manager

Deian Morgans, in his capacity as transport manager, was unable to demonstrate that he had complied with his duty effectively and continuously to manage all the transport activities of Thomas Morgan’s transport operation, as required by the legislation. In his evidence he accepted that his failings were serious and substantial and he put these down to his lack of knowledge and management experience. There was also evidence that he had been overstretched doing three jobs, as transport manager, driver and farmer involved in the family farming business. Deian Morgans clearly did not have effective control of maintenance standards and, despite being told of dangerous vehicle defects at maintenance inspections, he failed to take rectification action, with the same defects being identified at subsequent maintenance inspections. Indeed, the defect that resulted in an immediate “S” marked prohibition being issued at the roadside on 10 March 2021 was identified in the 2 previous PMI reports, but no rectification action had been taken. There were other instances where PMI sheets record that Deian Morgans had been told of dangerous defects but no rectification action had been taken and the vehicles continued to be used. This is inexcusable and posed a clear danger to other road users.

Even after the VE’s visit in April, these failures continued. Included in the bundle produced by the operator for the purposes of the Inquiry were two PMI sheets for vehicle WV15VWA dated 14 July 2021 and 28 August 2021 which identified precisely the same defect - “RH lift axel tyre cut to cords and LH lift axel tyre cut to cords”. VE Rees’ evidence at inquiry was that this would have resulted in an immediate prohibition at the roadside, had the vehicle been stopped by DVSA. Cuts in the tyre were deep enough to expose the cord, affecting the structure of the tyre and giving rise to obvious safety concerns. The July PMI sheet stated “ordered” next to each of the tyre defects and the vehicle had not been signed off as roadworthy. The August PMI sheet included identical wording but stated “replaced” next to each of the tyre defects. The odometer reading on the August PMI sheet had been scored out. There was evidence from the tachograph vehicle unit records for that vehicle (included with the operator’s documentation provided in advance of the inquiry) that the vehicle had been driven a total of 11,245 kilometres between 21 July 2021 and 27 August 2021. The maintenance and drivers’ hours documentation provided indicated to both the VE and the TE that the vehicle had been driven with a serious safety defect on multiple occasions until the two tyres were replaced on 28 August 2021 when the vehicle was signed off as roadworthy.

When asked about this at the public inquiry hearing in Caernarfon on 12 October 2021, the operator stated in his evidence that the only explanation he could give me was that the tyres “would have been changed” between the two maintenance inspections, although not with new tyres. He accepted that it would be an extraordinary coincidence for defects in identical terms to appear on the same two tyres and conceded that his explanation was “feeble”.

Deian Morgans gave evidence at the re-convened hearing in Pontypridd on 9 December 2021. In view of my concerns about this serious issue which had been revealed in the documents provided by the operator for the purposes of the inquiry, I indicated that I wanted to hear from Deian Morgans in that regard. His evidence was that he had ordered the tyres by ‘phone upon receiving the PMI sheet, but that they were not in stock and so he had changed the two tyres himself the following day. He had replaced them with partly worn tyres. He could not produce any evidence to show that the defective tyres had been replaced or that the vehicle was deemed to be roadworthy before it was used. When asked why not, he acknowledged that he should have made a record of the rectification work and ensured that there was an update to the PMI recording the vehicle as unroadworthy. His evidence was that he had not done so because it slipped his mind and because he didn’t have time. He could not explain why the odometer reading on the August PMI sheet had been scored out and accepted that this looked very suspicious. The mechanic had replaced the same two tyres previously identified as defective with new ones at the PMI on 28 August, having recorded, word for word, precisely the same dangerous defects which were identified at the previous inspection. Deian Morgans suggested that the vehicle had been engaged in forestry work between the two PMI inspections, a type of work which involved more regular replacement of tyres, and that this could explain how the same defects appeared on the same two tyres at the August inspection.

I questioned the veracity and plausibility of Deian Morgan’s evidence during the inquiry. Having now considered the documentary evidence again, along with my notes made at the time of the hearing and the recording of proceedings I find that, on the balance of probabilities, the vehicle was operated between 21 July and 27 August 2021 with dangerous defects and in an unroadworthy condition.

There were also serious failings in compliance with drivers’ hours and working time requirements and I find that Deian Morgans failed to comply with his transport manager duties in that respect. He failed adequately to check the downloaded tachograph data; vehicle and driver data downloads were missed; vehicle units were recorded as malfunctioning and not rectified promptly; driver training and disciplinary procedures were lacking. Driving licence checks were not carried out properly, and there was a complete lack of any system for monitoring Working Time Directive requirements, even for monitoring the transport manager’s own working time.

Deian Morgans, in evidence, stated that he had completed the transport manager CPC qualification in 2018 and came top of his cohort. As required by the undertaking agreed to at Preliminary Hearing in December 2020, he completed a transport manager refresher course as recently as March 2021. He had attended college to train as a mechanic and, as an HGV driver, he clearly understands vehicles. He put his failings as transport manager down to lack of knowledge, experience, and time. However, my concern about Deain Morgans is not his knowledge of what needs to be done, but his attitude of mind and fortitude towards compliance, which is an essential characteristic for a transport manager. He has failed to justify the trust that I placed in him when accepting him as transport manager on the licence in December 2020, following assurances he and the operator gave me at the preliminary hearing. He has failed to meet the expectations that the public rightly have of him as transport manager to ensure that HGVs are operated safely and legally. I was told that it was his intention to step down as the operator’s transport manager, in recognition that he did not have the requisite skills or experience to carry out the role along with his other responsibilities. In submissions, I was invited to find that his repute was severely tarnished, but not lost, and that he may wish to use his qualification again in a few years’ time.

For these reasons, and having regard to the Senior Traffic Commissioner’s Statutory Document 3, I consider it an entirely proportionate response to make a finding that Deian Morgans has lost his repute as transport manager and no longer satisfies the requirements of section 13A(3) of the Act.

7. Considerations and Decisions in respect of Thomas Glyndwr Morris Morgans

Deian Morgan’s good repute having been lost, revocation of the licence is mandatory under section 27(1)(a) and (b) of the Act. I am also revoking the licence under sections 26(1)(c)(iii), 26(1)(e), 26(1)(f) and 26(1)(h) of the Act, having set out my findings above.

Having regard to the Senior Traffic Commissioner’s Statutory Document 10, Annex 4, and having considered all the evidence, I place this case in the severe category. There were deliberate or reckless acts that compromised road safety, with vehicles driven which had serious safety defects identified at periodic maintenance inspection and no evidence of rectification by the time of the next inspection; persistent operator licence failures with inadequate response; ineffective management control and insufficient systems and procedures in place to prevent operator licence compliance failings; insufficient procedures in place to ensure compliance by drivers with drivers’ hours requirements; ineffective driver training with ineffective monitoring and disciplinary procedures in place; road safety critical defects, including “S marked prohibitions and a low average first time pass rate at MOT. On the positive side, the operator co-operated with the enforcement investigation.

I’ve considered the situation now and evidence put forward in that regard. Neil Thomas and Michael Underwood had been engaged to undertake a review of current systems and to advise on new processes and procedures. However, when the operator gave his evidence on 12 October 2021, when asked by his solicitor what he had done so far with Mr Underwood, his response was “nothing yet”. There was apparently a folder that included relevant processes and written procedures but he had not gone through that with the consultant at that stage. Mr Underwood had only attended twice and there was no contract for services yet in place. Mr Thomas had prepared an audit report in June 2021, in compliance with the undertaking I required at the preliminary hearing the previous December. That audit report identified ongoing compliance failures, some months after the DVSA visit. The operator had written to my office providing assurances of steps he would be taking to address the failures. At the date of the inquiry, these were still not being complied with and a further audit report prepared by Mr Thomas shortly before the inquiry still identified some serious failings in maintenance and systems. I noted the evidence of the VE and TE who assessed the maintenance and other compliance documents provided for the inquiry covering the previous 6 months. The examiners raised concerns about continued compliance failings, which included the same issues identified at the time of the VE’s visit in April – defects identified at PMI with no evidence of rectification; vehicles used whilst not under MOT; and the use of three vehicles at the same time, when only two are authorised on the licence. The operator was obviously on notice of these issues as these had been identified in the DVSA report, but the failings continued.

I noted the evidence that the operator had established a new limited company with a view to submitting a new operator licence application and had leased new operating premises with a new maintenance provider. The intention was to engage the services of Michael Underwood as transport manager and I noted his evidence (given at the reconvened hearing on 9 December) of the advice he had been giving the operator and steps he would take to improve systems going forward.

In considering the Priority Freight (2009/225) question, “how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime?” I have had regard to the failures I had found proved which were serious, but also the ongoing failures as recently as two months before the inquiry with a vehicle being used which had serious safety defects, more than the authorised number of vehicles continuing to be used at the same time and vehicles still being driven outside of MOT. On balance, therefore, I find the answer to be “unlikely”.

In considering the Bryan Haulage (no.2) (2002/217) question, “is the conduct such that the operator ought to be put out of business?” in reaching my decision, I had regard to the positive and negative features set out in the Senior Traffic Commissioner’s Statutory Document 10, Annex 4, and discussed above. This was a bad case and the starting point for regulatory action was severe. I also take the view that other operators who carry out their businesses in a compliant manner would be shocked if another operator were permitted to operate vehicles against this background. I considered representations made by the operator and by Mr Owen on his behalf as to the effect that revocation would have. In the circumstances of this case, it is appropriate and proportionate to answer the Bryan Haulage question in the affirmative and I consider that revocation is the proportionate regulatory response.

I have given serious consideration to whether the operator should be disqualified from operating in the future under section 28 of the Act. I understand that Thomas Morgans has established a limited company and has submitted an application to the Central Licensing Office for a new operator’s licence, with a new operating centre and new transport manager. I have held back from disqualification under section 28 but obviously any future application by the new company will be carefully considered in view of my findings set out in this Decision.

8. Considerations and Decisions in respect of transport manager Deian Morgans

Having concluded that Deian Morgans’ good repute as transport manager is lost, I must also disqualify him under paragraph 16(2) of Schedule 3 to the Act from being a transport manager on any licence. He is disqualified with effect from 23:45 hours on 5 February 2022.

Given my findings as to Deian Morgans’ failings as transport manager, in particular the fact that he has only recently qualified and completed a transport manager refresher course, I am unable to identify any appropriate rehabilitation measure. In considering an appropriate period of time for disqualification I have considered the very serious nature of his failures, particularly the failure to rectify dangerous vehicle defects which placed other road users at risk. His excuse that he did not have time to carry out his responsibilities effectively is wholly inadequate. He failed to carry out the core functions of a transport manager and I conclude that he should be disqualified from acting as a transport manager for a significant period of time – three years. Should Deian Morgans wish to be appointed as a transport manager in the future, he will require to appear before a traffic commissioner to determine whether his repute should be restored.

Victoria Davies

Traffic Commissioner for Wales

5 January 2022