Decision

Decision for West Herts Tipper Services Ltd (OF2031340)

Published 23 October 2020

In the Eastern Traffic Area.

Confirmation of the Traffic Commissioner’s decision.

1. Background

West Herts Tipper Services Ltd seeks a Standard National Goods Vehicle Operator’s Licence authorising 10 vehicles only. That application was received on 25 March 2020 but delayed by the coronavirus restrictions. The Director is Mr Alexander De Gabriele. The proposed holder of a Certificate of Professional Competence was Jolanta Ciuksiene until his resignation email of 13 July 2020.

There is one proposed Operating Centre: First Yard, Rear of Truckstop, Hill & Coles Farm, Flamstead, St. Albans AL3 8HA. The applicant proposed to have maintenance conducted by C&M Services with inspections due to take place every 6 weeks.

This was the fourth licence where Mr Ciuksiene was seeking to act for. He is also a Director of a firm known as Hirett Ltd. ## Hearing

The Public Inquiry was listed for today, 11 August 2020, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The applicant was notified by email at close yesterday that the hearing would proceed. I waited until 2:25 pm but the operator failed to appear.

2. Issues

The Public Inquiry was listed to allow the applicant opportunity to pursue its application and specifically in relation to the following sections of the Goods Vehicle (Licensing of Operators) Act 1995:

• Section 13A(2)(b) - Good Repute
• Section 13A(2)(c) - Financial Standing
• Section 13A(2)(d) - Professional Competence
• Section 13C(5) - Availability of Operating Centre.

On 13 July 2020, an email was received to indicate that the proposed CPC holder had resigned. No information was received from the applicant, so the OTC sent an email on 24 July 2020 seeking confirmation of the applicant’s proposals to meet professional competence.

The applicant had already offered the following undertaking: West Herts Tipper Services Ltd to provide financial evidence in the name of West Herts Tipper Services Ltd covering July, August and September 2020, to the Central Licensing Office in Leeds by no later than (date). This must show that the operator has continued to meet the required level of available finance throughout the period by reference to an average balance, dependant on the rates applicable at that time. The applicant was requested to supply up to date financial evidence by 4 August 2020.

3. Evidence

On 25 April 2020, the applicant was asked to explain any links with H & H Recycling Ltd. Its accounts are showing overdue at Companies House. In response the operator stated that West Herts Tipper services is solely owned by Alex De Gabrielle and that the applicant had no knowledge of H&H Recycling Ltd as they will be taking over their operating yard. The applicant claimed that it has no financial or business ties with them. However that email response was labelled “From: Timothy Halpin westhertstiperservicesltd@gmail.com”.

That prompted a letter from the OTC dated 15 May 2020 asking the applicant to explain its links to Timothy Halpin, who was a Director of H & H Recycling Ltd, and for the source of the significant deposit into the bank account and confirmation regarding the Operating Centre. The letter also sought an explanation from the proposed transport manager about how those duties would be discharged.

In the applicant’s response of 18 May 2020, the Director then stated that he had known Mr Halpin for 5 years and that they had subsequently developed a business relationship. Mr Halpin used his facility to tip materials on site but that is as far as the working relationship goes. Mr Halpin then emailed on 18 May 2020, with additional details, claiming that Mr De Gabrielle had offered him a job. He also stated that Mr De Gabrielle has asked him to contact OTC to give this information. Mr Halpin stated that if his current licence is revoked, he will need a job and income. He also stated that he would send over a tenancy agreement to show that Mr De Gabrielle is renting his yard.

The permission that was provided appeared to suggest that Mr Halpin owned the site, whereas other documentation suggests that H & H Haulage Ltd is the owner.

Due in part to inconsistencies in the information provided, the OTC informed the applicant that I remained to be satisfied that the statutory criteria were met. The applicant subsequently requested this public inquiry.

4. Determination

As stated above, the nominated CPC holder, Jolanta Ciuksiene, resigned as the proposed TM on 13 July 2020. Having allowed time for the applicant to make contact, the Office of the Traffic Commissioner sent an email on 24 July 2020, enquiring about how the applicant proposed to demonstrate professional competence but again, there was no response.

The call up letter of 17 July 2020 gave Directions that any documentation to be relied upon, including financial evidence, must be submitted by 4 August 2020. Nothing was received.

On 6 August 2020, the operator sent the following

Unfortunately due to Covid 19 I am at present self Isolating as after a recent visit to London I have started to exhibit symptoms of COVID. I have been advised to self isolate for two weeks. This means I will not be able to attend until the 20th August in a best case scenario. Can I please ask that you postpone the inquiry until a later date.

In those circumstances I offered to conduct the hearing by video link. This was communicated to the applicant on 10 August 2020. That email also asked the applicant to submit the overdue finance and other evidence.

The applicant’s response claimed that the financial evidence had been submitted 3 times. There is no evidence that it has ever been received either by post or via email. What has been provided is not in an acceptable format, appears to be a screen print and has been redacted. That cannot be blamed on the pandemic or illness, as it should have been lodged by 4 August 2020.

The response also claimed that the applicant Director was too ill to participate in a hearing. The applicant was advised that he may need to submit medical evidence, by reference to the Statutory Document on Case Management, to which the applicant responded with the following:

I’ve been advised to self isolate!

I have not yet been tested and will not have time to do so beforehand.

I will instruct legal council today on this matter. If you insist on dealing with this case in my absence it will be my lawyers that you here from next.

There is considerable public interest, particularly where tribunal time is restricted by the current pandemic, in hearings progressing as listed. As per the Tribunal decision in 2010/064 JWF (UK) Ltd, I am entitled to consider the conduct of the applicant. As the Statutory Document identifies, there may be occasions when the adjournment is simply a device to postpone the impact of a decision. Parties who wait until the last moment to apply for an adjournment will justifiably arouse suspicion as to their motives. The Tribunal has indicated that requests for adjournments on medical grounds should be supported by medical evidence which states if and why a party cannot attend a hearing. That principle has been tested by the circumstances of this pandemic but the applicant’s responses do not stand up to scrutiny. Current Government Guidance can be found at: https://www.gov.uk/get-coronavirus-test That guidance is very clear:

When to get a test

If you have coronavirus symptoms, you need to get a test done as soon as possible. You need to get the test done in the first 5 days of having symptoms. Book a visit to a test site to have the test today. Or order a home test kit if you cannot get to a test site.

On days 1 to 4, you can get tested at a site or at home. If you’re ordering a home test kit on day 4, do so by 3pm.

On day 5, you need to go to a test site. It’s too late to order a home test kit.

I am entitled to conclude that the applicant Director is unlikely to have received medical advice and that the response is more closely connected to the status of the application.

As per the Tribunal decisions in 2009/524 Ocean Transport Ltd and 2018/033 A Bros Halal Meat Ltd, there is a rebuttable presumption that a hearing will proceed as listed even in the absence of parties. I therefore proceeded to consider the position of this application. I have only now been supplied with: an electronic copy of an ‘employment agreement’ with a proposed CPC holder dated 29 July 2020; a copy of an undated copy of what appears to be the final page of a TM1 Application form; and a maintenance contract dated 29 July 2020 with Carlow Plant & Commercial Ltd. I am unable to determine whether this is intended to replace the contractor proposed previously. I am unable to determine the genuine link between the applicant and the newly proposed CPC holder, which must be explored based on the TM1 page. I am concerned by that latter document and will alert the licensing staff to conduct additional checks, as a result. There has been no attempt to address the other matters raised in the bundle which was served on 24 June 2020.

As at the date of this hearing I remain to be satisfied in terms of section 13A(2)(b) – repute, section 13A(2)(c) - financial standing, section 13A(2)(d) - professional competence and section 13C(5) - availability of the proposed Operating Centre. The application is refused on that basis. The applicant is at liberty to renew its application but will need to address all matters at issue and to do so promptly if that is to progress in future.

RT/TC/11/8/20