Decision

Decision for William James Cleave (OH2022092) & Transport Manager: Michael Paul Swift

Published 31 July 2024

0.1 In the Western Traffic Area

1. Written Decision of the Traffic Commissioner

2. Public Inquiry held on 10 July 2024 at Bristol

2.1 Operator: William James Cleave (OH2022092) & Transport Manager: Michael Paul Swift

3. BACKGROUND

William James Cleave is the holder of a goods vehicle standard national operator’s licence authorising the use of three vehicles and three trailers from a site in Beaworthy, Devon. The transport manager is Michael Paul Swift.

The operator attended a public inquiry in February 2022 following adverse maintenance and traffic reports from DVSA. As a result, the licence was upgraded from restricted to standard and a statutory transport manager,

DVSA made my office aware that they were conducting an investigation into the operation in relation to matters of driver management and the transport manager. The investigation found a number of shortcomings:

• No evidence was produced of journey planning

• No digital data was provided for vehicle WR66SZX

• Driver infringement reports not signed by the transport manager

• Not able to ascertain the reference period for working time

• Not all drivers were recording all their activities and discrepancies in tachograph reports

• Operator produced a zero hour’s contract for the driver which showed that the driver was responsible for paying their own PAYE obligations

• No evidence of the transport manager’s involvement

The operator responded to the shortcomings by saying that he wished to surrender his licence. A surrender request was received on 23 March. As I was aware of the ongoing investigation and considering regulatory action, surrender was refused pursuant to Section 16(4). I called the operator and transport manager to public inquiry.

4. THE PUBLIC INQUIRY

No-one attended the hearing. The call-up was sent by recorded delivery and email. I have seen a delivery receipt for the email. Royal Mail tells me that the hard-copy document was delivered on 6 June and signed for by “CLEAVE”. I am satisfied as to service and proceed to make a decision.

5. FINDINGS OF FACT

No financial evidence has been provided. I find that financial standing fails to be met and Section 27(1)(a) is made out.

The operator produced three, zero-hours, driver contracts bearing the statement “The company remind you that you are responsible for any PAYE obligations”. I have never seen such a statement before, but it appears to amount to being self-employed – the drivers would have to complete and return a self-employment self-assessment questionnaire. As the Upper Tribunal acknowledges in the decision in T/2019/054 Bridgestep Ltd and Tom Bridge, such an arrangement “is highly questionable if not a sham”. If the drivers are to maintain their self-employed status, then they must be given such freedoms that neither operator nor transport manager can exert the necessary control. Not being able to exert control over the drivers is a material change. In addition, by paying drivers in such a way, it appears to be a device to allow one or both parties to avoid the genuine tax and national insurance liability. Whether it goes as far as to be fraud in the legal sense is not for me as a Traffic Commissioner to determine. In T/2010/83 PF Boomer t/a Carousel, the Transport Tribunal found that “The Traffic Commissioner’s trust in operators’ ethical business practices was essential to effective and compliant regulation”. If the taxation arrangement does not amount to actual fraud, I find it is most certainly unethical. Section 26(1)(h) is made out. I attach significant weight.

I find that the operator failed without explanation to provide to DVSA digital tachograph data in relation to driver David Cleave and vehicle WR65SZX. That is a criminal offence pursuant to Section 99ZA of the Transport Act 1968 subject to a fine of up to £5000. Mr Cleave might want to bear that in mind the next time he considers ignoring a statutory request from a DVSA officer. Cooperation with DVSA is essential to maintaining good repute and this finding is a serious one.

There is no evidence anywhere of Mr Swift playing any part in the transport operation. It is incumbent upon the operator to engage with and supervise the work of his transport manager. Infringement reports were signed by the driver and Richard Cleave, the operator’s son. As a result of the operator failing to ensure that the transport manager was anything other than just a name on the licence, compliance has fallen far short of what is required. The Examiner describes many failings in the systems of drivers hours and working time management. Most fundamental is that the drivers are part-time, on zero-hours contracts and work elsewhere but that work is not taken into account, so any analysis is entirely worthless. I find that the rules on drivers hours and tachographs have not been complied with. I find that a very serious matter and, in finding Section 26(1)(f) made out, I attach significant weight.

Given the lack of evidence of any transport manager input, I find that the licence is without professional competence and Section 27(1)(a) is made out.

So, I turn to the questions identified by the Upper Tribunal to assist traffic commissioners in making a determination on repute. The first question I must answer (the “Priority Freight” question) is: is this an operator I can trust to be compliant in the future?  I can find little in the positive. The MOT pass rate is 100% so that is a positive, but I am cautious to attach much weight to it as there have been only five tests recorded for three vehicles over five years. That is it. I can find nothing else.

The driver arrangements, the failure to cooperate with DVSA and the failure effectively to manage drivers hours all cause me to doubt whether I can trust this operator. It is, though, the lack of any effective transport manager input over a sustained period and lack of action to correct that which causes me to find that this is not an operator who can be trusted.

So, I turn to the second question (the “Bryan Haulage” question): is the operator so bad that it needs to be put out of business? I am told that operations have ceased anyway but, that aside, the gross failure to have an effective transport manager in post and the lack of cooperation mean that this is an operator who deserves to be put out of business. Good repute is forfeit and Section 27(1) is further made out.

I am aware that Michael Paul Swift is the subject of a further adverse report from DVSA. I reserve my decision in relation to him until that has concluded.

6. DECISION

Pursuant to adverse findings under Sections 26(1)(f) and 26(1)(h) and Sections 27(1)(a), the licence is revoked with immediate effect.

Kevin Rooney
Traffic Commissioner

12 July 2024