Decision

Note of Oral Decision for D&G International Transport Ltd (OD2035378) and Mr Dan Duma (‘the Proposed Transport Manager’)

Published 2 March 2023

The Deputy Traffic Commissioner for the West Midlands decided:

1. The Operator

The Operator’s Standard International Operator’s Licence is REVOKED with effect from 23.59 hours on 31 July 2022, under:

(i) the following provisions of section 27 (1) (a) of the Act –

(a) the licence holder no longer satisfies the provisions of section 13A(2) of the Act requiring me to be satisfied that the Operator—

(b) is of good repute (as determined in accordance with paragraphs 1 to 5 of Schedule 3),

and

(d) is professionally competent (as determined in accordance with paragraphs 8 to 13 of Schedule 3); and

(ii) using the discretion afforded to me under Section 26 (1) of the Act, having found that the following grounds specified in Section 26 (1) of the Act are made out from the evidence accepted and adopted by me and determined that it is appropriate and proportionate to do so:

1.1 Section 26 (1) (c) (iii)

the Operator’s vehicles or drivers have been issued with prohibition notices by DVSA or the Police in the last 5 years- since the licence was granted on 21 October 2020;

1.2 Section 26 (1) (f)

that the Operator has breached the undertakings attached to its licence when issued to have proper arrangements in place-

• To keep the vehicles and trailers operated under this licence, including hired vehicles and trailers, fit and serviceable;

• To ensure that the rules on drivers’ hours and tachograph records are met and to keep proper records;

• To notify material changes in the circumstances of the Operator within no more than 28 days;

1.3 Section 26 (1) (h)

that there has been since the licence was granted a material change in any of the circumstances of the holder of the licence which were relevant to the issue of its licence, in this case:

• the foregoing;

• the Operator’s failure to have an effective correspondence address and to respond to correspondence sent to the address and email addresses for correspondence given on licence records (apparently the address of its accountant which is also the company’s registered office and address given for the director at Companies House) and the two nominated operating centres, concerning compliance concerns sent by DVSA and the Traffic Commissioner;

• the Operator’s failure to comply with the Public Inquiry process by the provision of documents requested in the letter calling it to the Inquiry listed for hearing at 14.00 hours on 23 June 2022 that should have been supplied at least 7 days prior to that date and its further failure to cooperate with the Inquiry process by attendance at the listed hearing of 23 June 2022 represented by its director or an appointed representative;

• the Operator’s failure to notify the material changes in its professional competence once it became apparent to the Operator that its former Transport Manager Mr Florin Buzle was not exercising the effective and continuous management of the transport activities of the company required by him as the transport manager, such that it appears to me from the evidence of Mr Dan Duma that Mr Buzle was acting as the transport manager in name only for a significant period prior to his resignation effective 1 April 2022 and that the Operator was aware of this and continued paying him;

• the Operator’s failure through its sole director Mr Dan Duma, who gained his CPC in Transport Management for goods vehicles in February 2022 in Romania, to comply with licence undertakings to ensure that systems and records were managed and monitored between the date of Mr Buzle’s resignation and the date of the adjourned Inquiry, with a box of maintenance related records produced in total disarray and no evidence whatsoever of analysis and follow up of historic downloads by the Operator of driver cards and vehicle unit data, prior to the extremely recent engagement of Invergold Associates as consultants and the work carried out by them with the director over the previous few days, remaining incomplete due to problems accessing the data on the Operator’s system including driver card data;

• Mr Dan Duma’s absences from the UK, in Romania, the full extent of which remain unclear but are accepted for at least the last two weeks and on and off prior to then due to personal family issues requiring his presence in the country. His passport had expired 13 June 2022. In his absences, two former drivers including Mr Gabriel Obrisan are delegated supervision of the drivers in the UK in liaison with him concerning work instructions, assisted by his daughter managing the night shift work, by telephone. Records have been kept at Mr Duma’s rented UK residence at 87 Portland Drive, which is multiple occupation and was also rented by the former Transport manager until April 2022. It appears to me from my review of the records that Mr Duma paid scant attention to these records before or after the departure of the former transport manager;

• the Operator has been without a nominated transport manager in place since at least April 2022 with no period of grace applied for from the requirements of professional competence. The application to vary the licence to add Mr Dan Duma as transport manager was withdrawn at the Inquiry. A covering letter and TM (1) form was provided to me at the Inquiry, dated Sunday 26 June 2022, to add a Mr Carl Partington as a Transport Manager but this remained to be completed and processed by the Central Licensing team in Leeds for my consideration and Mr Partington was unable to attend the Inquiry. It appears to me that, as at the date of Inquiry, the requirements of professional competence were still not met.

As the operator’s licence has been revoked the application to vary the licence is also effectively refused.

2. The Proposed Transport Manager, Mr Dan Duma

The application to vary the licence to add Mr Duma as the nominated transport manager for this licence was withdrawn at the Inquiry and he is not acting as a Transport Manager on any operator’s licence at this time. I have found that the Operator has lost its good repute and Mr Duma is the sole director of the Operator company. If Mr Duma seeks to act as a Transport Manager for any licence in future, he will need to satisfy the Traffic Commissioner that he is of the appropriate good repute and professional competence at that time having regard to this decision.

2.1 Disqualification under section 28

I have not made an order under section 28 against the company or its director Mr Dan Duma. My decision was very close on this issue but, on balance, I determined there remains a future possibility that the requirements for a new licence may be met but will, at the very least, require the following to satisfy the Traffic Commissioner that good repute has been regained and the Operator shall be compliant in future despite this very poor history:

• tangible credible evidence of the director’s place of actual residence and of his predominant physical presence in the UK;

• formal interpreter support in place for the purposes of dealing with operator licence compliance and the communications with the DVSA and the Traffic Commissioner and arrangements in place to ensure licence records are accurate and all material changes are notified;

• regular contracted transport consultancy support and participation as well as a robust effective external transport manager engaged for extended hours and a formal regular written reporting regime to the director by the consultant and the transport manager to be formally translated into Romanian by an interpreter;

• written confirmations from each of the transport consultant and the proposed transport manager each undertaking to advise the traffic commissioner promptly in writing

(i) if they have concerns regarding the compliance of the operator with advice and instructions given by them to ensure compliance with the law and the operator’s licence and/or the effectiveness of the systems and records in place to achieve compliance; and/or (ii) of their resignation.

For the avoidance of doubt, whilst I have not made a separate order of disqualification, this does not in any way indicate that any future application may be granted and, if and when made, shall be determined before the revocation of this licence takes effect.

3. Summary of reasons for decisions

3.1 Public Inquiry Hearing 28 June 2022 (adjourned from 23 June 2022)

The issues to be considered by me at the Public Inquiry for the Operator were set out in the letter to the Operator from the Office of the Traffic Commissioner dated 19 May 2022 calling it to Public Inquiry, contained in the Brief for the Public Inquiry prepared by the OTC for the Operator (‘the Brief’) at pages 10 to 16.

The hearing listed for 23 June 2022 concerning the Operator and Proposed Transport Manager was adjourned by me to 28 June 2022 as follows.

I have seriously considered taking regulatory action and also refusing the application to vary this licence in the absence today, without apparent reasonable cause, of Mr Duma as the proposed Transport Manager and the Operator, represented by its director Mr Dan Duma (or another appropriately authorised representative), taking into account the issues to be considered as well as the total failure of the Operator to provide the documentation required by the letter calling it to Inquiry including the evidence of finance and the other documents relating to compliance with licence undertakings concerning maintenance, drivers’ hours and tachograph records.

As some confusion appears to have arisen during various telephone calls from and to this Office concerning today’s hearing (to be attended by a representative Mr Gabriel (?)) and a further possible continued hearing on Tuesday morning next week (to enable Mr Duma to appear in person), I exceptionally and reluctantly adjourn the Inquiry as a whole to 10.00 Tuesday 28 June 2022. The failure to attend today will be a further issue to be considered by me at this relisted hearing, particularly given the apparent poor history, including communication deficiencies and failures to respond when required to compliance concerns, that already fell to be considered.

In adjourning for such period, I also note the seriousness of the matters under consideration and the further concerns raised by the failures of the Operator, acting by Mr Dan Duma, to comply with the Inquiry process, which has been listed at the Operator’s request following notification of Traffic Commissioner’s proposed revocation of this licence. I direct, most firmly, that the outstanding documentation required by the call up letter (that should have been produced at least 7 days before today) must all now be produced at the OTC, 38 George Road, Edgbaston, Birmingham, B15 1PL   by no later than 1.00 pm on Monday 27 June 2022.

The documentation was supplied mid afternoon on Monday 27 June 2022, delayed by some technical difficulties, with written representations provided by the Operator’s very recently appointed transport consultants, Invergold Associates.

The Public Inquiry took place on 28 June 2022. The Operator attended represented by Mr Dan Duma its sole director, assisted by a Romanian interpreter appointed by the Traffic Commissioner. He was accompanied by Mr Gabriel Obrisan, a driver and mechanic for the Operator who assists with the allocation of work to drivers in the West Midland Traffic Area on a day-to-day basis. The Operator was represented by Mr Charles Ahmed of Invergold Associates.

4. Background.

The following summary of the background to my considerations is drawn from the Traffic Commissioners’ operator licensing records, Companies House records, the Brief, the representations and submissions made and supporting documentation produced for the Operator including the evidence of finance and the oral evidence of Mr Dan Duma at the Public Inquiry. I have also referred to the relevant legislation and relevant guidance contained in the Senior Traffic Commissioner’s Statutory Documents.

The Operator holds a Standard International Goods Vehicle Operator’s licence granted by the Traffic Commissioner for the West Midland Traffic Area with effect from 21 October 2020 currently authorising the operation of up to 4 vehicles and 4 trailers with 4 vehicles specified on licence records to be in its possession.

On 6 February 2021 a roadside check of a 44-tonne articulated vehicle PX11 CEU, specified against this Operator’s licence between 2 February 2021 and 14 February 2021 and being driven by the then nominated Transport Manager Mr Florin Buzle, was subject to a DVSA roadside check. An Immediate roadworthiness prohibition notice was issued in respect of the vehicle condition- an Immediate prohibition for condition of tyres described as ‘Tyre has damage to the tread area and cord or cords are exposed’. The trailer was clear of defects.

A road side check of vehicle MX65 CEO and trailer on 28 April 2021 found the vehicle and trailer to be clear of defects.

An application to vary the licence to add an additional operating centre at Hazell Way Nuneaton and to double the authorisation under the licence from 4 vehicles and 4 trailers to 8 vehicles and 8 trailers was received from the Operator in October 2021. It was incomplete and various requests for further information followed.

A subsequent roadside check of vehicle ML64 TYG and the trailer it was hauling on 2 November 2021 found roadworthiness defects on both the vehicle and trailer. The vehicle was issued with an Immediate prohibition notice for an inoperative direction indicator and the trailer with a delayed prohibition notice for missing obligatory spray suppression equipment.

The driver of the tractor and trailer combination on 2 November 2022 was Mr. Raul Viorel Lingurar. DVSA Traffic Examiner Nicola Carpenter checked the tachograph data for the vehicle and ascertained that the vehicle unit had not been downloaded since 20 June 2021, being 153 days (the maximum download interval required being 90 days). She also checked the driver’s digital tachograph card and it appeared that the driver’s digital tachograph card had not been downloaded by the Operator within the 28 days maximum time period and no latest download data was available. The DVSA TE determined that she should send notice to the Operator to produce data downloads under section 99ZA to determine if any analysis of tachograph data was being completed. This was sent using the email address on Licence records for the Operator on 15 November 2021 and was followed up with a call to the Operator on 25 November 2021. The person she spoke to was in Romania, seemed somewhat confused about the issue but confirmed they had received the email and gave the DVSA TE an email address for the nominated transport manager for a reply. This was sent by the DVSA TE to the given email address. No reply was received to the data request. Visits by the DVSA TE to the Operator’s 2 operating centres on 25 November 2021 ascertained that the Operator’s vehicles were regularly using these sites.

On 3 December 2022 having not received the data required to be provided by 29 November 2022, the DVSA TE issued further letters to the Operator to all known addresses and also left a message on the Operator’s main business number, which went to answerphone. A response was required by 17 December 2021. No response has been received from the Operator. The conclusion of the DVSA TE was that she needed to send the case to the Traffic Commissioner as:

‘D & G International Transport appear to be unwilling or unable to comply with their operator’s licence by providing data for us for analysis or communicate with us regarding issues they may be having.’

It is an offence to fail to comply with a section 99ZA request for data.

The Traffic Commissioner considered the foregoing failure to respond to the DVSA request for data and directed that the Operator should be subject to proposal to revoke the licence proceedings under section 26 (1) (h) and section 27 (1) (a) and (b) of the 1995 Act. The ‘proposal to revoke’ letter was sent by the OTC to the Operator’s correspondence and other known addresses on 7 March 2022 and is at pages 42 and 43 of the Brief.

On 4 April 2022 the former transport manager for the operator Mr Florin Buzle forwarded a notice sent to the Operator’s director advising that he was resigning as TM with effect from 1 April 2022 ‘for personal reasons’. He has since applied to act as a transport manager for other applicant operators in the same local area. His good repute and professional competence remain under current consideration by the Traffic Commissioner at this time.

The proposal to revoke process of the letter was then supplemented by consideration of the ‘Professional competence’ of the Operator after the loss of transport manager notification. The ‘standard’ loss of transport manager letter was sent by the OTC on 11 April 2022 and is at pages 58 and 59 of the Brief. An application made by submission of a TM (1) form was made on 30 April 2022. It is accompanied by a CPC certificate and translation from Romanian to English which states that that Mr Duma passed the CPC qualification examination organised in Romania on 26 February 2022. The Certificate appears to have been issued on the same date as the examination. Questions arise under Article 8 (2) of the Adopted Regulations and the veracity of the certificate.

Following receipt of the letter dated 7 March 2022 the director requested a Public Inquiry before any regulatory action including revocation is considered. All matters have therefore been included in this Inquiry for consideration.

5. Considerations and Findings

I have considered the positive features that I find in this case. I find that -

a. The Operator has no prior adverse compliance history as an operator, this is its first operator’s licence and its first Public Inquiry. It has attended the Public Inquiry;

b. Some of the DVSA roadside encounters have found the vehicle and trailer to be free of defects;

c. The Operator has demonstrated financial standing for the licence.

Balanced against this, I find the following material negative features:

a. Insufficient or no systems and procedures in place to comply with operator licence requirements, including the production of records and tachograph data, which among matters prevented DVSA from completing their investigations;

b. Failure to comply with the Inquiry process by the production of records requested in the call up letter in advance of the Inquiry listed for 23 June 2022 and the provision of documents very shortly before the adjourned hearing of 28 June 2022 which were incomplete and in no apparent order;

c. Failure to have an effective correspondence address and effective arrangements to receive correspondence sent to the nominated operating centres for the licence;

d. Negative encounters with DVSA resulting in the issue of prohibition notices to vehicles and trailers of the Operator;

e. The use of a transport manager in name only who failed to exercise the effective and continuous management of the transport activities of the operator required of him up to his resignation with effect from 1 April 2022 and a failure to apply for a period of grace from the requirements of professional competence on his resignation;

f. The apparent failings of Mr Dan Duma to manage and monitor the operator’s compliance, including records, following the resignation of Mr Buzle and putting himself forward as the nominated transport manger;

g. Failure to keep the Traffic Commissioner notified of material changes as required by the licence including the requirements of professional competence.

I have considered the appropriate weight to be afforded to these various factors in the balance. I find that substantial weight is afforded to my negative findings which are fundamental factors of the trust afforded to all operators granted an operator’s licence. Integrity and transparency are fundamental features of the trustworthiness required to be of good repute for the purposes of operator licensing. The promises of future improvements and actions given at the Inquiry are given reduced weight as these are untested as well as belated. As pointed out in the guidance given by the Upper Tribunal in determining the appeal by Arnold Transport, ‘actions speak louder than words….’

I find that the combination of negative features of this case significantly outweigh the positive factors and I consider that the conduct is so serious that regulatory action against the licence must be considered.

I have considered the guidance given in the latest Senior Traffic Commissioner Statutory Document No. 10 on ‘The Principles of Decision Making and the Concept of Proportionality’. The legislation governing this jurisdiction exists to ensure the promotion of road safety and fair competition and traffic commissioners will have regard to the relevant decisions of the higher courts and the principle of proportionality in deciding what intervention is commensurate with the circumstances of each individual case. I consider this to be a ‘severe to serious case’ for the purposes of Annex 4 of that Statutory Document., that is the Operator’s conduct falls into the category of:

Persistent operator licence failures with inadequate response or previous public inquiry history

The relevant starting point provided for considerations of regulatory action in a ‘serious’ case is:

Revocation with consideration of disqualification

Suspension for up to 28 days

Significant time limited curtailment that may materially affect the transport operation

I then pose myself the question suggested by the Transport Tribunal in its decision upon appeal 2009/225 Priority Freight Limited and Paul Williams, namely, is the operator someone I can trust to ensure future compliance, my conclusion is ‘No.

I have then asked myself the question suggested by the Tribunal decision upon the Appeal 217/2002 Bryan Haulage Limited:

“. . . the question is not whether the conduct is so serious as to amount to a loss of repute but whether it is so serious as to require revocation. Put simply, the question becomes “is the conduct such that the operator ought to be put out of business?” (My emphasis).

I answer the Bryan Haulage question, as emphasised by me above, in the affirmative.

I then, finally, determine that the Operator has lost its good repute and its professional competence for the purposes of operator licensing and that the public interest in maintaining the integrity of the operator licensing system requires me to revoke this licence, and that it is not disproportionate to do so in this particular case, even if this puts the operator out of business.

Having revoked the Licence, I have then considered whether an order of disqualification is appropriate in this case against the Operator under Section 28 of the Transport Act. In this case I do not find that the objectives of the system, the protection of the public and fairness to other operators require I take the additional step of making any orders of disqualification., but any future application shall require careful scrutiny and is likely to be considered at a Public Inquiry before the Traffic Commissioner.

I have ordered accordingly.

FIONA HARRINGTON, LL. B (Hons), Solicitor

Deputy Traffic Commissioner for the West Midland Traffic Area

28 June 2022