Decision

Written decision for AJL Transport Limited (OK1107898) and Marie Elaina Lee - transport manager

Published 20 November 2020

In the South Eastern & Metropolitan Traffic Area.

Goods Vehicles (Licensing of Operators) Act 1995.

Traffic Commissioner’s Written Decision.

1. Decision

Pursuant to adverse findings under Section 26(1)(a), (c)(iii), (e), (f) and (h) of the Goods Vehicle (Licensing of Operators) Act 1995 and Section 27(1)(a) and (b) of the 1995 Act, the Operator no longer meets the mandatory requirements of Section 13A (2) – Good Repute and Professional Competence. Accordingly, Licence OK1107898 is revoked with effect from 23:45 on 22 December 2020.

Upon a finding that the Transport Manager Mrs Marie Elaina Lee no longer satisfies the requirements of Section 13A(3) of the 1995 Act to be of good repute in accordance of Schedule 3 of the said Act, and a finding that she is unfit to manage the transport activities of an undertaking, Mrs Marie Elaina Lee is disqualified from acting as a Transport Manager, on any Licence in a Member State for a period of 4 years from 23:45hrs on 22 December 2020 pursuant to Article 4 of Regulation (EC)1071/2009.

Former Director Mr Anthony John Lee is disqualified from holding or obtaining an Operator Licence or being involved in the management, administration or control of any entity that hold or obtains an Operator Licence in Great Britain to full the extent provided by Section 28 of the 1995 Act for a period of 4 years with immediate effect.

2. Background

The history is summarised in the hearing bundle case summary and I do not repeat it all here. The sole trader Licence of Anthony John Lee (OK0228098) was called a Public Inquiry in August 2011 when it was revoked due to the change of entity and unsatisfactory maintenance. AJL Transport Limited (‘the Operator’) has held a Standard National Operator Licence since the 26 June 2012, currently authorising the use of 5 vehicles. It was called to a Public Inquiry in November 2013, including unsatisfactory maintenance, where the Licence was curtailed for a period.

After a roadside encounter on 10 October 2019 the Operator came into DVSA’s radar (vehicle unit not downloaded for 505 days and on five occasions the vehicle was driven with no driver card inserted). A follow up Traffic Examiner investigation commenced on 22 October 2019, including a visit to the operating centre on 19 December 2019. The outcome of that investigation was ‘unsatisfactory’ for failings across the board, including 256 instances of driving ‘off card’, use of a vehicle not specified on the Licence over a long period, no driver licence checks and no systems to analyse drivers hours and working time directive compliance. It also transpired that the Operator was using an unauthorised operating centre. At a roadside encounter on 13 March 2020, DVSA found many of the previous issues still apparent.

Due to the unsatisfactory Traffic Examiner encounters and necessary interventions and receipt of a variation application to increase the vehicle authorisation to 10 vehicles, my office requested that a full Desk Based Assessment take place of all the Operator systems – Covid 19 restrictions prevented more at that stage. Both the reports, that of the Vehicle Examiner and Traffic Examiner, were marked as “unsatisfactory”.

The Operator was put on notice on 6 May 2020 that it would be called to Public Inquiry along with the Transport Manager to consider the adverse DVSA reports known to that point. A date could not be given at that time due the Covid 19 emergency. On 7th September 2020 my office told the Operator and Transport Manager that the matters set out in the letter in the 6 May 2020, together with updated DVSA reports, would be considered at a Public Inquiry on 6 October 2020.

3. Hearing

The Public Inquiry commenced on 6 October 2020. In attendance were Mr Anthony John Lee and Mrs Marie Elaina Lee. I was notified the previous day that as of 1 October 2020, Mrs Lee was the sole director, and that Mr Lee would be taking no further part in the business. Accordingly, Mrs Lee attended as current director and Transport Manager and Mr Lee attended at former Director. All parties were represented by Mr Jared Dunbar (Solicitor). DVSA Traffic Examiner Mr Trevor Coote gave evidence remotely via Microsoft Teams on behalf of DVSA. At the conclusion of the hearing I confirmed that some additional reports run by Mr Coote during the Hearing would be forwarded the same day to Mr Dunbar and that he had 7 days to lodge any written representations in relation to those documents and the evidence given at the Hearing. I confirmed that thereafter I would issue my written decision, hopefully in the next 28 days. Mr Dunbar was not instructed to send in any further representations. I received a letter from Mr Lee instead.

3.1 Documents and Evidence

Prior to completing this written decision I have reviewed the following:

1. Public Inquiry brief
2. Updated report to Public Inquiry by Traffic Examiner Trevor Coote dated 1 October 2020
3. Written submissions lodged by the Operator’s solicitor on 5th October 2020 and documents referred to therein.
4. Compliance audit lodged with the Operator’s papers.
5. Original maintenance file for CN16HVX
6. Original driver file for Mr Andrew Charles James
7. My contemporaneous handwritten notes.
8. Letter from Mr Lee undated but received on 12 October 2020.
9. South Bucks District Council and another V Porter(FC) (2004) UKHL33, English v Emery Reimbold & Strick Ltd [2002 EWCA Civ 605 and Bradley Fold Travel Limited & Peter Wright v Secretary of State for Transport [2010] EWCA Civ 695 in relation to written decisions generally; 
10. Upper Tribunal Decisions and other guidance I consider relevant to this determination as listed elsewhere in this Decision; 
11. The Senior Traffic Commissioner’s Statutory Guidance and Statutory Directions current versions (SGSD).

3.2 The Issues

Mr and Mrs Lee did not materially challenge any of the DVSA written and oral evidence. The Operator admitted operating more vehicles than authorised (at times up to 9 vehicles) from September 2019 through to July 2020. The Transport Manager denied being aware of this unlawful use until a point between April and June 2020. However, the use of additional vehicles continued until July 2020. It is left for me to determine my factual findings in that regard.

3.3 Consideration and Findings

The Operator and Transport Manager made numerous admissions and put forward positives/mitigation as follows:

Admissions

• The Operator and Transport Manager were unable to or did not do effective digital downloads such that raw data could be produced to DVSA until September 2020. This materially impacted DVSA investigations in December 2019, summer 2020 and for the pre Public Inquiry Traffic examiner assessment.

• There is evidence of infringement reports February to September 2020 but the Transport Manager admitted that she had ‘major issues’ with her computer for an unspecified period but also she did not really understand the reports until Mr Russell became involved in June 2020.

• Mrs Lee did not devote the time necessary to fulfil the Transport Manager role due to ‘personal family issues’. Most of the driver infringement reports produced to the hearing are signed by Mr Lee not Mrs Lee.

• The Operator has used more vehicles than authorised – up to 9 vehicles – from September 2019 until 10 July 2020.

• Unauthorised use of an operating centre from an unspecified date.

• Breach of undertakings in relation to vehicle roadworthiness and drivers’ hours and tachographs. Prohibitions have been issued, including as recently as 13/3/20. The MOT pass rate is poor. The maintenance documentation was disappointing – out of date PMI forms (2009), no brake testing, IM74 (other dangerous defects) is never checked, majority of forms no tyre tread depths or tyre pressure readings.

• Confusion on the Operator’s behalf as to which vehicles were locked in and when for the purposes of securing the tachograph data. The Operator suggested that ‘locking in’ was automatic once a company card has been inserted. It has subsequently been confirmed to me in another recorded hearing that it is not automatic. There is a specific process, and the Operator must scroll down the menu and go through a specific lock in and lock out process.

• Shared use of a VOL login, contrary to the access terms

Positives

• Some training took place from January 2020 and a driver handbook was introduced.
• Online driver licence checks were also taking place from that time.
• Mrs Lee attended a New Operator seminar in 2014 and she did a 2 day Transport Manager CPC Refresher in July 2020.
• Mrs Lee intends to nominate someone else as Transport Manager if the Licence continues.
• Consultant engaged.
• The authorised vehicles now have tracker systems.
• If the Licence continues the maintenance will be outsourced with regular roller brake testing.

In undertaking my balancing exercise, I remind myself of the helpful guidance from the Upper Tribunal in the case of 2006/277 Fenlon:

It has been said on many occasions that trust is one of the foundation stones of operator licensing. Traffic Commissioners must be able to trust operators to comply with all the relevant laws, rules and regulations because it would be a physical and financial impossibility to police every aspect of the licensing system all day and every day. In addition, operators must be able to trust other operators to observe the relevant laws, rules and regulations. If trust between operators breaks down and some operators believe that others are obtaining an unfair commercial advantage by ignoring laws, rules or regulations then standards will inevitably slip and the public will suffer.

I have listed the positives in terms of systems such as handbooks and training since January 2020. I also note the parties candour around some of the failings. However, these can only carry limited weight where an Operator has used vehicles up to almost double its authorisation over 10 months. The director did it knowingly for commercial gain. The Transport Manager relies on ignorance and director duplicity until June 2020. A transport manager is tasked with exercising continuous and effective management of the transport operations. That is why regular downloads of driver card and VDUs are required. The Transport Manager has turned her head to the obvious. Regular driver digi cards show vehicles she claimed to not know existed. Even when she did know, the steps taken to prevent/check ongoing use were amateur, by way of example demanding the vehicle keys without any other form of immobilisation.

This Operator has been operating digital vehicles since 2012 and not 2018 as suggested by the Operator (SF57GGU specified 12/4/12). There is no good reason or justification for failure to produce data to DVSA in a timely manner over 9 months. On balance I do not accept that a flood was the reason for the failings in December 2019. The Traffic Examiner saw no evidence of a flood and it failed to produce the Desk Based Assessment data for 18 January 2020 until 29 February 2020 in a timely manner (months late and not all of it). Analysis reports were not produced in response to the original request or the follow up in July 2020. They were only attached to the Operator’s DBA response.

It is clear to me that no meaningful lesson was learnt from the November 2013 Public Inquiry. Unsatisfactory maintenance was also the subject of the sole trader Public Inquiry in 2011. Assurances given as to future compliance to my colleague were empty. This operation was an accident waiting to happen. Mr Lee was left to deal with the drivers much of the time and his approach was commercially driven. Mr Lee was left to deal with the maintenance. His approach to maintenance standards remains years out of date. Mrs Lee retained some responsibility for tachograph analysis but was not up to it. The improvements have come via the Consultant in readiness for a Public Inquiry. In fairness the solicitor’s representations were on point on seriousness and he set out to manage his clients’ expectations.

When looking at the totality of the failings and their seriousness against the very recent positives, the evidence is overwhelming that I am unable to trust this Operator moving forward. Save for the day of the hearing, Mr Lee was the driving force as sole director, and his conduct informs the Operator’s good repute (2013/008 Vision Travel International Limited and T2013/61 Alan Michael Knight). Mr Lee’s approach to road safety and fair competition are wanting to a significant degree. Promises that he will not be involved moving forward are untested and previously assurances have been given with no integrity behind them. The Transport Manager permitted this by her numerous failings, mainly by omission. This case sits at the top end of the SEVERE category of Annex 4 Statutory Document NO. 10 (Principles of Proportionality and Decision Making), even after mitigation.

In 2007/459 KDL European Ltd the then Transport Tribunal said they we are satisfied of the need “to make an example of the operator so as to send a warning to the industry as a whole”. This is consistent with the approach by the five-judge Court of Session in the Thomas Muir case (see paragraph 2(xiii) above) where deterrence is expressly mentioned (“in particular for the purpose of deterring the operator or other persons from failing to carry out their responsibilities under the legislation”). This is not by way of punishment per se but, as Lord Cullen said, is “in order to assist in the achievement of the purpose of the legislation”. We answer the question posed in 2002/17 Bryan Haulage (No.2) “is the conduct such that the operator ought to be put out of business” in the affirmative”. This is a bad case and this Operator deserves to be put out of business. I hope that the message sent out will be clear to all that this wholesale disregard for the operator licensing regime will not be tolerated. Traffic Commissioners take their role of maintaining standards for the benefit of all Operators very seriously. It is entirely appropriate and proportionate to revoke the Licence and find the Operator’s good repute lost to protect other road users and the legitimate hardworking industry. Accordingly, I have reached the decision set out in paragraph 1 above.

For the same reasons Mrs Lee loses her good repute as a Transport Manager. It is the Transport Manager’s role to provide continuous and effective management of the transport operations. The Transport Manager CPC is a professional qualification. A professional approach is expected at every moment an individual is attached to a Licence. The Transport Manager provides an important safeguard, holding owners/directors of standard licences to account against the conditions and undertakings on the Licence. Robust systems are required to be implemented and maintained, with owners/directors still exercising quality monitoring and control of the operations. Mrs Lee’s conduct bears no resemblance to those professional standards. You cannot pick and mix which elements of the role you choose to do and abdicate or ignore the rest. You cannot allow the time necessary to do the role properly to be diluted by other pressures, no matter how compelling. There may have been some green shoots of recognition and progress with the Consultant and Solicitor’s advice, but those shoots are too fledgling to provide meaningful evidence of integrity, competence, or suitability. Accordingly, I have reached the decision set out in paragraph 2 above.

4. Disqualification:

The STC Statutory Document no. 10 also includes a helpful summary on the case law on disqualification, including:

The case law indicates a general principle that at the time the disqualification order is made that the operator cannot be trusted to comply with the regulatory regime and that the objectives of the system, the protection of the public and fairness to other operators, requires that the operator be disqualified (see 2009/011 Katherine Oliver and J W Swan & Partners).

In certain circumstances a traffic commissioner may order that an individual is not only disqualified from holding or obtaining an operator’s licence but also from being involved in management, administration or control of the transport operations of an entity that holds or obtain such a Licence in Great Britain (see 2015/078 Black Velvet Travel Ltd, Western Greyhound Ltd and Michael John Bishop). The Upper Tribunal had regard to a decision of the Transport Tribunal and in particular that a traffic commissioner must ensure that the purpose of an order is not undermined or defeated by a disqualified person becoming involved with the management of another operator’s licence (see 2005/457 Leslie John Ings trading as Ings Transport).

It is clear that each case must be considered on its own merits (see 2009/011 Katherine Oliver and J W Swan & Partners, paragraph 12) and relies on the traffic commissioner to assess what is necessary to balance the objectives of the legislation including the protection of the public and ensuring fairness to the legitimate licensed transport industry against the potentially significant infringement of the licence holder’s or individual’s rights.

In T/2010/29 David Finch Haulage the then Transport Tribunal said:

The principles that derive from these and other cases on the point can be simply stated. The imposition of a period of disqualification following revocation is not a step to be taken routinely, but nor is it a step to be shirked if the circumstances render disqualification necessary in pursuit of the objectives of the operator licensing system. Although no additional feature is required over and above the grounds leading up to revocation, an operator is entitled to know why the circumstances of the case are such as to make a period of disqualification necessary.

Commercial expediency, including operating more vehicles than authorised, viewed against the poor background of regulatory compliance makes a compelling case for disqualification. It is an aggravating feature that Mr Lee continued to operate beyond the Licence authorisation even when he knew the Operator was coming to a Public Inquiry at a date to be notified. Mr Lee did so even after the Transport Manager said it must stop. Further, there was a significant and serious failure to manage any aspect of its transport operation over a sustained period. This happened despite already attending a Public Inquiry in 2011 and 2013. This strikes at the heart of road and public safety, and fair competition within a highly competitive industry. The level playing field is essential to maintain standards for all. Accordingly, I have reached the decision set out in paragraph 3 above.

I have not disqualified the company of Mrs Lee as a director. This leaves open a small window to apply again with an external Transport Manager. However, the hurdles to meet are set out in this decision and I strongly recommend legal advice is taken before any future application is sent to Leeds.

Miss Sarah Bell

Traffic Commissioner

Written decision: 30 October 2020