Decision

Written decision for Edward Nelson (OD1111018)

Published 22 October 2020

In the West Midlands Traffic Area.

Redacted decision of the Traffic Commissioner for the West Midlands.

1. Decision

The standard national goods vehicle operator’s licence held by Edward Nelson is revoked with effect from 0001 hours on 20 October 2019, pursuant to Sections 26(1)(f) and 27(1)(a) of the Goods Vehicles (Licensing of Operators) Act 1995 (“the 1995 Act”).

Edward Nelson is disqualified for two years, from 20 October 2019 until 20 October 2021, from holding or obtaining any type of operator’s licence in any traffic area and from being the director of any company holding or obtaining such a licence, pursuant to Section 28 (1), (4) and (5) of the 1995 Act.

Brian Parker has lost his good repute as a transport manager, pursuant to schedule 3 paragraph 1 of the 1995 Act. Under paragraph 16(2) of that schedule, he is disqualified, for a period of three years until 20 September 2022, from acting as a transport manager on any operator’s licence.

2. Background

2.1 Operator details

Edward Nelson trading as E S Nelson Transport holds a standard national goods vehicle operator’s licence (OD1111018) for one vehicle and one trailer. The licence was granted in July 2012. The transport manager on the licence between December 2017 and April 2019 was Brian Parker. The transport manager prior to December 2017 was Simon Lampitt.

2.2 DVSA investigation

In August 2019 I received a report from DVSA traffic examiner James Phillips. He reported that: 1. Edward Nelson had been stopped at the roadside on 30 June 2018 driving vehicle DX53 HVD. The vehicle was not the one specified at the time on his licence;

1. Mr Nelson had been aggressive towards both the Highways England stopping officer and DVSA traffic examiner Tracy Love;

2. Mr Nelson had been asked to provide tachograph charts for the previous 28 days. Among the charts that he produced from within the 28 day period were charts in the name of A Nicholson. These charts should have been on the person of Mr Nicholson;

3. Mr Nelson subsequently produced eight further charts in his own name from the previous 28 day period to TE James Phillips when the latter visited his premises on 8 March 2019. These charts should have been produced to TE Love at the roadside stop the previous June;

4. Even with these extra charts, there remained 4628 km unaccounted for between 13 and 29 June 2018, a significant amount over a relatively short period of time;

5. In an interview under caution with TE Phillips on 25 June 2019, Mr Nelson was asked why he had not returned the disc of DX53 HDV when it had been removed from the licence on 2 January 2018. Mr Nelson had replied that he had not been “getting any help from his transport manager Simon Lampitt” [although Mr Lampitt had been replaced by Brian Parker by this time];

6. Mr Nelson stated that transport manager Brian Parker would not have been checking for missing mileage;

7. Edward Nelson did not have a contract with the nominated transport manager Brian Parker, nor had he had one with previous transport manager Simon Lampitt;

3. Public inquiry

3.1 Call to public inquiry

In the light of this report I decided to call the operator to a public inquiry. The call-up letter was sent on 6 August 2019, citing Sections 26(1)(c)(iii) and (f) and 27(1)(a) and (b) of the 1995 Act as well as Article 4.1(a) of Regulation EC 1071/2009. By letter of the same date Brian Parker was called in his capacity as transport manager to consider his repute.

In preparing for the inquiry I noted that Brian Parker had resigned as transport manager on 30 April 2019. Leeds had consequently sent a letter to Mr Nelson pointing out that he now lacked professional competence and asking about his intentions. On 29 May 2019 Mr Nelson had submitted a nomination form for a new transport manager, Andrew Johns. Mr Johns was also invited to the inquiry, not to consider his repute but so that I could question him on how he intended to exercise continuous and effective control of the transport activities of Mr Nelson’s business. On receipt of this letter, which detailed the DVSA report, Andrew Johns telephoned my office to say that he was withdrawing his application to be transport manager.

I also received, in advance of the inquiry, a submission dated 9 September from Pickerings Solicitors on behalf of previous transport manager Brian Parker. The submission stated that “Mr Parker has received no payment or remuneration from Mr Nelson and has not rendered any services as transport manager in return. In effect he was transport manager in name only and relied upon Mr Nelson to ensure that the provisions of his licence were correctly complied with.” In mitigation, it was claimed that Mr Parker had acted out of a combination of a feeling of obligation to a friend and intimidatory behaviour by Mr Nelson. Mr Parker now accepted that he had acted unwisely and wrongly.

3.2 Holding of public inquiry

The inquiry was held in Birmingham on 17 September 2019. Present was DVSA traffic examiner James Phillips, operator Edward Nelson, previous transport manager Brian Parker and new prospective transport manager Robert McFarland, whose TM1 nomination form had been received in Leeds on 3 September 2019. Mr Nelson was represented by Anton Balkitis, solicitor.

3.3 Evidence of Edward Nelson

Mr Nelson said that he had been on his way to his son’s birthday party on 30 June 2018 and had asked the Highways England stopping officer whether it couldn’t just wait. He also suffered from deafness which meant he talked more loudly than many: this might account for him appearing to be aggressive. He had not handed over the eight charts to TE Love because he had just wanted to get on to his son’s party. Some of Mr Nicholson’s charts had been in the vehicle so he had handed them over too. Mr Nicholson was a part-time driver: he also worked as a mechanic and on a farm. I asked whether all this other work was recorded and whether it was compatible with the rules relating to daily and weekly rest: Mr Nelson accepted that no record of Mr Nicholson’s other work was kept.

Mr Edwards said that he owned two or three vehicles to do up and sell but never ran more than one at any one time. He had told his transport manager Brian Parker to put DX53 HVD on the licence but he had failed to do this. He had not been running B19 EDS (the vehicle specified on the licence on the day of the stop) for several months prior to the stop.

He could not account for the missing 4628 km on the charts other than by supposing that they had been driven by Mr Nicholson: he had asked Mr Nicholson to hand over all his charts but that had not happened.

He had had no contract with transport manager Brian Parker: Mr Parker had refused his offer of money.

Neither had he had a contract with the previous transport manager Simon Lampitt, although he had paid him (in cash). Mr Lampitt had not been much help xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

3.4 Evidence of Brian Parker

Mr Parker said that the only action he had ever carried out as a transport manager was to remove vehicle DX53 HVD from the licence in January 2018 and replace it by B19 EDS. He had offered to meet TE Phillips in March 2019 but Mr Nelson had told him that he would sort matters out. He recognised that he should not have been a name-only transport manager, but he had thought that he was helping Mr Nelson out.

Mr Parker stated that he worked as an HGV driver and confirmed that that had been the case when he had completed the TM1 nomination form in 2017. I took him to that nomination form where he had described himself as a “plant manager” working 40 hours a week on Monday to Friday. If he had described himself as an HGV driver, which he should have done, the central licensing office in Leeds would at the very least probed further the compatibility of a full time HGV driving job with working as a transport manager at the weekend.

3.5 Evidence of TE James Phillips

Mr Phillips noted that Mr Nelson had told him that Mr Parker had been analysing tachograph charts in 2018 although he (Mr Parker) would not have been checking for missing mileage. This was disingenuous as Mr Nelson would have been aware that Mr Parker was not in reality performing anything of the role of a transport manager.

3.6 Summing up

Summing up, Mr Balkitis made the following points:

1. Mr Nelson had attracted no prohibitions from three encounters at the roadside;

2. he had been going through a stressful family time at the time of the stop in June 2018;

3. there was nothing from the tachograph charts to suggest serious breaches of the drivers’hours rules;

4. Mr Nelson was willing to undertake to go on an operator licence management course, and to join the RHA;

5. although there were significant shortcomings in the way which Mr Nelson had managed his licence, he was willing and had it in him to put it right.

At this point I adjourned the inquiry in order to prepare and issue a written decision.

3.7 Findings on the operator

In the light of the evidence, I make the following findings:

1. the operator has failed to fulfil his undertaking to ensure that drivers’ hours and tachograph rules are observed (Section 26(1)(f) of the 1995 Act refers). Mr Nelson’s tachograph chart keeping was clearly chaotic: he was not able to produce at the roadside his previous 28 days’ worth of charts, although he did produce some charts which should have been in the possession of another driver. There was a very large amount of missing mileage which has still not been accounted for. Either a driver drove without using a tachograph chart or Mr Nelson has simply failed to collect the necessary charts. Moreover, he failed to understand that driver Nicholson should be recording his extensive other work as a mechanic and farm hand and that this other work had a potential impact upon daily and weekly rest requirements;

2. Mr Nelson has failed to specify a vehicle on the licence, contrary to Section 5(6) of the 1995 Act;

3. The operator lacks the required professional competence (Section 27(1)(a) of the 1995 Act refers). There was no contract with either of the transport managers Simon Lampitt or Brian Parker. By his own admission Brian Parker did not in practice exercise any of the functions or responsibilities of a transport manager. The same appears to have been the case with Simon Lampitt the previous transport manager, who according to Mr Nelson failed to help him and was to be found most days in a bar. The prospective transport manager Andrew Johns withdrew his application before the inquiry was held. I find that in essence the licence has been without a properly functioning transport manager from its inception in 2012.

3.8 Findings on the ex-transport manager

Ex-transport manager Brian Parker, in signing an application form which confirmed that he had a contract with the operator when in reality no such contract existed, and in agreeing to place his name on the licence as the transport manager without then exercising the transport manager’s responsibilities, has enabled the operator to pass itself off as outwardly professionally competent, when the truth was otherwise. He also falsely described himself as a “Plant Manager” on the TM1 application form rather than as an HGV driver, which would have given rise to further inquiries. On the more positive side, he has at least now come clean about his lack of involvement with the licence. But I can reach no other finding in the light of his neglect of his duties and responsibilities than that he lacks the required good repute to be a transport manager.

4. Decisions

4.1 Operator licence

Having concluded that Edward Nelson lacks professional competence and that he has lacked it for the seven years of his licence, revocation of the licence is mandatory under Section 27(1)(a) of the 1995 Act. The lack of a transport manager has been apparent in Mr Nelson’s failure to specify vehicles in a timely manner, failure to keep tachograph charts properly, and failure to keep a record of drivers’ other work. Although the operator’s lack of prohibitions is a positive feature, it cannot outweigh the fact that Mr Nelson has run a standard licence without a functioning transport manager for such a long period of time. Given that he has shown in practice over such a long period of time that he is prepared to operate without the legally required transport manager, I have little confidence that he will comply in future. I am therefore revoking the licence.

4.2 Disqualification - director

For the reasons outlined above, I also conclude that Mr Nelson should be disqualified under Section 28 from holding a licence in the future. In deciding upon the length of his disqualification, I have taken account of paragraph 100 of the STC’s Statutory Guidance Document 10. This posits a starting point of between one and three years for a first public inquiry, which this is. In deciding on a disqualification period in the middle of this range (two years) I have taken account of the seriousness of operating without a transport manager, tempered by the fact that there is no evidence that his vehicle was operated in an unroadworthy condition during that time.

4.3 Disqualification – transport manager

Having concluded that Brian Parker’s good repute is lost I must also disqualify him under paragraph 16 of Schedule 3 to the 1995 Act from being a transport manager on any licence. It seems almost inconceivable that there are still, in 2019, transport managers who are prepared to put their names on a licence and then have no further involvement with the operation. The seriousness of this misconduct – knowingly giving an operator the outward appearance of professional competence when in fact it has no such thing – cannot be understated. I accept that Mr Parker did not do this for gain, so his disqualification period is less than it might otherwise have been. Nevertheless, I am disqualifying him from acting as a transport manager for the period of three years.

Nicholas Denton

Traffic Commissioner

20 September 2019