Decision

Written decision for Elvi Ebanks (OC1092002)

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 Elvi Ebanks is revoked with effect from 0001 hours on 16 September 2019, pursuant to Sections 26(1)(c)(i) and (f) and 27(1)(a) and (b) of the Goods Vehicles (Licensing of Operators) Act 1995 (“the 1995 Act”).

Elvi Ebanks is disqualified for 12 months, with effect from 16 September 2019 until 16 September 2020, 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.

Elvi Ebanks 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, with immediate effect and for an indefinite period of time, from acting as a transport manager on any operator’s licence.

2. Background

2.1 Operator details

Elvi Ebanks holds a standard national goods vehicle operator’s licence (OD1092002) for five vehicles and one trailer. He is also the nominated transport manager on the licence. There are three vehicles in possession. The licence was granted in January 2010, with Mr Ebanks agreeing to three undertakings:

1. that vehicles would be given roller brake tests every three months;

2. that vehicles would be given a thorough pre-MOT inspection;

3. that there would be a compliance audit every six months.

After satisfactory audits had been received, undertaking iii) above was removed from the licence in 2012.

2.2 DVSA investigation

In June 2019 I received a report from DVSA traffic examiner Paul Matthews. He had visited the operator’s premises in March 2019 and found that:

1. there were gaps of more than the stated six weeks between some of the maintenance inspections;

2. there were no records of any kind of brake test. Indeed there was no place on the inspection sheet to record any brake test results;

3. many inspection sheets failed to record the vehicle being signed off as roadworthy;

4. the undertaking on roller brake tests was not being respected: there were no records of any such tests being carried out, apart from the tests at MOT;

5. Mr Ebanks had failed to notify a conviction in March 2018 for the serious offences of inflicting grievous bodily harm without intent and possessing an offensive weapon in a public place;

6. Mr Ebanks had failed to respond to the PG13F&G shortcomings report handed to him on 21 March 2019.

3. Public inquiry

3.1 Call to public inquiry

Concerned by these reports, I decided to call Mr Ebanks to a public inquiry, both in his capacity as operator and transport manager. The call-up letter was sent on 2 July 2019, citing Sections 26(1)(b), (c)(i), (ii) and (iii), (ca), (e), (f) and (h) and 27(1)(a) and (b) of the 1995 Act as well as Article 4.1(a) of Regulation EC 1071/2009.

3.2 Holding of public inquiry

The inquiry was held in Birmingham on 15 August 2019. Present were Elvi Ebanks and DVSA vehicle examiner Paul Matthews.

During the inquiry it emerged that:

1. the operator had lacked financial standing right up to 1 August 2019 (two weeks before the inquiry), when an injection of xxxxxxx had been made. Mr Ebanks said that this had come from the sale of a property. Prior to that, the operator had had financial standing only for one vehicle rather than the five for which it had a licence;

2. Mr Ebanks had not notified me of his convictions for grievous bodily harm and possession of an offensive weapon in March 2018 because he had feared he might lose his licence if he did so. He accepted that he had not been able to exercise his transport manager duties whilst in prison for eight months and that although he had appointed a driver to supervise matters in his absence, that driver was not a qualified transport manager;

3. the largest gap (of around six months) between PMIs recorded in Mr Matthews’ report occurred when the vehicle was off-road. An examination of the vehicle’s recorded mileages tended to support this, although that examination revealed significant errors in the odometer readings recorded by the maintainer. There was a further 12 week gap between inspections for vehicle B247 JAB between 5 March and 1 June 2019: Mr Ebanks thought that he had presented the vehicle for a pre-MOT inspection in late April. There was evidence that the MOT had been done, but no evidence of any pre-MOT inspection;

4. Mr Ebanks had failed to respond to VE Matthews’ notice of shortcomings as he had been “all over the place” and there was “too much going on”. He stated that he was not the best person to deal with emails and paperwork;

5. Mr Ebanks had never carried out the undertaking, given on grant of the licence in 2010, to have roller brake tests carried out every three months. He accepted that the paperwork showed that he had agreed to the undertaking and that the undertaking was clearly on his licence, but he had not read it very carefully and had not realised that he had made the commitment. Two of the three vehicles had now been given rolling road brake tests since VE Matthews’ visit in March (though I noted that the tests had been in late June, three months after that visit);

6. although Mr Ebanks kept a copy of the driving licence of his other driver, that copy showed that the licence had expired on 8 August 2019. Mr Ebanks did not know whether the driver had renewed his licence. Mr Ebanks accepted that he had no idea how to check the current status of a driver’s licence: he had assumed that checking the licence card was sufficient;

7. despite Mr Ebanks having operated a digital tachograph vehicle since February 2018, he had never acquired the equipment with which to download data from driver cards and the vehicle unit. Such downloads had thus never been made. He had thought that making a daily print-out from the vehicle unit was sufficient;

8. the analogue charts for the other two vehicles operated by Mr Ebanks showed numerous centrefield and mode switch errors, with drivers consistently omitting to record details of end location and end date, leaving the chart in on “other work” overnight and failing to record their walk-round check. Mr Ebanks accepted that he had not analysed the charts very closely, although he had checked them to see if drivers were exceeding their hours.

3.3 Concluding remarks

Mr Ebanks said that he had been faced with a somewhat chaotic situation when leaving prison in late 2018. He had had to focus on carrying on the business and retaining his contract customers rather than dealing with paperwork. As a transport manager he knew what he had to do, although accepted that he had not been doing it. He had scaled down the business and now basically operated only two vehicles, keeping one as a reserve when other vehicles were in for maintenance. He was now employing only one other driver on a part time basis. He was trying to do everything right and hoped he could be given another chance. Revocation of the licence would put him out of business.

4. Findings

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

1. the operator has failed to fulfil the undertaking, given when the licence was granted in 2010, that vehicles would be given roller brake tests every three months. Apart from the tests at MOT, no brake tests were carried out until June 2019 (Section 26(1)(f) of the 1995 Act refers). This in itself was a slow response to the shortcomings report produced by VE Matthews in March 2019.

2. the operator has failed to fulfil its undertaking to ensure that drivers’ hours and tachograph rules are observed (Section 26(1)(f) refers). Despite having had a digital vehicle in possession for 18 months, Mr Ebanks has failed to acquire the wherewithal to perform any downloads of data. He cannot possibly know whether any infringements of drivers’ rules are taking place. He has failed to correct obvious centrefield and mode switch errors on the analogue charts, suggesting strongly to me that he does not examine them either;

3. the operator has failed to fulfil its undertaking to ensure the lawful operation of vehicles. A driver’s C category entitlement has expired – a fact which came as complete news to Mr Ebanks, despite the fact that he has a copy of this licence - but he continues to drive the vehicle;

4. the operator has failed to fulfil its undertaking to notify convictions within 28 days. Mr Ebanks’ convictions for inflicting grievous bodily harm without intent and for possessing an offensive weapon in a public place were not notified to me;

5. the operator lacked professional competence for eight months from March 2018, when Mr Ebanks was in prison and unable to exercise the responsibilities of a transport manager. He took no measures to appoint a suitable replacement nor to ask for a period of grace. The business was run during this period entirely unsupervised either by operator or transport manager;

6. the operator lacks the required financial standing (section 27(1)(a) refers). Financial standing is an ongoing requirement and must be demonstrated continuously over time. Mr Ebanks had nowhere near the required funds until 1 August 2019 when a large deposit was made after the sale of some property.

5. Conclusions

I considered Mr Ebanks’s statement that he was trying to do everything right. However, I did not see much solid evidence to back up this statement. Most of the shortcomings identified in Mr Matthews’ report still existed: the maintainer was still working from the same inadequate inspection sheet and failing consistently to enter the missing details noted by Mr Matthews. Mr Ebanks had not spoken to the maintainer about the shortcomings in the report. While two of the three vehicles had been given a roller brake test three months after Mr Matthews’ visit, I regard that as an insufficiently dynamic response to Mr Matthews’ finding that the roller brake test undertaking was being completely ignored. Nothing has still been done to monitor drivers’ hours correctly or acquire the necessary equipment to perform digital downloads.

I conducted a balancing exercise. On the negative side of the equation were the above findings. On the positive side were the following:

1. the fact that recent safety inspections have been conducted at the specified six week intervals (with the one exception noted above);

2. roller brake tests have now been commenced (for two vehicles out of the three);

3. the business has been downsized to make it more manageable;

4. Mr Ebanks has I feel been honest at the inquiry about his faults and actions.

In my judgement however, the positive factors above are heavily outweighed by the negative. Had I been informed by April 2018 as I should have been that Mr Ebanks was in prison for a serious criminal offence and that no arrangements had been made for a qualified transport manager to take over responsibility in the meantime, I should certainly have contemplated suspending or revoking the licence. Mr Ebanks’ failure to notify me was, as he has stated at the inquiry today, a deliberate act as he indeed feared that, were he to notify, his licence would be revoked. The result was that the business continued during his eight month period of imprisonment entirely unsupervised by any qualified person and was run under the nominal supervision of a driver in – as we have seen at the inquiry – a highly non-compliant manner.

Because of Mr Ebanks’ deliberate failure to tell me of his conviction, his willingness to allow his operation to continue unsupervised and because he manifestly has almost no idea of the responsibilities of a modern day transport manager, I conclude that his good repute is lost (Section 27(1)(a) and (b) refers).

I have also asked myself the Priority Freight question of how likely it is that the operator will comply in the future. Because Mr Ebanks has shown that, when push comes to shove, he is prepared to put the interests of his business above the need to comply with the law, I do not consider it likely. A negative answer to the Priority Freight question would tend to suggest a positive answer to the Bryan Haulage question: does the operator deserve to go out of business? Because he deliberately kept his business operating without adequate supervision during his term in prison, because for nine years he failed to carry out the roller brake tests he promised he would do and because the operation remains non-compliant in so many areas, I am afraid that he does.

6. Decisions

6.1 Operator licence

In the light of the above, I have decided to revoke the licence, and am doing so with effect from 0001 hours on 16 September 2019. The revocation is pursuant to Section 26(1)(c)(i) and (f) and Section 27(1)(a) and (b) of the 1995 Act.

6.2 Disqualification – operator

For the reasons outlined in paragraphs 8 to 13 above, and having performed the same balancing act described therein, I conclude that Elvi Ebanks deserves to be disqualified under Section 28 from holding a licence in the future. In deciding upon the length of the 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). I have determined upon a disqualification of 12 months as being proportionate and appropriate. If he wishes to apply to operate in the future, he should first attend an operator licence management course and find an experienced transport manager to work with (irrespective of whether he applies for a standard or restricted licence).

6.3 Disqualification – transport manager

Having concluded that Mr Ebanks’ 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. Given his failure to comply on the wide range of issues listed above, and his evident and serious lack of knowledge of many of the functions and responsibilities of a transport manager, I am disqualifying him for an indefinite period of time. If he wishes to act as a transport manager again, he must first retake and pass the transport manager CPC exam and appear before a traffic commissioner to re-establish his repute.

Nicholas Denton

Traffic Commissioner

15 August 2019