Decision

Written decision for Romans Automotive Group Limited (OF2023924) and Camelia Ion – former transport manager

Published 26 October 2020

In the Eastern Traffic Area.

Traffic Commissioner’s written decision.

1. Background

Romans Automotive Group Ltd holds a Standard International Goods Vehicle Operator’s Licence authorising 3 vehicles and 3 trailers. The Directors are named Ferhat Anus, Sahin Anus and Kenan Seyar. The licence commenced on 21 June 2019, with Mrs Camelia Ion as the authorised Transport Manager. Yesterday I was informed that Ferhat Anus is now known as Ferhat Su. This changed two months ago and I was not notified.

There was one Operating Centre, at Unit 16 Ozdil House, River Way, Harlow CM20 2DR. Authorisation to use Horseshoe House, London Road, Harlow, CM17 9LH was granted prior to the Public Inquiry. There is one declared contractor showing on the licensing record: TMH Commercial Vehicles Ltd, undertaking Preventative Maintenance Inspections of vehicles and trailers at 8 weekly intervals.

The operator has now nominated Tony Bacon to act as Transport Manager. He acted as Transport Manager on OK1116213 for approximately 6 months to 29 May 2020.

There were no other matters recorded against this operator beyond the matters outlined below.

2. Hearing

The operator was put on notice of my concerns in a letter dated 18 February 2020 (page 84). The operator responded on 25 February 2020, by requesting a Public Inquiry (page 86). Due to the pandemic, a hearing could not be scheduled earlier. The Public Inquiry was listed for today, 3 September 2020, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was present in the form of Sahin Anus, Director, represented by Eliot Willis, a solicitor, of NA Legal Transport Solutions. Mrs Ion was represented by Ms Carolyn Evans, solicitor, of CE Transport Law.

Sahin Anus is described as general manager making day to day decisions, dealing with the day to day running of the business. His main duties involve overseeing company finances, undertaking business negotiations including contract tendering, overseeing employment and staffing matters, operational management, fleet management, Operator Licence matters and other regulatory affairs. However, it is Mr Sayar who is the lead recovery operator/supervisor and driver and workshop manager. His main duties are said to involve driving trucks, overseeing the work of other drivers working for the company, managing and undertaking in-house repairs and servicing of recovery trucks owned by the company and those of customers. He chose not to attend the Public Inquiry.

The decision was held in abeyance to allow the operator opportunity to submit actuarial evidence as to the potential impact of any direction.

3. Issues

The public inquiry was called for me to consider whether there were grounds for to intervene in respect of this licence and specifically by reference to the following sections of the Goods Vehicle (Licensing of Operators) Act 1995:

• 26(1)(c)(iii) – prohibitions
• 26(1)(ca) – fixed penalties
• 26(1)(e) – whether statements have been fulfilled, specifically that vehicles in scope would be properly specified on the licence
• 26(1)(f) – undertakings (specifically whether vehicles have been kept fit and serviceable, that records would be kept for at least 15 months and made available on request, and that drivers would report any defects in writing)
• 26(1)(h) – material change with regards to finance
• 27(1)(a) – a supplementary letter alerted the operator to consideration of repute and financial standing
• 28 – disqualification of directors and operator to be considered

The former Transport Manager, Mrs Camelia Ion, was also required to attend the Inquiry in order that her repute might also be considered. I granted a Period of Grace to 14 September 2020.

In addition to the original application to increase authority from 3 to 7 vehicles, the Office of the Traffic Commissioner received application to add an Operating Centre at Horseshoe House, Harlow, CM17 9LH and to appoint Tony Bacon to act as Transport Manager. In the case of the application, whether the proposed Transport Manager can exercise continuous and effective management; whether facilities are sufficient for maintaining vehicles in a fit and serviceable condition, whether the proposed Operating Centre is available and suitable for the purpose and sufficient for all vehicles. Those matters were to be considered by reference to section 13A(2), Article 4, 13C(4), (5), (6). I subsequently agreed the appointment of Mr Bacon and the change in Operating Centre.

The Operator was made the subject of directions dated 16 June 2020 to produce invoices and proof of payment for their former transport manager, Mrs Carmelia Ion covering the 12 months prior to June 2020, to be lodged by 1 July 2020. The operator failed to comply with those directions. It also failed to meet the extended deadline of 3 of August 2020.

Maintenance and financial records have been requested from the Operator as part of the Call Up Letter sent on 3 August 2020. Submissions were received from the operator, under cover of a letter dated 27 August 2020. They refer to negotiations to secure an overdraft facility with evidence yet to be produced. I was referred to an email referring to a Loan agreement with Barclays Bank (operator’s bundle page 70). The operator failed to comply with the Directions. The statement and productions of Mrs Ion were only received on the Bank Holiday, earlier this week. Further documentation was received from both parties on the day before the hearing. The financial evidence was only produced in acceptable format on the day of the Public Inquiry.

4. Summary of Evidence

DVSA undertook a maintenance investigation as a result of the operator’s application to increase authorisation from 3 to 7 vehicles. That investigation was commenced by the Vehicle Examiner, John Hudson, on 2 January 2020 (page 59). At the time the operator had failed the single annual test where a vehicle had been presented. During the inspection, a prohibition was issued to vehicle SF14ZHH as a winch cable was insecure and likely to fall from the vehicle.

Mr Hudson recorded the following concerns (page 53):

• regarding the standard of management exercised by the Transport Manager;
• absence of brake performance tests for all listed vehicles;
• forward planning;
• weaknesses in the driver defect reporting system with inconsistent evidence of walk round checks and driver detectable defects appearing on preventative maintenance inspections;
• incomplete records and no evidence of rectification/endorsement;
• annual test performance.

JL15 LAR was also issued with a prohibition notice on 2 August 2019, due to fuel leakage. The operator later claimed that one of the vehicles was not in use and the other was awaiting repair. The other notice, issued at annual test, was for a vehicle which had been the subject of a safety recall but had not been taken for repair by the previous owner. Mrs Ion states that this occurred when servicing was being undertaken by Mehmet Asik. There is some suggestion that he claimed to have checked the vehicle and that there was no fuel leak. I was unaware of Mr Asik’s appointment.

Mr Hudson received a joint response from the Director, Sahin Anus, and Transport Manager, Camelia Ion. The VE’s findings were apparently accepted. The response referred to an indicator light fault but not the winch cable on SF14ZHH. The operator undertook to have quarterly brake tests and referred to a toolbox talk and training provided to drivers, with an increase in Mrs Ion’s working hours to 9 per week. Reference was also made to a change in maintenance provider. Reference was also made to three vehicles, which appeared to be out of scope.

When the level of my concerns was conveyed to the operator, the email was opened by Mrs Ion, who forwarded the letter to White Stones School of Transport with the following instruction “Please note there are outstanding invoices which supposed to be paid in January also I’ll shortly send the current invoice. If no payment will be made then I’m afraid I’ll have to cease my services”

The operator was given opportunity in a letter dated 27 March 2020 to explain what remedial action had been taken. In responses given over the 14th, 15th and 17th April 2020, the operator claimed that it had received “wrong guidance” from the Transport Manager who had now been removed from the licence. The Operator requested a Period of Grace whilst an application for a new Transport Manager was made. In the meantime, it was stated that the Operator was taking advice from a transport consultant, Tony Bacon. A summary of additional changes was provided, including changes to Driver Walk-Round procedures and PMIs being undertaken by the new provider (TMH Commercials) rather than in-house. An explanation was offered for the vehicle faults found by the Vehicle Examiner, and a copy of the wall planner. In evidence it emerged that the Director was aware of the electronic planner but was unable to access it in the absence of Mrs Ion. He was unable to provide a satisfactory explanation as to why, knowing of the Transport Manager’s limited availability, he was unable to access this system. His answer suggested that he was still trying to manage through the paper version.

I read Mrs Ion’s undated and unsigned statement in advance of the hearing. That was subsequently updated. She refers to her resignation on 14 April 2020. She obtained the transport manager qualification in November 2018 and was appointed on this licence in 2019 on a monthly payment of £500 per month rising to £800 per calendar month from December 2019. This was based on attendance at the operating centre for four hours per week. There was no formal contract. She confirms that Sahin Anus managed the administration and that Kenan Seyar was responsible for the driver and maintenance. He appointed a Mehmet Asik when he went away. The operator claims that Ferhat Su met with Mrs Ion on a few occasions. That Director has chosen not to attend the Public Inquiry. I summarise Mrs Ion’s duties as follows:

• engaging with drivers, I have seen her list of questions, in addition to answering email and telephone queries. She refers to the difficulty in meeting the drivers but that she would drive out to meet them to discuss infringements.
• drafting a contract of employment (although the operator relied on Peninsula consultancy),
• preparing driver declarations of other work,
• preparing driver licence and health forms for consent to perform driver licence checks,
• downloading driver cards and vehicle units,
• infringements interviews with follow up education/training, using Tachotech software, and Nova Data reported the infringement emails, with 3 drivers to manage: Kenan Seyar, his cousin (Mr Tikici) and one employed external driver
• involvement in disciplinary processes,
• monthly checks of driver licences,
• collecting PMI forms and updating the forward planner. It was difficult to obtain paperwork from Kenan Seyar. Mrs Ion advised the use of Hales Commercials (TMH) leading to an agreement with them on 25 July 2019. Safety related defects would be repaired/replaced by TMH. There was a continuing issue about obtaining records for other rectification by Kenan Seyar.

Mrs Ion and Sahin Anus prepared the response to the Vehicle Examiner. She states that she was only told of his inspection of SF14 ZHH after the visit. It was awaiting repair but the Directors had failed to heed her advice to place a VOR board. In its response, the operator said that it was unsighted on the need for a VOR system until Mr Hudson visited. I was told that the 07 plate vehicle was off-road from the start of the year. Mrs Ion indicated surprise in her statement and evidence that Mr Hudson expressed concern about the management of the operation. That appears inconsistent with the increase to 9 hours per week, following the visit. The operator asserts that Mrs Ion was notified of the visit and has produced a screen shot of a WhatsApp message at 8:55am, which she responded to at 14:19 that day.

I found it difficult to accept Mrs Ion’s claim that it was difficult for her to ensure that drivers were conducting an effective walk-round check, when that was her job. I accept that this will not be possible from simply looking at a weekly tick sheet. She identified that drivers were failing to sign off any rectification work and raised the incomplete DDRs on a number of occasions with the Directors. I saw a text message from 19 December 2019. In evidence it emerged that this message was sent to a driver but apparently mirrored communications with the operator. The Director had no recollection of any such exchange. After the DVSA visit the Directors agreed to purchase Apex software. In evidence I was told that the Apex system was already in use for the customer to communicate its instructions. The operator considered its use as a reporting app but considered the logging on to be too cumbersome. I am less clear to what degree Mrs Ion implemented gate checks to effect driver reporting. The operator initially denied that they were ever carried out. I am also unclear about what steps she took to ensure that operation of other vehicles fell within the exemptions from operator licensing. However, I also noted with concern that vehicles SF14 ZHH and FN64 0ZW had been used prior to a first use check and in excess of the declared PMI intervals and during the lock-down period. The Director attempted to claim that these activities were exempt but the operations were evident from the driver defect reports, which had been prepared.

Mrs Ion gives a very different impression of her departure from that initially given by the operator. I do not appear to have been notified that her sister-in-law was carrying out CPC duties during Mrs Ion’s maternity leave in January 2020. She replied to correspondence from my office to request this hearing and visited for a further four weeks until the operator indicated in mid-March that it was closing its operation. She was apparently advised not to return until notified but had not been paid since December. Her statement indicates that she had not attended for a fortnight or so when the letter of 27 March 2020 arrived. She asked the Directors to settle the outstanding invoices but by the beginning of April they no longer returned her calls.

She was finally paid on 14 April 2020 but was unaware of the content of the letter sent to my office on that date. I note her email of the same date. That fails to communicate any of the difficulties to which she now refers but confirms that she was unaware of the Director’s communication. On her own admission, this was misleading. It was only in July 2020 that she sought to correct the impression. She recounts how she was permitted to attend the Operating Centre on 15 August 2020 in preparation for the hearing but she was not allowed copy of any documents. That is denied by the operator. The operator also claims that she tendered her resignation by WhatsApp message on 14 April 2020. In evidence it was suggested that she continued to communicate with the operator long after that date regarding the operation. That appears to be inconsistent with her correspondence with my office. I am satisfied that the more likely version is that put forward by Mrs Ion, that she tendered her resignation but agreed to stay named on the licence until a replacement was found. I was only told of the unpaid invoices after that date, which would have called the genuine link into question. None of the correspondence from either party conveyed the correct impression.

The letter of 14 April 2020 claimed that the Director was ignorant of the operator licence requirements and relied solely on Mrs Ion, who he believed to be a competent person. The response on 17 April 2020 included:

• photographs of the forward planners for 2020 and 2021,
• Preventative Maintenance Inspection sheets for vehicles SF14ZHH and JL15LAR dated 15 February 2020;
• Roller Brake Test results for SF14ZHH dated 10 January 2020 (locked), CN07CKJ dated 11 January 2020 and JL15LAR dated 7 January 2020;
• a defect report, a duplicate job card, the damage history for JL15LAR, with copies of the safety recall sheets.

The operator claims to have striven to explain the issues with the previous TM. The Vehicle Examiner accepted that his assessment was based mainly on what he had been told by the Director. He nevertheless recorded her activities as mostly satisfactory. The full extent of his concerns was not apparently put to Mrs Ion. That said I do not accept Ms Evans’ suggestion that she met the statutory duty. From the records and evidence summarised above I do not consider that the driver defect reporting and compliance amounted to effective and continuous management. In the course of the hearing I drew attention to inspections carried out by the other Director Kenan Seyar, even after the Examiner’s visit. They disclose a long list of driver detectable defects. Most tellingly, the form was counter-signed by the Director, Mr Anus, who should therefore have been on notice of this non-compliance. Neither he nor Mrs Ion should have permitted this and particularly following the DVSA intervention. My observation of the more recent driver reports is that drivers including Mr Seyar and his cousin, Mr Tikici, continue not to record rectification work.

In evidence the Director appeared to draw back, at least in strength, from the blame attributed to Mrs Ion. The operator accepts that responsibility delegated to the previous Transport Manager ought to have been more closely overseen. Mrs Ion indicates that she has learned lessons from this process including the need to ensure that her advice is followed. I can attach little weight to her comments regarding Mr Hudson’s notification of attendance. He and I were entitled to infer that the statutory duty was met and that the operator was compliant. A transport manager cannot claim that they have made “every effort to establish compliance” when advice has not been followed. The statutory duty refers to management not just the provision of advice. I noted the actions taken but by her own admission she was alive to the minimum brake performance required. That guidance dates from November 2018, long before her attendance at the New Operator Awareness Seminar in October 2019. She told me that the Directors would not listen to her and yet there appears to be some doubt in her mind about the action she should have taken. I have seen evidence of her attendance as a TM CPC refresher course on 20 August 2020.

In representations I was told that the operator and Mr Bacon have discussed how to deal with issues and to develop new systems: I have now granted the application to use Horseshoe House, London Road, Harlow, CM17 9LH. I am asked to take encouragement from the review of maintenance arrangements with TMH Commercial Ltd. I am referred to a forward planner in the operator’s bundle, which also refers to some out of scope vehicles. The Preventative Maintenance Inspections will involve a laden brake test. The Director could not recall Mrs Ion having advised on the minimum requirement for laden brake testing, following her return from the new operator seminar. The Director appeared more concerned about the strength of Mrs Ion’s advice than the requirement for them to be fit to meet the licence obligations which they signed in the application.

I was referred to licence checks and the issue of a driver handbook. I was less clear about how drivers are monitored and refresher training delivered. I noted that the contract on the operator’s bundle referred to a commitment of 25 hours, whilst Mr Bacon’s letter of 14 August 2020 refers to 8-12 hours per week. What is really of concern is whether the statutory duty will be met. Mr Bacon will only attend daily in the first 6 months of his appointment but he indicates that he will contact my office when he reaches that position. He also confirmed that he will devote 25 hours per week to improving the operation.

5. Determination

On the basis of the evidence summarised above I am satisfied to the civil standard of proof that I can make adverse findings under sections 26(1)(c)(iii), (ca), (e) and (f).

I have attempted to record the remedial steps now taken. Even the current Transport Manager acknowledged that those shortcomings were unacceptable. I take account of the appointment of Tony Bacon, which I approved as per the letter of 14 August 2020 from the Office of the Traffic Commissioner. I am referred to a contract in the operator’s bundle. That genuine link must be maintained so that he exercises effective and continuous management of the transport operation overseen by the Directors. I compare and contrast the brief summary at paragraph 23 of the written submissions with the fuller description of duties at paragraph 54 of Statutory Document No. 3 on Transport Managers. Those are the duties which Mr Bacon must discharge.

I acknowledge that steps have been taken and proposed systems put in place. It remains to be seen if they will be effective. When I apply the test suggested by the Tribunal in 2009/225 Priority Freight, namely how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime? I keep returning to a key question which is whether this will be permitted and supported by the Directors.

I am unimpressed by claims that this was a new operator and the Directors did not know the legal requirements. The Directors were content to sign up to obtain the benefit of an operator’s licence and in doing so they accepted the responsibility for ensuring compliance. The repeated attempts to put that responsibility onto Mrs Ion does this operator very little credit. There was ample guidance, some issued in the name of the Senior Traffic Commissioner. By way of example, I refer to paragraph 40 of Statutory Document No. 3 on Transport Managers: The Upper Tribunal reinforced in the appeal of 2014/024 LA & Z Leonida t/a ETS: “… it does not matter whether an operator’s licence is held by an owner operator, a partnership or a limited company because in each case the person or persons responsible for managing the business bear the ultimate responsibility for ensuring that the road transport aspect of the business operates in compliance with the regulatory regime. That means that they cannot plead ignorance or put the blame on the transport manager because they are required to have sufficient knowledge of the regulatory regime to ensure compliance in general and the proper performance of the transport manager’s duties in particular”. The Tribunal has dismissed an appellant’s belief that responsibility for maintenance failings sat with the persons to whom she had handed over responsibility. They confirmed that ultimately “as the proprietor of the business the responsibility for ensuring that properly maintained vehicles were used for the purposes of that business, rested with her.”

I accept Mrs Ion’s point that only one vehicle failed its annual test and the reference to Mr Seyar’s period of inspecting the vehicle. Both parties appear to take credit for moving the maintenance to TMH. The Director acknowledged Mrs Ion’s involvement in this decision during his evidence. Neither appeared to be as keen to take responsibility for the operator reverting to Mr Seyar which occurred after the Vehicle Examiner had attended and given advice. They will both recall my observations and concern at the standard of that inspection. Mr Anus cannot claim that the operator followed guidance and advice as much as physically and mentally possible. The duties on the operator and Transport Manager are not mutually exclusive. Both operator and Transport Manager have a role in ensuring compliance for driver reporting, driver infringements, for training etc. Repeated shortcomings are a matter for both. If the Transport Manager did not arrange toolbox talks or take other action, why did the Directors permit this? Mrs Ion has provided me with evidence that at least two Directors had received professional driver training before these events.

I have referred to Statutory Document No. 3 and paragraph 54 above. Mrs Ion would do well to refer to it. I am satisfied that even on her own description she did not exercise effective and continuous management. As paragraph 25 of Statutory Document No. 3 on Transport Managers explains:

If a transport manager finds them-self overridden by the operator or their agent to the point at which the transport manager no longer has the requisite continuous and effective responsibility, the transport manager must first notify the operator in writing and then, if the matter is not resolved, is expected to take appropriate action (2003/258 J Cowan). In certain cases this may even include resignation, rather than remain nominated and attempt to carry on their duties when being expressly prevented from doing so by their employer.

Not only did she not discharge the statutory duty, the evidence suggests that she was content for her name to remain associated with the licence whilst the operator found a replacement. That prevented me from considering whether the licence should continue and whether a Period of Grace was then required. The circumstances outlined above have tarnished her repute and raised questions over her ability to meet the statutory duty. I do not find it proportionate to disqualify her but she receives the strongest of warnings.

I am told that this experience has been a salutary one for the operator. Mr Anus has now completed a one-day OLAT course with Logistics UK (formerly the Freight Transport Association) on 25 August 2020. It offers the following undertakings by way of additional assurance:

• to arrange 6-monthly Full Audits by a recognised trade association, such as the FTA, or RHA. I noted that the operator had recently joined the RHA.

• to have laden Rolling-road brake tests at every safety inspection.

• to arrange for drivers to receive CPC courses that are specific to the Company’s operational requirements. I was not told what those might be.

Mr Ellis set out the operator’s intentions and its changed mind-set. It is unacceptable that the shortcomings identified by DVSA were permitted to exist in the first place. As the Upper Tribunal recently remarked in 2019/066 Mullanes:

Where a breach of a regulatory requirement stems from a lack of knowledge of such a regulatory requirement, then it seems to us that simply saying a regulated operator or individual can learn from such an incident of non-compliance is not really an answer. As to the point concerning complexity, we would accept that, speaking generally, the regulatory system is not without features which some persons may find, in some respects, difficult to understand. But the point here (and again this reasoning is implicit from what the TC had to say) is that a regulated operator or individual has to be able to grasp the nature and demands of the regulatory system in order that a regulator can have confidence that such an operator or individual will, in future, be compliant. It is difficult to be confident in an ability to comply on the part of a person who does not always understand what is required in order to be compliant.

There can be no doubt that the operator’s repute is tarnished by the events above.

The third undertaking should have been implemented anyway. The laden roller brake testing should also have been employed but for the reasons set out above, it is necessary to accept that undertaking. On the basis of those future actions, I am asked to allow the licence to continue. I adopt the undertaking for an audit to check those commitments as further action is pending. For those reasons I remain to be satisfied that the requirements of 13C(4) can be met for an increased authority of 7 vehicles when that has not proved to be the case for the existing authority of 3 vehicles. The application therefore fails on that basis.

I quote from a recent appeal case: 2019/025 John Stuart Strachan t/a Strachan Haulage: “one of the aims of the regime is deterrence, both for the appellant and for operators as a whole, who might be tempted to flout the system”. In fairness to other operators there can be no repeat and the Directors must understand their responsibilities going forward. On the basis of the above and in particular I have noted that shortcomings continued after the VE’s visit, a simple refusal of the application would not appear to offer sufficient deterrence.

I therefore sought to understand the impact of intervention. I took account of the operator’s current position. In June 2019, the operator entered a contract with Copart UK Limited to transport second and salvage vehicles to designated addresses. That work accounts for most of the current income. The operator stated that it has been trying to develop its workshop to repair and build second-hand recovery trucks for the public but this is still under development. The representations refer to a future structural change to separate different business activities but that has yet to occur.

Mr Anus asserted that any reduction in authority would imperil the business. This was not supported by evidence. I posed the question as to what might happen if a vehicle were out of action or a driver was ill for a period. Mr Anus suggested that there was no scope for any prolonged reduction in operation. I allowed until close on 7 September to submit evidence in support. Mr Ellis provided me with a further statement from Mr Anus. I have already taken that into account in accepting that it may not have had time to demonstrate all the requirement remediation. I was more interested to read the actual contract with the main customer. Mr Anus referred to clause 4, which details the consequences if the operator fails to discharge its instructions. However, I could find no reference to the number of vehicles required. As clause 2 makes clear, the arrange is to “collect and deliver vehicles on behalf of …on a non-exclusive, as-needed basis”. I accept that this may cause inconvenience and that it may impact on the business relationship but not to the degree claimed in evidence by Mr Anus. The point of deterrent action is to have an impact that will encourage future compliance.

The operator’s licence will be curtailed by one vehicle from 23:45 on 15 September 2020 for a continuous period of 14 days. It has until that time to nominate one of the vehicles which is currently specified, which will be the subject of a direction preventing its operation during that period.

RT/TC/9/9/20