Decision

Written decision for Whitelock Plant Limited (OB1043127)

Published 8 October 2020

In the North Eastern Traffic Area

Redacted decision of the Deputy Traffic Commissioner for the North East of England.

In the matter of the Goods Vehicles (Licensing of Operators) Act 1995 (The Act):

• Whitelock Plant Limited (OB1043127)
• Transport Manager Maxwell Stocks
• Transport Manager Amreet Chouhan

And in the matter of The Road Traffic Act 1988 (the RTA):

Drivers of Whitelock Plant Limited:

• Luke Jones
• Robert Danvers
• Kris Kirk
• Jack Nutter
• Marc Nizinskyj
• Javid Northin Public Inquiry held at Leeds on 28 January 2020.

1. Decision

On findings made in accordance with Section 26(1)(c) (ii) and (iii) and under 26(1)(f), I direct that an undertaking be added to the licence of Whitelock Plant Limited that all authorised vehicles shall have a roller brake test on laden vehicles conducted once per month. The results will be recorded and retained for at least 2 years.

On findings made in accordance with Schedule 3 of the Act, I find that the repute of the transport manager Maxwell Stocks is not lost, but is tarnished.

On findings made in accordance with Schedule 3 of the Act, I find that the repute of the transport manager Amreet Chouhan is not lost.

On findings made in accordance with sections 110-122 of the RTA I make the following directions:

• Luke Jones: suspension of LGV licence 20 weeks with effect from 1 March 2020

• Robert Danvers: suspension of LGV licence 20 weeks with effect from 1 March 2020

• Kris Kirk: suspension of LGV licence 20 weeks with effect from 1 March 2020

• Jack Nutter: suspension of LGV licence 2 weeks with effect from 1 March 2020

• Marc Nizinskyj: revocation of LGV licence and disqualification of 12 months from holding an LGV licence with effect from 1 March 2020

• Javid Northin: revocation of LGV licence and disqualification of 12 months from holding an LGV licence with effect from 1 March 2020

2. Background

Whitelock Plant Limited (OB1043127) (‘’Whitelocks’’) is presently the holder of a standard national goods vehicle operator’s licence for 15 vehicles and 4 trailers, the original licence having been granted on 24 February 2005. The sole director of the operator company is John Whitelock.

The main business of Whitelocks is plant hire, earthworks and reclamation. It has three operating centres, two in Skipton and one in Striton.

2.1 Current regulatory history

Whitelocks has relevant regulatory history: a public inquiry was convened on 8 December 2015 as a result of an unsatisfactory maintenance investigation, prohibition and fixed penalty notices which resulted in curtailment of the licence to 9 vehicles and 4 trailers indefinitely or until evidence was received of roller brake testing installed, brake testing of vehicles and positive systems audit by RHA.

A further public inquiry was convened on 11 January 2017 as a result of an unsatisfactory maintenance investigation, prohibition and fixed penalty notices which was adjourned to allow time to implement the recommendations of the RHA audit and demonstrate likely compliance. The public inquiry was relisted for 11 June 2018. In the meantime, an application to have an interim licence for an additional 3 vehicles had been refused. At the hearing on 11 June 2018 the curtailment was lifted and authority for 12 vehicles and 4 trailers was restored, a formal warning issued, a variation application to increase the vehicles to 15 granted and additional conditions and undertakings attached to the licence. No adverse findings were made in respect of the repute or professional competence of Maxwell Stocks the then transport manager.

2.2 The call to public inquiry

The public inquiry was called for:

• Consideration of regulatory action against the licence of Whitelocks because of a number of prohibition notices issued in 2018 and 2019 since the last public inquiry
• Consideration of regulatory action against the licence of Whitelocks because of an unsatisfactory Traffic Examiner’s report regarding drivers’ hours triggered by a driver being stopped when not the holder of a CPC (redacted).
• Consideration of regulatory action following an unsatisfactory maintenance inspection on 15 April 2019;
• Consideration of regulatory action against former transport manager Maxwell Stocks;
• Consideration of regulatory action against transport manager Amreet Chouhan
• The public inquiry was conjoined with driver conduct hearings to consider regulatory action against the vocational licences held by a number of drivers currently or previously employed by Whitelocks.

The concerns were such that the repute, financial standing and professional competence of Whitelocks were brought into question. The hearing was also to consider whether the repute and professional competence of Maxwell Stocks and Amreet Chouhan as former and current transport manager had been lost.

The concerns about drivers’ hours infringements and convictions recorded against some drivers and consideration of prosecution of others were such that their fitness to hold a licence was brought into question.

3. The public inquiry

The public inquiry took place at Leeds on 28 January 2020. John Whitelock, sole director, was present on behalf of Whitelocks and was represented by Mr John Dyne, solicitor.

Also present were the former and current transport managers of Whitelocks, Maxwell Stocks and Amreet Chouhan who were also represented by Mr Dyne.

Also present were six of Whitelocks current or former drivers subject of interview about drivers’ hours: Jack Nutter; Luke Jones; Robert Danvers; Kris Kirk; Marc Nizinskyj and Javid Northin,

The inquiry was assisted by the attendance of Mr Minter, Traffic Examiner and Mr White, Vehicle Examiner.

At the end of the all day hearing I indicated that I would take some time to consider all the evidence and would issue a written decision.

As the public inquiry was a matter of record, I will not repeat all the evidence, but will highlight important aspects of it below.

4. The evidence

The written evidence was provided in three briefs for the hearing: the first for Whitelocks and both transport managers which ran to 289 pages, the second for Maxwell Stocks which ran to 180 pages and the third for the drivers which was not paginated but contained a section on each driver together with relevant records for each driver with regard to drivers’ hours.

Other written evidence available was a brief prepared by Mr Dyne on behalf of his clients which contained representations of 5 pages, a documents’ bundle of 183 pages and 5 pages of spreadsheets.

The inquiry fell into two parts: the driver conduct hearing followed by the inquiry into consideration of regulatory action against Whitelocks and the transport managers. Mr Whitelock and Mr Stocks gave evidence during both parts of the inquiry and Mr Whitelock, Mr Stocks and Ms Chouhan gave evidence in the second part of the inquiry. Mr Minter gave evidence in the first part of the inquiry with regard to his investigation into drivers’ hours and Mr White gave evidence in the second part of the inquiry with regard to his maintenance investigation.

4.1 Driver conduct

Mr Jack Nutter: his evidence was consistent with that given in his interview to Mr Minter, namely that he was unaware that he needed a CPC acting on advice given for a previous role and made arrangements to obtain the qualification as soon as he became aware it was necessary. No check was made on his qualification by the operator. His driving had been mainly operating plant on site. He continues to work for Whitelocks, doing some plant work and some driving.

Mr Kris Kirk: Mr Minter’s analysis of records in his report showed that Mr Kirk drove a 32000kg vehicle without a card inserted on 5 occasions between 11 June 2018 and 22 August 2018. Records also showed that Mr Kirk had no driver card between 28 November 2017 when his previous card expired and 27 December 2018 when he was issued with a renewal card number. Mr Kirk had been sent a renewal reminder on 1 September 2017.When interviewed by Mr Minter on 26 March 2018, Mr Kirk he said that he had worked for Whitelocks for about 4 and a half years from 2014 and his explanation about the records was ’’I would have lost my card’’ , he could not remember if he reported the loss and that he made records on a weekly sheet. When asked if he had been spoken to by Whitelocks regarding the use of the vehicles without a card, he replied ‘’no comment’’ and said that he did not know who the transport manager was at the time.

Mr (redacted) At the hearing, Mr Kirk said that the failures were down to his ‘’personal lazy attitude’’ for which he apologised. He said that he did not know for how long he had been driving without using a card. He had left Whitelocks in early 2019 for reasons unrelated to the failure to use a card. He had been asked about his card on occasions by Johnnie Rhodes, who was a manager at Whitelocks. It was questioning by Ms Chouhan that prompted him to apply to renew his card. His routine work now does not involve use of the card, but it is needed when he covers for absences. Suspension or revocation would make his job more difficult.

Mr Northin: Mr Minter’s analysis of records also showed that Mr Northin drove a 32000kg vehicle without inserting a card on 8 occasions between 25 July 2018 and 24 September 2018. The DVLA data base shows that Mr Northin’s current card was despatched on 5 September 2019 which was a renewal of his card valid from 22 August 2017 to 4 September 2018. Therefore, Mr Northin would have had a valid card at the time. In interview by Mr Minter on 26 March 2019, Mr Northin said that he had left his card at home on 5 September 2018 and had filled in a log book for that day. When he was asked about 24 September 2018, he said that the card kept ejecting and that he reported a fault. When asked about other occasions he said that he had left his card in another truck and had to apply for another card. He said that his employer was aware that he did not have a card.

(redacted).

At the hearing Mr Northin said that he had been abroad for 3 months and had left his card in another vehicle. He said that he had told his employer and that he had agreed with ‘’John’’ who he referred to as the transport manager to fill in a log book. Mr Northin left Whitelocks in August 2019 for reasons unconnected with the issue and is currently unemployed and looking for work.

Mr Nizinskyj: Mr Minter’s analysis of the records shows that on nine occasions between 4 May 2018 and 5 September 2018 Mr Nizinskyj made a false record by removing his driver’s card to mask the fact that no, or insufficient, breaks had been taken. (redacted). When interviewed by Mr Minter, he said the following: on the first occasion there was a problem with the tachograph head, but that on the other occasions he was acting under the instruction of John Whitelock or ‘’Johnny’’; one of the occasions was a journey to central London and when he told Johnny it could not be done in a day he was told to drive all day without a card; other drivers were doing this ‘’everyone of them’’; that cards were kept in the office to be given out; that drivers loaned cards to each other; that Max Stocks had an argument with Johnny Rhodes and John Whitelock as he wanted to ‘’change it and do it right’’; that John Whitelock had asked to see him before interview to tell him what to say.

At the hearing Mr Nizinskyj repeated that he pulled his card under instruction in order to do jobs in time as otherwise he would be doing too many driving hours. (redacted) of carrying out instructions that he knew were ‘’not right’’ and illegal. He clarified that ‘’Johnny’’ is Johnny Rhodes who he described as ‘’the transport manager on the plant side’’ and that on 2 or 3 occasions the instructions had come from John Whitelock, and on some occasions from Johnny Rhodes. He said that the impact of losing his licence would be significant as it would lead him to lose his job, house and custody of his children.

He questioned Mr Minter asking him to confirm that there were no issues on his record with the previous and subsequent employer. Mr Minter said that he had no knowledge of the subsequent employer but that a Traffic Examiner’s report conducted by a colleague of the previous employer revealed no issues over a two year period.

Mr Nizinskyj was cross examined by Mr Dyne. He rejected the suggestion that it is possible to drive to central London and back in a single shift. He accepted that the vehicle had a sleeping cabin but said that he was ‘’not a night man’’. He denied that he left before being sacked for failing to operate the card correctly. He said that other drivers were in the same position but he was the only one caught.

Mr Danvers and Mr Jones: Mr Minter’s analysis showed that on 5 occasions in August 2018 the cards of each driver were inserted into slot 1 in the vehicle unit in quick succession and that walk round check sheets were produced despite the being a short period, as little as less than 2 minutes, between the swap of cards. The pattern was consistent with the borrowing of the second drivers card by the first driver to mask insufficient breaks and the suspicion was reinforced by the production of walk around checks at the point of swap which would not be usual in a double manning situation, and by information to Mr Minter from the current Transport Manager (TM) that Mr Jones was working in the quarry on the days in question and so could not have been driving. Mr Danvers when interviewed said that the card use was due to double manning and in the latter part of the interview he made no comment. When asked how he could do a walk around check and fill in a form to record it in under 2 minutes he makes no comment. Mr Jones also maintained it was due to double manning. He said that on each swap of drivers he did a walk around check when asked how long that takes he said 15 minutes but puts the minimum time at 5 minutes. Both make no comment about the handwriting on the driver defect report forms appearing to be identical.

At the hearing Mr Danvers and Mr Jones maintained the account that they were double manning the vehicle. Mr Danvers added that he did not realise the correct way to use the cards when double manning but that Mr Stocks showed him after Mr Minter’s visit. He explained the walk around checks as due to a full check being done at the start of the day, but a very quick check done at changeover of drivers. He said that action against his licence would result in unemployment. He is still employed by Whitelocks.

At the hearing Mr Jones said: that he was new to driving at the time and did not know the correct way to use the cards for double manning; Mr Stocks had shown him and Mr Danvers in October 2018; that on changeover the machine would put up a request for a walk around check so a further quick check would be done; he is still employed by Whitelocks but not as a driver except for relief work so any action against his licence would have minimal impact.

Mr Minter was asked to add any views in light of the evidence of Mr Danvers and Mr Jones. He said that they had changed their versions having told him in interview that they had conducted full walk around checks at changeover and this served to reinforce his suspicions. He said that consideration had been given to prosecuting both drivers but it was felt that the evidence did not reach the criminal standard.

With regard to the drivers’ hours infringements as outlined above both Mr Stocks and Mr Whitelock gave evidence which can be summarised as follows:

Mr Stocks: he was transport manager between 2015 – 2018; Johnny Rhodes was more ‘’hands on ‘’ with the drivers and may have given instructions but monitoring of drivers hours was Mr Stocks responsibility; tachograph records were downloaded weekly by Johnny; Mr Nizinskyj was flagged up for pulling his card but there were no formal documented disciplinary procedures; Mr Nutter was not taken on as a driver so this is why no CPC check was done; Mr Northin was an ‘’ad hoc ‘’ driver and Mr Stocks was unaware he had mislaid his card- his instructions would have been to fill in a log book if his card was missing; Mr Kirk did not drive very often; Mr Danvers and Mr Jones did double man on occasions- they were retrained, there was no need for a second walk round check, as opposed to a cursory check when swapping drivers, but there was nothing wrong with using a DDR sheet for a second check; he was aware, through his own monitoring, of the issues before Mr Minter drew them to his attention; he examined the download data bi-monthly; Mr Nizinskyj had ample time to do his jobs- a return run to London could usually be done in a day, depending on where in London, but if not both vehicles had sleep cabs; he was not aware of any complaints by Mr Nizinskyj; he denied any argument with Mr Whitelock about instructions given to Mr Nizinskyj; he denied knowledge of any drivers driving without cards or lending their cards to other drivers; he was aware of all the issues but picked up on them after they happened due to the retrospective nature of download analysis; he left Whitelocks on good terms.

Mr Whitelock: he denied the allegations of Mr Nizinskyj or that he had contacted him prior to his interview with Mr Minter; he cannot understand why he would say it – was surprise and distressed - there had been no disagreement with him; he would never give such instructions- if clients found out it would impact adversely on the company’s reputation; he was aware of meetings about Mr Nizinskyj’s difficulties with use of the card but not present at them and then he left in any event; he had no cross words with Mr Stocks; there would be no need to mask driving excess hours- most journeys were local and only occasionally to London

During Mr Whitelocks evidence Mr Minter intervened to say that in fairness to the operator he should make it clear that the pattern of use of the card by Mr Nizinskyj is not compatible with incompetence but with a good knowledge of drivers’ hours requirements and consistent with an attempt to shorten the working day by not taking breaks, rather than a driver running out of time as there were ample drivers hours available on each occasion.

4.2 Whitelocks

Mr Minter’s findings triggered an unannounced visit to Whitelocks from Mr White, Vehicle Examiner on 15 April 2019. He inspected 3 vehicles, one with no obvious defects, one where advice was given regarding minor tyre damage and one where a delayed prohibition was issued for a damaged seat belt.

The PG13 F & G reports the shortcomings as immediate prohibitions issued on 5 September 2018, 2 November 2018 and 13 February 2019, delayed prohibition on 11 April 2019 and the delayed prohibition issued on the date of the visit, as well as an inspection record showing a damaged tyre with no remedial work. Mr White’s overall conclusion is that since the last maintenance investigation dated 19 January 2018 there has been a 66% prohibition rate, that the notices cover similar faults to those reported in the previous maintenance investigation, namely worn tyre, inoperative brake, damaged tyre and insecure wheel nuts, leading to the conclusion that Whitelocks is not complying with the maintenance undertakings given at the time of application for the operator licence.

A detailed response was provided by the current transport manager, Ms Chouhan setting out action taken to minimise potential of such issues reoccurring, including an amendment to the driver defect report to cover seatbelts, the introduction of a tyre check record sheet, written reminders to drivers, and the outcome of the internal investigation into the prohibition on 13 February 2019.

In his evidence at the hearing, on the positive side, Mr White said: the responses to his report from Ms Chouhan were comprehensive; the MOT history was improving; the documentation and systems are good; on the negative side: the driver in the internal investigation told the transport manager that he checked between the tyres at every walk around check this contradicted what he told Mr White which was that he did not check between the tyres; overall he said that the outcome of roadside checks is at odds with the systems in place.

When questioned by Mr Dyne, after giving his opinion on common defects with Scania vehicles, and on the limitations of Whitelocks introduction of tapping hammers for drivers as depending on the capability of the drivers, and asked what more could Whitelocks do, Mr White said more tyre checks, quality assurance of driver checks, monitoring expected defects in between maintenance inspections and external quality assurance.

Mr Whitelock gave evidence which can be summarised as follows: Whitelocks has made a big investment in wash plant equipment; the impact of revocation/suspension of licence would be devastating; the business is subject to continual audit by big clients such as Yorkshire Water; both the type of work and the type of vehicles have contributed to the issues identified in maintenance investigations- the replacement of the Scania vehicles with Volvos by March 2020 will resolve vehicle issues; other measures will also help such as introducing tapping hammers and bristle brushes for drivers; he is confident that with the extra training and equipment provided his drivers can identify loose spigot washers, for example, one was identified 2 months ago where a nut was seized so he thinks the new equipment worth having.

4.3 Transport manager Mr Stocks

Mr Stocks evidence can be summarised as follows: Whitelocks business in quarry work is challenging for vehicle maintenance; he achieved continual improvement and was the driving force behind initiatives, namely, new vehicles, own roller brake testing facility, job sheets, more maintenance staff; current employer knows of the hearing and trades with Whitelocks; reason for leaving: career progression; re the prohibitions on his watch: 19 January 2018: tyre down to driver, item no 6 same as no 1 , the light cleared itself; re spigot washers: introduced tap hammers, updated torque procedure, looks bad but failings not significant bar tyre; in current role do not encounter same issues due to using different vehicles- Volvos not Scanias; issues were considered by Deputy Traffic Commissioner in 2017; amazed to be at public inquiry- continual improvement at Whitelocks 2015 – 2018 and continuing under current transport manager; re drivers: aware of issues but monitoring can only pick them up afterwards, some /all of them addressed, not Whitelocks regular drivers – holiday cover.

4.4 Transport manager Ms Chouhan

Ms Chouhan gave evidence which can be summarised as follows: since taking over as TM she has built on the systems established by Mr Stocks; RHA audits have been helpful in suggestions for improvement; new systems to improve driver checks- eg testing them by planting defective bulbs, incentives for no infringements; new safety procedures; new induction and continual training; every wagon equipped with a handbook; full time health and safety officer who assists with drivers’ hours monitoring; improved monitoring of drivers hours; more focus on compliance eg haulage manager booked on OLAT March 2020 to increase compliance monitoring capacity; another RHA audit booked for May 2020.

Mr White in commenting on the evidence of Mr Stocks and Ms Chouhan said: regarding the 6 defects, acknowledged 1 contributed to another but still leaves 5; systems outlined by Ms Chouhan gave some increased confidence regarding the likelihood of future compliance; overall, the new systems together with brake tests, new vehicles and the ‘’fresh set of eyes’’ of a new transport manager mean that he is more reassured than in May last year.

5. Submissions

Mr Dyne provided both written and oral submissions made on behalf of both former and current transport manages and the operator. These can be summarised as follows: * Whitelocks has invested significantly in new plant and vehicles in 2019/20- (redacted) in a new wash plant and investing in new vehicles which should reduce issues with brake performance and eradicate some of the maintenance problems. * The expanding business and nature of the contracts underway makes an operator licence essential. Subcontractors are too unreliable. * MOT and prohibition history is improving. Detailed responses have been provided to prohibitions and maintenance investigation. * Driver conduct- Mr Nizinskyj’s allegations are false-he manipulated his employer who assumed he did not know what he was doing. Two other drivers said that Mr Stocks showed them how to correctly operate driver cards for double manning; Whitelocks accepts it should have looked more closely at drivers, but Mr Stocks had picked up on all issues before the (redacted); the issues were of short duration and primarily the responsibility of the drivers; only one of the (redacted) drivers still works for Whitelocks and that accounts for not reporting the convictions. * Ms Chouhan has built upon Mr Stock’s systems. * Caselaw-Priority Freight and Bryan Haulage – the operator is likely to be compliant and should not be put out of business. It offers an additional undertaking to have monthly roller brake testing on laden vehicles

6. Legal framework

The case has been referred to me under the provisions of section 26 of the Act. Section 26 sets out grounds on which an operator licence may be revoked, suspended or curtailed. Section 26(4) provides that where the existence of any of the grounds specified in section 26 (1) is brough to the notice of a Traffic Commissioner, the commissioner shall decide whether or not to give a direction under section 26. The grounds set out in the letter calling the operator to public inquiry include: section 26(1)(c) (i) and (ii)-convictions; 26(1) (c) (iii) the issue of prohibitions; 26(1)(e)- a statement of expectation not fulfilled; 26(1) ( f)- an undertaking recorded in the licence not fulfilled.

With regard to Mr Stocks and Ms Chouhan as transport managers, referral is made under Schedule 3 of the Act and I have to decide whether they continue to meet the requirements to be of good repute and professionally competent. If either or both of them do not, then it is mandatory to order disqualification from holding the role of transport manager either indefinitely or for a specified period.

With regard to the drivers, referral is made under the Road Traffic Act 1988. Section 115 of this Act provides the power to revoke or suspend a Large Goods Vehicle (LGV) licence if the driver’s conduct is such as to make him unfit to hold a licence. Section 117 (1) outlines the requirement to disqualify a driver indefinitely or for a determined period following revocation of a licence.

7. Consideration and Findings of fact

All findings are on the balance of probabilities.

In considering the evidence, I accept the evidence of the Traffic Examiner Mr Minter and of the Vehicle Examiner Mr White as each was operating in a professional capacity, it was consistent with documentary evidence and evidence from the operator and was not challenged on its facts, albeit that Mr White’s opinion that his findings amounted to the operator not complying with the statement of intent was not accepted.

With regard to the drivers, none give evidence which is directly contrary to that of the operator with the exception of Mr Nizinskyj. It is necessary to choose between his evidence and that of Mr Whitelock, since their versions of the facts are irreconcilable. In essence, Mr Nizinskyj says that he deliberately pulled his drivers card on the instruction of Mr Whitelock in order to avoid infringing drivers’ hours rules. Mr Whitelock denies it on the grounds that he would not risk the reputation of the company and also that it would in any event be unnecessary as most journeys can be done within the permitted hours and if not the vehicles are equipped with sleeping cabs. I bear in mind that there is a lot to lose for both Mr Whitelock and Mr Nizinskyj. When choosing between two totally contradictory versions of facts, it is helpful to look for independent evidence. This comes from Mr Minter whose analysis of Mr Nizinskyj’s usage of his card was the basis for his evidence that the usage was consistent with knowledge of the systems and manipulation in order to achieve a shorter working day, not with a shortage of drivers’ hours. Therefore, I must conclude that Mr Nizinskyj did not act under instruction, but to shorten his working day.

With regard to the operator, I found that the evidence of Mr Whitelock, Mr Stocks and Ms. Chouhan was on the whole consistent and open, although Mr Stocks appeared to minimise his responsibility for drivers’ hours issues.

With regard to the drivers other than Mr Nizinskyj, I found as follows: Mr Nutter appeared to be genuine in his statement that he was unaware that he needed a CPC card. This was consistent with him being taken on to do work not requiring a CPC and no checks being carried out by Whitelocks; Mr Kirk was more open at the hearing than he had been when interviewed- he had suggested in interview that he had misplaced his card on a number of occasions, but at the hearing accepted that it had expired and he had simply not renewed it; I found Mr Northin’s evidence vague and inconsistent- in interview he gave a variety of accounts of where his card was but at the hearing said he had left it in another employer’s truck before going abroad for 3 months; I also found the evidence of Mr Danvers to be inconsistent as he modified his account of walk around checks at the hearing; I found Mr Jones’ account to be inconsistent for the same reason.

I make the following findings based on the oral and written evidence with regard to Whitelocks:

• The grounds under section 26(1) (c) (ii) is made out due to the convictions of the drivers
• The ground under section 26(1) (c) (iii) is made out due to the prohibition notices issued
• The ground under section 26(1)(f) is made out because the issue of prohibitions is evidence of a failure to fulfil the standard licence undertaking to keep vehicles in fit and serviceable condition and to observe the rules on drivers’ hours and tachographs
• Sufficient availability of finances has been demonstrated.

I make the following findings with regard to the drivers:

• Mr Nizinskyj deliberately pulled his card on a number of occasions in order to shorten his working day; in reaching this decision I rely on the analysis of Mr Minter;
• Mr Nutter drove on numerous occasions without a CPC card without being aware of needing one; I rely on Mr Minter’s analysis and Mr Nutter’s own account;
• Mr Kirk drove on numerous occasions in the knowledge that his driver card had expired and made no attempt to renew it for a considerable period; I rely on Mr Minter’s analysis and Mr Kirk’s account at the hearing;
• Mr Northin drove on numerous occasions without a card and without reporting it as lost; I rely on Mr Minter’s analysis, and on DVSA records;
• Mr Danvers borrowed Mr Jones card and used it to mask drivers’ hours infringements; in reaching this decision I rely on the analysis of Mr Minter, the accounts in interview and inconsistencies in evidence given at the hearing;
• Mr Jones allowed his card to be used to mask drivers’ hours infringements; in reaching this decision I rely on the analysis of Mr Minter, the accounts in interview and inconsistencies in evidence given at the hearing; ## Decision

In reaching conclusions, I have had regard to the Senior Traffic Commissioner’s Statutory Document no 6 Drivers Conduct and also of Statutory Document No. 10: Principles of Decision-making and the Concept of Proportionality and, in particular, Annex 3. I have taken account of guidance from the Upper Tribunal, including in the case of 2009/225 Priority Freight.

The Statutory Guidance Documents provide starting points for consideration by Traffic Commissioners in considering regulatory action. Whilst each case must be dealt with on its own merits, action taken including licence revocation and disqualification from holding or obtaining operator’s licences is reserved for categories of case falling into the definition as warranting “severe” action being taken. I have taken account of the guidance that conduct which amounts to ‘’persistent operator licence failures with inadequate response or previous public inquiry history’’ merits a starting point of ‘’severe to serious’’ regulatory action. On the negative side of the balance, I have taken account of the range and number of drivers hours issues; the public inquiry history of this operator, the prohibition history and MOT history and that in the opinion of Mr White the statement of intent had not been fulfilled when he carried out his visit in April 2019. On the positive side of the balance, I have accepted the submission that the more serious prohibitions were scrutinised at the previous public inquiry, as well as the work in tightening procedures, and the investment in equipment, additional staff and training since then.

With regard to Whitelocks -having given the operator such credit as I can and then asking myself at this stage the so-called Priority Freight question, I conclude I am satisfied that this operator has made strenuous efforts to put procedures in place to ensure future compliance, and is intent on subjecting itself to further audit.This demonstrates that the operator is likely to be compliant in future. I am reassured by the operator’s evidence that new vehicles will eradicate the historical problems with loose spigot wheel nuts and brake issues. The operator has continued to have RHA audits and has one booked for May 2020. I am therefore satisfied that the additional undertaking offered to have roller brake testing on all authorised vehicles on a monthly basis is a proportionate way to deal with the concerns and that no further regulatory action is needed at this stage.

With regard to Mr Stocks, although there was evidence that he had laid the basis for improved systems, had been the ‘’driving force’’ behind new vehicles and equipment, the scale and range of drivers’ hours infringements suggest that he was not adequately managing drivers hours compliance. He suggested that he was aware of the issues, but there is no evidence that any disciplinary procedures were followed or that the issues were tackled promptly. He suggested that the drivers were not the regular drivers and were ‘’holiday cover’’ and yet Mr Minter’s analysis showed a large number of journeys over a sample period of a few months. Therefore, I find that his repute is tarnished due to the lack of management of drivers’ hours, but not lost due to the overall improvement in maintenance performance.

With regard to Ms Chouhan, the evidence is that she has provided comprehensive responses to the maintenance investigation, including the prohibitions that occurred before she took on the role of transport manager, that she has taken action in response to the failings identified, that her systems are not criticised by Mr White and that she has increased the confidence felt by Mr White in the likelihood of future compliance. Therefore, I find that her repute is not lost.

With regard to the drivers, applying the guidance in Statutory Document 6, the decision with regard to the LGV licence of each driver is as follows: :

Mr Nutter- the starting point for driving without the required qualification is four weeks suspension. I take into account that this was done on many occasions over a period of time, such a period that he had a responsibility to check the requirements of him, but also that I found him to be genuine in not knowing this to be required, that he was not required to produce anything to his employer and that he rectified the situation when it was brought to his attention, and so I reduce the suspension to two weeks.

Mr Nizinskyj- the starting point for deliberate pulling of the card is a 4 week suspension per offence up to 6 offences and revoke and disqualify for 12 months for more than 6 offences. (redacted) and my findings, I am driven to conclude that the starting point must be the minimum, and so I direct revocation of the licence and disqualification for 12 months from holding a licence with effect from 1 March 2020.

Mr Kirk – the starting point for deliberately driving without a tachograph is a 4 week suspension per offence up to 6 offences and revoke and disqualify for 12 months for more than 6 offences (redacted) and my findings, I am driven to conclude that the starting point must be the minimum and so I direct suspension of 20 weeks with effect from 1 March 2020.

Mr Northin – the starting point for deliberately driving without a tachograph is a 4 week suspension per offence up to 6 offences and revoke and disqualify for 12 months for more than 6 offences. (redacted) and my findings, I am driven to conclude that the starting point must be the minimum and so I direct revocation of the licence and disqualification for 12 months from holding a licence with effect from 1 March 2020.

Mr Danvers- although there was no criminal conviction, I have found on the balance of probabilities that there was the use of a drivers card belonging to another for which the starting point is a 4 week suspension per offence up to 6 offences and revoke and disqualify for 12 months for more than 6 offences. In view of the finding that this happened on at least 5 occasions, as well as finding that Mr Danvers has not been honest, I am driven to conclude that there should be a suspension of 20 weeks with effect from 1 March 2020.

Mr Jones - although there was no criminal conviction, I have found on the balance of probabilities that there was the permitting of the use of his drivers card to another for which I take the starting point as the same as for the use of a card belonging to another and for which the starting point is a 4 week suspension per offence up to 6 offences and revoke and disqualify for 12 months for more than 6 offences. In view of the finding that this happened on at least 5 occasions, as well as finding that Mr Jones has not been honest, I am driven to conclude that there should be a suspension of 20 weeks with effect from 1 March 2020.

Jayne Salt

Deputy Traffic Commissioner

10 February 2020