Decision for Andrew Frank Smith (OK2026814)
Written decision of the Deputy Traffic Commissioner in the South Eastern and Metropolitan area for Andrew Frank Smith
SOUTH EASTERN AND METROPOLITAN AREA
DECISION OF THE DEPUTY TRAFFIC COMMISSIONER
PUBLIC INQUIRY HEARD AT IVY HOUSE, IVY TERRACE, EASTBOURNE ON 24 NOVEMBER 2025
OK2026814 ANDREW FRANK SMITH
Findings
Exceeding the maximum number of vehicles prespecified on the licence which is an offence under Section 6(8) of the Goods Vehicles (Licensing of Operators) Act 1995.
Grounds to consider regulatory action as detailed in the call-up letter under Sections 26 (1) (c) of the Act – prohibitions issued Section 26 (1)(ca) – fixed penalty issued Section 26 (1) (e) – false statement made when obtaining licence and Section 26 (1) (f) – not honouring undertakings.
Decision
Variation to increase the maximum number of specified vehicles to two granted.
Licence curtailed to allow one vehicle to be specified from 00.01 hours on the 1 January 2026 until 00.01 hours on the 1 February 2026 (Details of vehicle to be removed from licence to be sent to the Office of the Traffic Commissioner (OTC) within 7 days of this order).
Driver Conduct
Andrew John Smith’s vocational entitlements to be suspended for 14 consecutive days during January 2026. Dates for suspension to be notified to the OTC within 7 days.
Background
The operator Andrew Frank Smith is the holder of a standard national licence authorising one vehicle granted on the 1 November 2019 Mr Smith is a sole trader and transport manager designated on the licence.
On 12 December 2024 a vehicle AS21 ADG was stopped by the DVSA and found to be overweight by 3.75% on axle 1 and 15.43% on the gross weight. Mr Smith was driving the vehicle and was found not to be using a tachograph card. The officer also noted that this vehicle was not authorised on the licence and there was no margin available as the licence authorisation was limited to one vehicle.
On the 12 December 2024 an application was made to increase the number of vehicles authorised on the licence to two. That application has yet to be determined.
As a follow up to the vehicle stop on the 12 December a Traffic Examiner visited the operator on the 18 March 2025 and identified compliance failings including a failure to produce infringement and missing mileage reports, no disciplinary procedure and driving licence checks being conducted on a yearly basis.
On the 6 May 2025 vehicle AS21 ADG was stopped whilst being operated by Mr Smith and drawing a trailer. The trailer was found to have one of the six wheels missing. The DVSA officer believed this to be a serious risk to road safety and issued a prohibition indicating a significant failure in the maintenance system.
A Desk Based Assessment followed on the 14 May 2025 and this was marked as unsatisfactory across a range of maintenance issues which are detailed in the report. A maintenance investigation also took place on the 22 August 2025 and this raised the marking to mostly satisfactory as is detailed in that report. A particular point was highlighted whereby it appeared a vehicle had failed an MOT test on three separate occasions and had been used between the failure date and the retest without an MOT certificate in force for that use.
A decision was made to call the operator to a public inquiry and in advance of the hearing directions were issued requiring the operator to produce evidence of maintenance and drivers’ hours management systems. The Vehicle Examiner aspects of the documentation was deemed as satisfactory with the Vehicle Examiner recording that there had been a marked improvement since his visit in August. The Traffic Examiner report was less positive identifying occasions when qualifying breaks were not taken after 4.5 hours driving, late production of downloads occurred and there was a lack of action in dealing with infringements, The conclusion was that the operator still has work to do to become a satisfactory operator.
The Public Inquiry
Mr Smith attended the public inquiry and was unrepresented. The DVSA officers attended via Microsoft Teams. At the outset I outlined the procedure to Mr Smith.
Evidence
Mr Smith gave details of his business which involved the collection and delivery of cars. He had started the business in 2019 and had initially acquired the 7.5 tonne vehicle authorised on the licence. A second 3.5. tonne vehicle had been acquired in 2021 and he had assumed up until the stop on the 12 December 2024 that the vehicle did not need to be included on the operator’s licence. Once he was told this was not the case he applied for a variation of the licence and had been wating since for the decision. He told me that he had been using the vehicle since that date on a regular basis. I asked him why he had used the vehicle knowing that it was not on the licence, and he said his business and financial wellbeing relied on the use of both vehicles. He drove the 3.5 tonne vehicle and his friend and employee Mr Brown drove the larger one.
Mr Smith accepted the evidence relating to the overload and said this was a result of the vehicle being carried being an electric vehicle which was heavier than a conventional vehicle. His tachograph was not working on that occasion, and he had been intending to take it in for repair. Changes have been made since the visits by the DVSA officers including training, change of maintenance provider, Mr Brown is now employed rather than self-employed and driving licence are checked more frequently. A disciplinary procedure is in place although he felt he needed more assistance to fully understanding the details. In relation to the 4.5-hour infringements identified by Traffic Examiner Page, he acknowledged that they had occurred and said he thought they would have been occasions when Mr Brown was on a journey back to the base and continued driving rather than taking a break. I pointed out to Mr Smith that this was a completely unacceptable practice and that as the operator he had responsibility for ensuring it did not happen. He accepted this and said he had issued a verbal warning but had not noted this anywhere. Driver cards were now being downloaded daily.
In relation to drawing the trailer with a wheel missing he said that he didn’t agree that stability of the trailer was an issue and hadn’t noticed any issues. When he was asked to pick up the trailer the wheel was already off because the brake was binding and he had thought the trailer was safe to use on the road. He accepted that he had used EX61 XML between the date it failed an MOT test and the retest on three consecutive years between 2022 and 2024.
In closing I confirmed that I had read the references submitted by Mr Smith and asked him to say how regulatory action including revocation would impact on his business. He said that revocation would end the business, suspension would be very difficult as both he and Mr Brown have financial responsibilities, and curtailment would also present a problem as both vehicles are used on five days each week.
In relation to his conduct as a driver in drawing the trailer on the road with a wheel missing I indicated that the circumstances had been fully discussed already. He said that he had held his HGV driving entitlement since 2019.
Findings and Decisions
In this case the operator has admitted that he has been exceeding the maximum number of vehicles prespecified on the licence which is an offence under Section 6(8) of the Goods Vehicles (Licensing of Operators) Act, 1995. I also find that there are grounds to consider directing that the licence is revoked, suspended or curtailed
as detailed in the call-up letter under Sections 26 (1) (c) of the Act – prohibitions issued -Section 26 (1)(ca) – fixed penalty issued -Section 26 (1) (e) – false statement made when obtaining licence and Section 26 (1) (f) – not honouring undertakings.
In this case the operator has admitted that he has been exceeding the maximum number of vehicles prespecified on the licence which is an offence under Section 6(8) of the Goods Vehicles (Licensing of Operators) Act, 1995. I also find that there are grounds to consider directing that the licence is revoked, suspended or curtailed
as detailed in the call-up letter under Sections 26 (1) (c) of the Act – prohibitions issued -Section 26 (1)(ca) – fixed penalty issued -Section 26 (1) (e) – false statement made when obtaining licence and Section 26 (1) (f) – not honouring undertakings.
On the positive side there has clearly been significant improvement in respect of the maintenance provision, Mr Smith has attended training which he said has increased his knowledge and understanding of what is required. He has supplied positive references from two of his customers and it is the first time regulatory action has been taken since the licence was granted. I also give him credit for his candour in answering the questions I put to him at the inquiry. Whilst his improvements on the driver management of compliance some have been noted since the initial visit are limited.
Having balanced the negative aspects of this case with the positives I find that it falls within the serious category as set out in Statutory Document 10 issued by the Senior Traffic Commissioner. I have considered the question suggested by the Upper Tribunal in 2009/225 Priority Freight – how likely is it that the operator will, in future, operate in compliance with the operator licensing regime? My answer isn’t an immediate “very likely” because Mr Smith has shown a tendency to act on occasions in a way that suits him and his business rather than what is lawful. This approach is evidenced by the fact that he used two vehicles for 11 months knowing he only had authority for one, used a vehicle without a valid MOT certificate and at first, appeared to condone his employee’s actions in driving beyond his permitted hours without a break.
Even though I have a degree of uncertainty in relation to future compliance I am, on balance prepared to allow Mr Smith to continue to operate at least for the moment. He should be in no doubt however, that he has come close to his licence being revoked and this should be a fact he remembers going forward.
Having decided not to revoke the licence I believe that regulatory action is required both to mark the seriousness of the case and to act as a tangible reminder to Mr Smith of the need to achieve compliance on an ongoing basis. As a pre cursor to that action I need to consider the variation application to increase the number of specified vehicles to two. Whilst normally approving an increase would be highly unlikely when adverse findings have been made, I recognise that this has been the business model and status quo of the operator since 2021 and if this is not regularised the impact may be more severe than intended.
I therefore allow the variation application to increase the number of specified vehicles to two which will take effect immediately, but I also order that the licence will be curtailed back to one vehicle from 00.01 hours on the 1 January 2026 until 00.01 hours on the 1 February 2026. The details of the vehicle not to be used during the period of the curtailment is to be sent to the Office of the Traffic Commissioner within 7 days of this order. I direct that photographic evidence showing the odometer reading for that vehicle is sent together with photographic evidence at the end of the period to prove that the vehicle has not been used during that period. Any differences in the readings need to be explained with evidence by the operator.
I request that DVSA Officers (Mr Page and Mr Ostridge if possible) undertake a follow up visit in 6-9 months to assess whether the promised improvements have been made and sustained. If significant failings are found, I anticipate Mr Smith will be called to a further inquiry.
Driver Conduct
As regards Mr Smith’s conduct as a driver in drawing the trailer when a wheel was missing, I find that as a professional driver he should have realised that it was unsafe to do so and order a period of suspension of his vocational entitlements for 14 consecutive days which he must serve in January 2026. The days he chooses to do so to be notified to the Office of the Traffic Commissioner within 7 days of this order.
John Baker
Deputy Traffic Commissioner
30 November 2025