Decision

Decision for Alsoils+ Ltd

Published 4 August 2022

0.1 In the Western Traffic Area

1. Written Decision of the Traffic Commissioner

1.1 ALSOILS+ LTD OH1107566

1.2 JOHN EDWARD HUMPHREY – TRANSPORT MANAGER

2. BACKGROUND

Alsoils+ Ltd is the holder of a standard national goods vehicle operator’s licence granted in February 2012 authorising the use of three vehicles and one trailer from The Lambing Yard, Hambledon, Hampshire. Three, thirty-two tonne vehicles are shown as in possession. The directors on the licensing record are Stephen Paul Hill and Matthew David Hill.

On 13 December 2021, a variation application was created to request an increase in authority to six vehicles. This triggered a DVSA maintenance investigation which identified a number of concerns.

The variation application attracted representation from a local resident. That triggered a further DVSA visit. Whilst approaching the operating centre on that visit, the Examiner noted a 7.5 tonne vehicle carrying Alsoils livery, YG52PZM. When questioned about it, director Matthew Hill said that they had sold the vehicle and were not operating it. A keeper check showed the vehicle to be registered to “Steeden Developments Ltd”. No such company exists at Companies House but there is Steeden Property Development Limited which is not the holder of a goods vehicle operator’s licence and of which Steven Hill is the sole director and person with significant control.

The shortcomings in the maintenance investigation and the fourth vehicle being operated either by this operator or a linked entity caused me to call the operator and the variation application to public inquiry. John Edward Humphrey was called to consider his good repute as transport manager.

3. THE PUBLIC INQUIRY

Steven Hill and John Humphrey attended the hearing represented by Harry Bowyer, barrister, all in person. Matthew Hill attended via Teams link. Also present was transport consultant Andy Miles. A very helpful tabbed and paginated bundle had been provided well in advance for which I was grateful. It included a compliance audit from Mr Miles’ firm.

Proceedings were recorded and a transcript can be produced on request. I record here only the key points relevant to my findings and they are not necessarily in chronological order.

I noted that finances were fine both for the existing authority and the variation.

3.1 Opening Submissions

Mr Bowyer told me that there was a full admission of the use of the additional vehicle. It was now VOR. The length of illegal operation was in the region of six months. A further difficulty was that the director had not been as frank as he might have been to the DVSA officer when asked about the additional vehicle. The company had tried to regularise the matter through the variation application but the environmental representation had extended the application process.

The variation application was not being pursued. Steve Hill had run the 7.5 tonne truck, the transport manager had not sought to prevent that and Matthew Hill had sought to cover that up.

In the positive, the company had instructed Mr Miles to assist including with the environmental matters. The culture had completely changed. The operation was constrained by planning to fifteen movements a day and that was met even when the additional truck was taken in to account.

3.2 The evidence of Stephen Hill, Director

Mr Hill adopted his statement. Alsoils takes topsoil in from building sites, screens it, blends and resells. A lot of work had been done with Mr Miles. I was shown a well-populated compliance file. The fifteen movements a day was monitored by South Downs Council and the site was restricted to 7 am to 6 pm Monday to Friday and 7 am to 1 pm Saturday. The approach to the operating centre was a single-track road with one passing place. It was also used by a farm and a vineyard. They had never had any problems in the lane but there had been a problem with a driver leaving a truck in the middle of the green triangle at the lane’s end. His drivers were very courteous and there had never been any accidents.

Steeden Developments was the registered keeper of the 7.5 tonne YG52PZM. Steeden Developments was no longer trading and the vehicle had been used by Alsoils. The vehicle had been used when they were busy. It had previously been on the licence so had a disc. It was removed to allow another vehicle to be operated. Stephen Hill personally was responsible for the truck’s operation. He was ashamed by what had happened. He was not a person who got in trouble. The vehicle was now locked in a barn and not being used. He was aware that the increase would not be granted.

I asked about an apparent fifth vehicle that appeared on the maintenance records, RX63YMZ. I was told it had been bought to replace HS16RXA which was up for sale.

I asked Mr Hill whether he thought that the covering of 20,000 kms by YG52PZM was consistent with it just being used when they were busy. Mr Hill conceded the vehicle had been used a lot.

3.3 The evidence of John Humphrey

Mr Humphrey told me that he had passed his CPC in 2013 and undertaken a refresher course in 2021. He was transport manager on one other licence which had one vehicle in possession.

No brake testing had been undertaken. The maintenance provider had a brake tester but it would not print. They had been promised that it would be repaired for the following inspection but it had never happened. Vehicles were now brake tested just before the PMI. The other shortcomings on the inspection records hadn’t been noticed by him when checking the returned sheets. That had now changed and both he and Stephen Hill reviewed them together. There was now a VOR process.

Mr Humphrey now checks the torque of the wheel-nuts every two weeks and measures tyre tread. These checks are recorded. The documentation was now much better than when the Examiner had attended. The public inquiry process had “been a kick up the backside”.

He had been aware of the fourth truck. He mentioned it in passing to Stephen Hill but hadn’t conveyed the seriousness of it. He now regretted not having taken a harder line including writing to the TC if need be.

I asked Mr Humphrey about his day job. He told me that he had bought a lock-smithing franchise. He was a qualified driving instructor. During Covid, he had been forced temporarily back to driving. He visited the operator once a week for a couple of hours. The filing is done by Michaela in the office.

Drivers download the driver cards and either Mr Humphrey or Matthew Hill would upload them on to the system. He had not previously produced a missing mileage report. Now the policy was to download the trucks once a month and run the missing mileage report. I asked about 1017 missing km on V16TJT (not the correct registration). I was told that a driver had been taken on when the company was under pressure. He could not produce the relevant cards or a national insurance number and was told to make a printout which was legal for up to 15 days if a card is lost or stolen. Mr Humphrey accepted that he should not have let him drive without being able to check his entitlement. I asked about 53 missing km on a day in January. I was told that there were a number of missing mileage events of 20 to 30 kms that were unexplainable. It might have been a tachograph error. There was no tracking. They had not thought to use the cameras in the yard. The drivers were never up against the hours. Not recalibrating a tachograph following the removal of a cherished number plate was an oversight.

He had started as transport manager for LL Waste in January this year. It was a one-man operation, authority for three but only one in use. The operator had done a new operator seminar. Mr Humphrey made sure he had a forward planner with MOT dates, PMIs and brake tests. I asked Mr Humphrey when he planned routes; he didn’t. We had a discussion about the pro-active role required of a transport manager. Mr Humphrey seemed unaware of the expectations of external transport manager as set out in EU Regulation 1071/2009.

3.4 The evidence of Matthew Hill

Matthew Hill confirmed he was a director. His job was to manage the yard, produce the soil. When the Examiner asked about the 7.5 tonner, he panicked and just wanted to cover for his father. He understood the trouble it had put him in.

3.5 The evidence of Andy Miles

Mr Miles’ colleague John Cowdell first attended the operating centre on 28 April. Mr Miles attended to look at the environmental matters. He had taken the opportunity to see how much progress had been made. He was “pushing on an open door”. They were getting on with it. They were shocked when the seriousness of running the extra truck/s was explained to them. The golden nugget is Michaela. She had failed the TM exam once but had retained the knowledge. He had suggested that she take on a supervisory role.

3.6 Closing submissions

Mr Bowyer reminded me of the Bryan Haulage and Priority Freight questions.

In relation to Priority Freight, compliance had improved and the operator would be unlikely to bother me again.

The main issue was the use of the fourth vehicle; one director had used it, one had tried to hide it and the transport manager didn’t do anything to stop it. The company would still be viable with two trucks on a permanent basis. If it must be a revocation, the issue of disqualification would arise. I should step back from disqualification, especially in relation to Matthew. Whilst reprehensible to lie to a DVSA officer, it was quite a demand to grass-up your father. I was invited to consider a “controlled revocation”, allowing time for a new application.

4. CONSIDERATION AND FINDINGS OF FACT

The Vehicle Examiner identified that brake performance testing was not part of the operator’s maintenance and so I find that complete preventative maintenance inspections had not taken place. The authorised vehicles are 32-tonne tippers with complex braking systems. It is simply impossible to be sure that every part of every braking system is working properly without conducting laden brake testing. The potential outcome from defective brakes on such vehicles it sadly too-well known. Neither the operator nor the transport manager took any action to correct that until the DVSA maintenance investigation. In the positive, vehicles appear to have been brake-tested since that date with a reasonable weight. Assessment of the records generally indicates that the shortcomings have been addressed effectively. Section 26(1)(e) and (f) are made out but do not in themselves justify any significant regulatory action. They do, however, indicate that the systems need to be properly established at the current authority before an application to operate six vehicles could be entertained.

Mr Humphrey had not produced missing mileage reports. Whilst he had an explanation for over a thousand missing kilometres on one vehicle, that explanation created further concern. He had permitted a driver to drive who did not have a digital tachograph card and without checking that any entitlement to drive a large vehicle – or even any vehicle – was held. Drivers do not have to surrender their plastic driving licence when they are disqualified. The only effective record is that held online. Why would a driver not provide a national insurance number to allow their licence to be checked? Whether through naivety or for business convenience, a driver drove who may not have had an entitlement to do so. No check was made that the driver card had been reported lost or stolen so the concession to drive whilst a new card is issued was not engaged. Mr Humphrey was not exerting continuous and effective management of the transport operation.

The missing mileage shows records for vehicle V16TJT. No vehicle with that registration has ever been on the Alsoils licence. It appears to be vehicle HS16RXA and it appears that the tachograph was not recalibrated with the correct registration number from entering the operator’s possession in October 2021 until calibration expiry in March 2022. That is extremely lax transport management. Mr Humphrey had not been checking missing mileage. Mileage is missing as follows:

From	To	KM Missing
V16TJT
12/11/21	13/11/21	1070
13/1/22	20/01/22	53
YP15OOB
12/1/22	13/1/22	26
11/3/22	17/03/22	307
GD14JFE
15/12/21	20/12/21	35
22/2/22	23/2/22	25

Aside from the 1070 kms, Mr Humphrey could not explain the other episodes. There is a note on file that YP15OOB was used by “Calvin” on 15 March but no explanation for him not using his card.

Mr Humphrey was aware of the use of the fourth, and indeed the fifth, vehicle. I am told that no more than four were in use at any one time. Mr Humphrey took no meaningful action to prevent the use of the fourth vehicle. He told me that he knew Mr Hill was busy. The transport manager’s very job is to resist the commercial pressure for non-compliant operation. In many ways, a transport manager is the Traffic Commissioner’s eyes and ears within a business. Mr Humphrey was unaware of the proactive role expected of an external transport manager. These are set out at Article 4(2)(b) of EU Regulation 1071/2009 as follows:

The tasks to be specified shall comprise, in particular, those relating to vehicle maintenance management, verification of transport contracts and documents, basic accounting, the assignment of loads or services to drivers and vehicles, and the verification of safety procedures;

Those tasks go far beyond checking that the wall-planner has some dates on it. Most importantly, they are proactive management interventions intended to prevent non-compliance, not after-the-event checks or audits. So I find that Mr Humphrey has failed in his duty to continuously and effectively manage this transport operation allowing vehicles to be operated over and above authority, to be in service with unknown brake performance (and there have been historic brake failures) and with unvetted drivers behind the wheel. Those findings tend to support a conclusion that Mr Humphrey has lost his good repute as a transport manager. Before coming to that conclusion, I note that his transport management activities account for only a few hours each week and that Mr Humphrey has his own, completely unrelated business as a locksmith. It is therefore not disproportionate to conclude that his good repute is lost and I do so.

In considering a period of disqualification, I remind myself of the effect of the implementation of the UK:EU Trade and Cooperation Agreement which has amended Schedule 3 to the 1995 Act. Paragraph 17(1A) of that Schedule now reads:

(1A) If the disqualification order was made because a traffic commissioner determined that the disqualified person ceased to be of good repute, the order may be cancelled—

(a) no earlier than one year beginning with the day on which the order was made, and

(b) only if the disqualified person has, after the order was made—

(i) passed the written examination referred to in paragraph 13(1)(a), or

(ii) for no less than three months undertaken training a traffic commissioner considers appropriate.

I disqualify Mr Humphrey for a period of one year. I leave him to choose whether he wishes to resit the CPC examination or demonstrate a period of relevant training or, indeed, to do none of those if he does not wish to rely upon his qualification again. I would consider relevant training to include working alongside another transport manager within a transport business; Mr Humphrey is free to suggest other options.

Mr Bowyer referred me to the Bryan Haulage and Priority Freight questions. There are many and acknowledged negatives in this case with the deliberate and persistent use of a vehicle beyond authority and lying to a DVSA Examiner carrying the heaviest weight. There are also positives. Action was taken swiftly after the DVSA maintenance investigation. Aside from missing mileage, the compliance documentation I saw was in good order. It should not take a DVSA investigation and call to public inquiry to generate compliance but the fact that it has is a positive. The public inquiry evidence was properly presented, candid and complete. I give the operator credit for instructing good legal support which facilitated that; that shows that the operator values their operator’s licence. I find that this is an operator that I can expect to be compliant in the future and whose non-compliance, serious as it has been, does not warrant being put out of business at a first public inquiry.

The competitive advantage of operating the fourth and fifth vehicle cannot go unmarked. The period of abuse appears to be around 6 months. It is appropriate that I take regulatory action that marks that as unacceptable.

The operator understands that the variation application must be refused.

5. DECISION

Pursuant to Section 26(1)(h) of the Act, that the operator lent licence authority to a vehicle registered to Steeden Property Development, or that it operated beyond authority, the licence is curtailed to two vehicles for 12 months. The operator has 7 days to identify which vehicle is to be removed.

Pursuant to Section 26(6) of the Act, the vehicle removed by virtue of the curtailment is prohibited from use under authority of any operator’s licence. (The operator can seek to vary this order if it is demonstrated that the vehicle is being permanently disposed of to an unconnected party).

The variation to increase authority is refused due to a failure to demonstrate that there are proper procedures in place to manage drivers hours compliance and due to lack of professional competence.

John Edward Humphrey has lost his good repute as transport manager and is disqualified from acting as such for a period of one year. Rehabilitation measures also apply as set out in the written decision.

The operator is without professional competence and revocation is mandatory. Allsoils+ Ltd has a period of grace of two months to satisfy that requirement. If that is not satisfied, the licence is revoked.

I provide a period of grace of 3 months to licence OH2050252 to re-establish professional competence.

Kevin Rooney

Traffic Commissioner

6 July 2022