Decision

Decision for Charlie George Bailey (OH2033128) and Mark Mitchell, Transport Manager

Published 4 August 2022

0.1 In the Western Traffic Area

1. Written Decision of the Traffic Commissioner

1.1 CHARLIE GEORGE BAILEY OH2033128

1.2 MARK MITCHELL – TRANSPORT MANAGER

2. BACKGROUND

Charlie George Bailey is the holder of a standard international goods vehicle operator’s licence which was granted interim authority in May 2020 and in full in July 2020. It authorises the use of one vehicle and one trailer from Pilsdon Hill Farm in Bridport, Dorset. One vehicle is shown as in possession.

On 24 May 2021, Mr Bailey applied to increase the vehicle and trailer authority to 2 vehicles and 2 trailers. On 27 July 2021 the application was refused as the operator didn’t provide evidence of a valid newspaper advertisement.

On 14 July 2021 police constable Mark Brazier during a commercial vehicle compliance operation stopped vehicle WS14CFS, a DAF tractor unit drawing a curtain-sided semi-trailer. The vehicle had no operator’s licence displayed in the vehicle. The driver stated he was working for Mr Bailey. The vehicle was not specified on the licence and there was no margin. Elements of the load were not secured. A prohibition was issued for a tyre defect. A verbal warning was issued for five drivers’ hours offences.

On 8 August 2021 the operator applied to increase the vehicle and trailer allowance from 1 vehicle and 1 trailer to 7 vehicles and 9 trailers. However, on 25 October 2021 the application was refused due to the correct finances not being provided despite attempts made by OTC Licensing to obtain this information.

On 20 October 2021, the DVSA Traffic Examiner, Richard Smith interviewed sole trader Charlie Bailey due to the findings of the police road check as it was apparent that the operator was using more vehicles than authorised. Mr Bailey stated under caution that they understood that they had an interim licence and confirmed that, by the time of the interview, they were only operating 1 vehicle.

On 25 October 2021, TE Smith completed a Traffic Examiner Report. The score required that it be reported to my office. Amongst the shortcoming, the Examiner found that the transport manager was not exerting the necessary control, inadequate training on load security, haphazard filing and no formal training in place. There were 371 km unaccounted for in September 2021. Two drivers were self-employed, two vehicles were in possession.

These extensive apparent shortcomings caused me to call the operator and the variation application to public inquiry. Mark Mitchell was called to consider his good repute as transport manager.

3. THE PUBLIC INQUIRY

Charlie Mitchell attended represented by Laura Hadzik, solicitor. Mark Mitchell attended unrepresented. DVSA was represented by Richard Smith, Traffic Examiner.

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.

3.1 The evidence of Richard Smith, Traffic Examiner, DVSA

Mr Smith confirmed and adopted his written evidence. There had been no further encounters with the operator. He confirmed that the operator had no formal filing systems; everything was in a box. There were documents for private vehicles amongst the paperwork. It was Mr Bailey who was doing the filing. In referring to the apparent failure to record drivers’ other work, they were part-time and no details were taken of their other commitments when not driving for Mr Bailey.

I asked about the apparent disagreement between the operator’s statement at interview under caution that only one vehicle was being used and Mr Smith’s finding that both vehicles were being used. Mr Smith confirmed that he had subsequently found evidence of both vehicles being on the road but not at the same time. Both the transport manager and the operator were present throughout.

3.2 The evidence of Mark Mitchell

Mr Mitchell told me that he had been in transport for twenty-five years. He was a driver trainer, had been an operations manager. He had taken his transport manager exam four or five years ago. He worked solely as a transport manager with four clients and relied upon his qualification. He had sat the two-day refresher course on 3 and 4 May 2022.

He had been introduced to Mr Bailey through an agency; he could not remember which one. He visited the operating centre once a week except through Covid when they used the phone or Teams. The business was now importing animal feed.

I passed Mr Mitchell a description of a working week in May this year that was present in the operator’s bundle. Mr Mitchell was unable to describe the week to me, whether the vehicle was loaded in UK or Europe or where the vehicle went. He did not know what the cabotage rules were. He told me that it was legal to undertake six loads in Europe. It appeared that there may have been cabotage breaches but there was insufficient evidence.

Transolva do the tachograph analysis. The vehicle units download remotely, automatically. Mr Bailey downloaded driver cards. I took Mr Mitchell to a letter to the operator from him where he noted that one driver’s tachograph card had expired. Mr Mitchell told me that a driver had received a new card but it didn’t work.

Mr Bailey was now undertaking the maintenance. I asked about his qualifications. He was JAUPT trained. I noted that the PMI record appeared more akin to a driver defect report. Mr Mitchell could not tell me how it aligned with the DVSA Guide to Maintaining Roadworthiness. That was an oversight. I noted that there was nothing in the papers in relation to the trailer – Mr Mitchell told me that there should have been. I could only find two brake tests over a year – they were missing said Mr Mitchell. I bluntly asked Mr Mitchell what he actually did as transport manager – no response.

I noted that Mr Mitchell had requested an adjournment but the booking confirmation was dated the day after the call-in. Mr Mitchell explained that the holiday had been booked last year and was cancelled, he had rebooked it and lost the confirmation. The campsite had provided a confirmation. I accepted that explanation.

Mr Mitchell was embarrassed at being in front of me. Both he and Mr Bailey had had personal problems. They had improved in the last six months. Their working relationship was good.

Ms Hadzik asked about the agreement between Mr Bailey and Mr Mitchell in terms of commitment. He told me he was paid a set number of hours as set by the traffic commissioner, four hours a week. His weekly visits were a more recent activity. It had been difficult both because of Covid and because Mr Bailey was away a lot. The driver cards were actually downloaded automatically. If the analysis highlighted any issues, Mr Bailey would speak to the driver.

3.3 The evidence of Charlie Bailey

Mr Bailey told me he was twenty-three. He had the operator’s licence since May 2020. He got his HGV licence at 18, artic at 19. He did some work for a local haulier. He then had the opportunity to drive a vehicle with horses on to Spain. He was approached by a friend who was starting international horse transport and did quite a lot of work for him to Spain, France and Germany. He got a lot of experience that way.

He bought a vehicle and refurbished it through Covid. He started to import wood-shavings from Germany. With Brexit approaching, he had to buy a Euro-6 vehicle for an ECMT permit, although that then became unnecessary. His work now was importing wood shavings which they resold. Going out was a range of loads from local customers. There was a customer in France.

When Mr Bailey first applied for an operator’s licence, he struggled to find a transport manager. He used an agency to help him complete the application and they put him in contact with Mr Mitchell. The commitment was for four hours a week. In the lead-up to the encounter on 14 July 2021, he had PX06CMB which was sold early January 2021, NU63GDO was bought in December 2020, WS14CFS was bought in July from Holland. I noted that the public record showed the last V5 for WS14CFS was issued in April. Mr Bailey conceded that he had bought it in April.

Mr Bailey told me that he thought he could operate two vehicles because he had applied for an increase and paid for an interim. The vehicle had been put to work around mid-June. On 14 July, the driver, Ian Payne, contacted him to stay that he had been pulled over by Thames Valley Police as part of a DVSA operation. He called again to say that there was a cut in a tyre which wasn’t able to continue. There were some infringements, he had been told to add some straps. He did have load-bearing curtains but not the paperwork for them. Mr Bailey didn’t recall anything being said about the vehicle not being on a licence. He had no direct contact with the police officer.

Mr Bailey had sent a message to Mr Mitchell that evening to give him the background and outcome. The next contact was when TE Smith called to undertake a visit. By the time of the interview, he had two vehicles but was only operating one at a time. Following refusal of the first variation application, he understood that his authority was down to one vehicle. When the second application was made, he thought he could again run a second truck on the interim. The variation to seven came about because he was very busy. He had been owed money which he had expected to be paid and would have provided financial standing. The money had not been paid and so the application failed.

On the day of Mr Smith’s visit one vehicle was in the yard and only one working. He had been completely unaware that what he had been doing was wrong. He believed the interim to be valid. Thereafter, two vehicles never left the yard at the same time. Vehicles were swapped around as they suited different trailers. One was lower and could carry a bigger trailer abroad. The other carried more weight.

Mr Bailey described the movements of the week of 15 May and I was satisfied that the journeys were compliant with the cabotage regulations. Mr Bailey appeared to have a sound understanding of the rules surrounding international transport.

Mr Mitchell would review infringement reports to see where things had gone wrong. Drivers would sign them. They were moving away from Transolva and planned to move to RHA who could provide a complete solution.

Mr Bailey was not happy with the work of his original maintenance provider. They now had brake tests at a local workshop. He himself had no qualifications, only experience. In the future, documents would be stored online. Inspections and maintenance would be outsourced.

Mr Mitchell was still engaged as transport manager. A replacement had been identified who could come in and get things right (Owen Evans of Essex Driver). Mr Bailey had attended a DVSA new operator seminar on Zoom and was booked on a one-day refresher course. He had acted in good faith and done what he thought was correct.

I asked Mr Bailey what he hoped for as a satisfactory and realistic outcome from the inquiry given the serious matters before it. He still wanted the licence to continue. I asked why WS14CFS had been in the operator’s possession since April, working from June but not specified until November. Mr Bailey told me that he assumed he was permitted to use the vehicle once he had paid for the interim. I pointed out that every letter from the licensing team ends with a warning to abide by the existing terms until told otherwise, that when he had been granted interim authority at first application he had been sent a licence and a disc and that the fact that the system would not allow him to specify a vehicle should have been a red flag. I put it to Mr Bailey that he did know he had no authority and he had made a commercial decision to put the recently acquired vehicle to work. Mr Bailey told me that he had misunderstood.

I turned to maintenance and asked why there were no records of any trailer maintenance at all. Mr Bailey told me that he had sold his own trailer last year and was awaiting to register the replacement (it had been imported and not had a first test). They had been doing a lot of traction work. They had used trailers belonging to another haulier but had no hire agreement, no maintenance records. There were currently two vehicles in possession. One was off the road awaiting repairs. Inspections were undertaken in a covered workshop. There was no pit nor brake test equipment but did have a scan tool. I noted that one vehicle had an engine warning lamp on the dash for several months. The DAF agent had been unable to detect the fault. Auto-electricians had also tried. Parts had been replaced but the defect recurred.

Drivers were himself and Ian Payne. Mr Payne had been employed as self-employed. Mr Bailey was trying to register with HMRC but had been unable to. I pointed out that Mr Bailey had told the Traffic Examiner in November 2021 that a contract of employment was in place. I invited the operator and Ms Hadzik to take a short break to consider what realistically could be achieved.

3.4 Private session

(REDACTED)

3.5 Private session completed

3.6 Closing submissions

Ms Hadzik told me that Mr Bailey had identified an option to bring wood-chip in to the country on containers and sub-contract the local haulage. Mr Bailey would like to remain in, or return to, the industry and to do it right. It was accepted that I might have difficulty in allowing this licence to continue but Ms Hadzik urged me to stand back from disqualification so that a new application could in time be made. That might come after Mr Bailey had attended further training, had a new transport manager, properly outsourced maintenance in line with The Guide to Maintaining Roadworthiness and moved to the RHA fleet management system. Mr Payne was considering sitting the transport manager examination in December. The new application would demonstrate how the transport operation had been managed meanwhile. Mr Bailey would need some time to put the contingency in place.

3.7 Interim decision

I made an interim decision to address the immediate road-safety risk by suspending the licence until I saw evidence that the unit and trailer were signed-off as roadworthy by a reputable workshop.

4. CONSIDERATION AND FINDINGS OF FACT

Many findings are not in dispute and I summarise those here:

• For a period of around six months in 2021, the operator was operating two vehicles on a regular basis. At some times, both were in service at once, at other times, they were not, but both were part of the business and so being used.

• There is no evidence of anything approaching preventative maintenance inspections of the type envisaged by DVSA’s Guide to Maintaining Roadworthiness

• Maintenance has been conducted by an unqualified person with no under-vehicle inspection facility. Brake performance testing has been sparse.

• The operator continues to allow a self-employed driver to drive his vehicle with his disc in the windscreen despite the obvious disconnect between the HMRC indicators of self-employment and the definition of “user” at Section 58 of the 1995 Act.

• There are copious drivers hours infringements identified in the operator’s records. They have all been signed by the relevant driver but there is no obvious trend of improvement

• There was no evidence of financial standing in the name of the sole trader who holds the licence.

I consider first the transport manager. Perhaps with the exception of financial standing, all the shortcomings above should have been prevented by a competent transport manager. Mr Mitchell told me that he visited the operator weekly but then conceded to Ms Hadzik that visits had been a recent innovation. I simply cannot see what Mr Mitchell has done to assist this operation at all. He had not considered whether cabotage might be an issue. He could not talk me through the week in May where it looked like there could have been breaches. He told me that he thought six journeys were possible. This is a standard international operation which regularly works in Europe undertaking cabotage operations. It had not occurred to Mr Mitchell that he ought to know what the rules are, nor that he should take some interest in where the vehicle is or what it is doing.

Mr Mitchell responded to the Traffic Examiner by email on 1 November 2021 (page 46 of my brief). He states within that response that “Formal contracts of employment are in place”. Seven months later, the driver is still self-employed. That statement was quite clearly a lie. He states that “only CU67OBO is in use”. WS14CFS was also in use. He says “All files have been separated into new labelled files for infringements, time sheets and training. Vehicle files have been separated to hold one vehicle per folder”. If that was true, why am I presented with a discombobulated pile of papers that it takes me two hours to make sense of? That was another lie.

I can find little in the positive other than that Mr Mitchell did attend the inquiry and I accepted his explanation for the booking being dated after the request for it to be provided. I take in to account that Mr Mitchell currently relies on his transport manager CPC. But the severity of the shortcomings at paragraph 36 and the false statements in response to the Traffic Examiner mean that I can only find that his good repute is lost. He has entirely failed to manage this small and fledgling transport operation with a young and inexperienced owner.

I note that Mr Mitchell has already attended a two-day refresher course. I am constrained by the effect 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.

Mr Mitchell, above everything, requires a period of reflection on what the role of an external transport manager really is. A period of one year should provide that. I do not wish to compel Mr Mitchell to sit and pass again his transport manager examination but I leave that option open to him. I also allow him the alternative of proposing appropriate training though I must admit it is not immediately obvious to me what that training might involve.

Charlie Bailey was copied in to Mr Mitchell’s response to the Traffic Examiner and I consider him to have equal ownership of those false statements. He is also equally culpable for the shortcomings at paragraph 36 above. I do not accept that he believed that paying the interim fee permitted the operation of the second vehicle. I can make that finding on the basis that a reasonable person should have asked first, especially when the online system barred him from specifying the second vehicle. The finding is strengthened by the statements on correspondence from the licensing office and, in Mr Bailey’s case, because he went through an interim application process only a year earlier and, in that case, was provided with a licence document and a disc.

So there is much in the negative but there is mitigation in his age, the absence of management from his transport manager and I have account of that which I was told in private session. I also find that he does have positives. He demonstrated a good knowledge of the law as it relates to running internationally including of cabotage. He took the time out to attend the Commercial Vehicle Show and has plans to improve the systems in place. He instructed legal support for the inquiry which demonstrates that transport is important to him. With the further training, better systems and, crucially, the right transport manager, I find that he could run a compliant operation. Whilst tarnished, Mr Bailey’s good repute remains intact.

Financial standing is not satisfied and there is no longer a transport manager. Section 27 (1) is made in both those regards.

More vehicles than authorised have been in use. Section 26(1)(h) is made out.

5. DECISION

Pursuant to a finding of loss of good repute, Mark Mitchell is disqualified from acting as a transport manager with immediate effect for a period of 1 year and until he either sits and passes again the transport manager CPC examination or attends three months acceptable training.

Pursuant to adverse findings under Section 26(1)(h) and Section 27(1), the licence is revoked with effect from 23:59, 13 August 2022.

I make no order for disqualification of the operator under Section 28 of the Act.

Kevin Rooney

Traffic Commissioner

11 July 2022