Decision

Decision for Cotorobai Trans Ltd

Published 17 September 2024

0.1 IN THE EASTERN TRAFFIC AREA

1. COTOROBAI TRANS LTD  OF2020101

2. ANISOARA COTOROBAI TRANSPORT MANAGER

3. CONFIRMATION OF THE DEPUTY TRAFFIC COMMISSIONER’S DECISION

This case is called under Section 26, 27 and Section 28 of the Goods Vehicles (Licensing of Operators) Act 1995. The Transport Manager, Anisoara Cotorobai, is called under Section 27 and Schedule 3 of the Act. This operator holds a standard national licence authorising 6 vehicles and 6 trailers, with four vehicles specified.

Attending Public Inquiry on 25th June 2024 was Vladimir Cotorobai (Director) and Anisoara Cotorobai (Transport Manager). They were represented by Dominic Bright of counsel. Also in attendance was a Romanian translator, Claudia Ene.

Unusually, I adjourned the hearing part heard. The case was relisted at 10am on 3rd July 2024. My reasons for adjourning the case were partly because of professional difficulties for their counsel, Mr Bright, but also due to their acknowledgement during the hearing that Mrs Cotoborai does not meet the requirements in Schedule 3 and the need to apply for a period of grace as a result.

I made it clear when adjourning the hearing that the full range of options remained available to me, and the adjournment should not be taken as any expectation as to disposal.

The hearing reconvened at 10am on 3rd July 2024 with the same persons involved. Prior to that hearing I received a written application for a period of grace in respect of a Transport Manager meeting Schedule 3 with accompanying documentation along with a TM/1 for proposed TM Marin Cotorobai (the Director’s brother). Marin Cotorobai did not attend the reconvened hearing.

4. Background

This operator does not have any adverse compliance history since the licence was granted on 5th March 2019.

On 21st April 2023, DVSA issued a letter to the operator notifying it that vehicle AW15 KJJ, one of the vehicles specified on its licence, had been observed on the National ANPR System being operated on the public highway network without a valid annual test certificate in force. The operator was given until 28th April 2023 to provide a full detailed account of the process undertaken to investigate the circumstances leading to the offence.

On 27 April 2023, the operator’s sole director, Vladimir Cotorobai, responded on its behalf. Mr Cotorobai stated that he had acquired the vehicle in September 2022 and had been led to believe that it had an MOT test until 2023. He submitted that his Transport Manager had made the wrong notes and informed him that the MOT was valid until January 2023. Further, he stated that the vehicle was not actually used until January 2023 and by the end of that month he had identified that the vehicle did not have a valid test certificate so immediately removed it from the road and arranged for an annual test which did not take place until 21st March 2023.

Evidence given at Public Inquiry confirms that in fact the vehicle had been used up until March, contrary to this email correspondence.

On 27th June 2023, DVSA issued another letter to the operator by email notifying it that its response was unsatisfactory and that DVSA would now be carrying out a remote Desk Based Assessment (DBA). The operator was required to complete an attached Desk Based Assessment Questionnaire (DBAQ) and provide requested records by no later than 11 July 2023.

On 18 July 2023, DVSA sent a follow up email to the operator as no response to its letter of 27 June 2023 had been received. The operator responded on the same day apologising for the lack of response stating that it had not received the letter. The deadline was extended to 14th September. The DBAQ was completed and was

signed and dated 30 August 2023.

On 11 October 2023, a remote DBA was conducted by Remote Enforcement Officers

Adrian Seadon & Syedul Ali. Shortcomings were found in the following areas:

• Operating Centre: as well as the authorised Operating Centre, the operator confirmed that it used the Red Lion Truckstop (both of which were in Northampton).
• Inspection/ Maintenance Records: some records were not at industry standard, did not provide all required information, and were not checked. No brake test checks were recorded. In one instance, a vehicle was defected by the maintenance provider for incorrect size tyres but was signed off as fit for the road. Inspection intervals were not managed.
• Driver defect reporting: multiple occasions where driver related defects were recorded, when they should have been identified by the driver, including tyre defects. No evidence of a paper based or app based system described by the operator. No evidence of a documented gate check
• Inspection facilities/ Maintenance arrangements: the contractor used was not the one listed on VOL, and the lack of documented evidence provided meant that the REO was unable to provide a satisfactory assessment of the maintenance provider used.
• Vehicle emissions: although systems had been referred to by the operator, no evidence of documented processes had been provided.
• Wheel and tyre management: the operator indicated that it relied on wheel and tyre specialists to ensure compliance, but no documented process had been explained or supplied on how this was monitored.
• Load security: the operator indicated that the customer loads the trailer, and the drivers secure the load. No systems for documenting the procedures and no training, other than at induction, were provided.
• Driver documents: no evidence of any system for checking driver licences. No forward planning on CPC.
• Driver training records: no evidence of training and no training records.
• Drivers’ hours/ record keeping; driver cards were not being downloaded at the correct intervals, deadlines were being missed by months. No effective system for checking tachograph records - system appeared to reveal drivers’ hours infringements, with no investigations undertaken.
• Working time Directive: documents provided were incomplete, did not refer to averages and cannot be relied on for accuracy.
• Transport Manager: no evidence of CPD. Lack of any evidence to support driver compliance systems, and for most vehicle maintenance.

The operator’s response to the shortcomings of the DBA was received on 6th December 2023. Driver licence checks for Vladimir Cotorobai & Vasile Staver were attached with the response. The response attempted to address the shortcomings as follows:

• Operating Centre: the operator responded indicting that it was in the process of moving from the Red Lion Truckstop to the new OC. Red Lion was not removed until the new OC was authorised.
• Inspection/maintenance records: the operator was not aware that the documents used by the maintenance provider was not industry standard - the provider indicated that the documents had always been used. The operator stated that it was required to move from a previous maintenance provider, as it had taken on a large contract, and could no longer provide it with services. The current provider will only carry out the safety inspection, following which the vehicle goes elsewhere for defect rectification. The operator acknowledged the lack of a VOR, forward planning and vehicle recall system.
• Driver defect reporting: the operator indicated that, although it had a system in place, it had not been working. It is in the process of bringing in an App - based reporting system.
• Inspection Facilities/Maintenance arrangements: the operator indicated that it had attached website details of the provider- the operator had not realised that it needed to make enquiries of the maintenance contractor.
• Vehicle emissions: the operator indicated that drivers were issued with fuel cards and obtain Adblue when required - a monthly usage report is provided by the fuel suppliers, which is monitored by the director.
• Wheel and Tyre management: the operator relied on the professionalism of the tyre contractors, and on the documents provided by the tyre company. The tyre company makes the decisions on tyre repairs.
• Load Security: the operator conceded that no documented system recorded monitoring and training.
• Driver documents: the operator provided a driver licence check system, but no forward planner for driver CPC training.
• Driver Training Records: the operator conceded that it had no training records but would now implement a system.
• Drivers’ hours/ record keeping: the operator indicated that the download key for the tachograph had failed, and therefore records were not produced. The tachograph is now fitted with an automatic download system. The operator admitted to lost data which had prevented the disciplining of drivers.
• Working Time Directive: the Transport Manager was unaware of the requirement to include neutral time in the working time records. Also, one driver worked for an agency during the reference period, and the driving time incurred whilst working for the agency was not included in the driving hours incurred whilst driving for the operator.
• Transport Manager is booked on a TM update course for 17-18 January 2024. It was accepted that the Transport Manager had failed.

The operator stated that the TM had been given one months’ notice of termination of contract. The TM was to be replaced with an external transport manager. Vladimir Cotorobai had booked onto an OLAT course. Despite this, Anisoara Cotorbai remained the nominated Transport Manager on the licence. I heard evidence in the hearing that another TM had been in place for a few weeks but had left when they heard about this hearing.

The response was regarded by the DVSA as unsatisfactory. It was felt that the operator and TM had responded to all driver/traffic related issues raised, acknowledging all identified shortcomings, and provided assurances on remedying them. However, in relation to vehicles, the view was that the operator had not reported on all issues. Some areas described, such as the system where the vehicle was inspected by the maintenance provider before going elsewhere for defect rectification, was not supported by any evidence. No maintenance contracts had been provided. The operator had confirmed that the system for defect reporting was not working but provided no further information on the issue. No indication had been provided on how the operator manages or monitors tyres. Further, there was no information on why a particular vehicle was used whilst the MOT had expired.

5. The Hearings

Financial documentation provided demonstrated that the operator had sufficient financial resources, such that I am satisfied that the applicant is of appropriate financial standing and has sufficient financial resources to ensure that vehicles can be maintained in a fit and serviceable condition.

The evidence of the REO was not disputed so I have taken it as read.

The operator accepted breaching undertakings and conditions on the licence. They also accepted that they had misled DVSA in email correspondence regarding use of the vehicle without a valid MOT, albeit Mr Cotorobai said this was not intentional. I accept his evidence that at the outset it was not intentional, however he did not correct the mistake once it was apparent.

REO Vehicle Examiner Seadon further analysed maintenance records provided by this operator in advance of Public Inquiry. He concluded that:

“Assessing the documents provided by the operator, there were issues highlighted in the original assessment, that are still present in the latest documents provided, as listed above. The inspection records provided are of the correct format but have been altered to accommodate tyre age, at the expense of the brake wear. The correct completion of inspection records was highlighted during the original assessment. No tyre pressures or tyre age for all tyres has been recorded. The operator has not provided any explanation how they are managing their tyres due to this issue. When we look at the inspection records, there are occasions when defects have been recorded with no actual rectification recorded only advice/reported. We also still have the issue of driver related defects being recorded on multiple occasions.”

REO Traffic Examiner Ali also analysed driver compliance records provided in advance of Public Inquiry. He concluded that:

“Evidence supplied and analysed shows improvements in compliance since previous DBA. However, the driver licence checks are most recent (June 24) and no actual infringement reports have been produced although, disciplinary evidence for the infringements (which correlates with findings of this assessment) have been produced for the specified 4 months assessment period. It would have been desirable to have additional evidence / documents from earlier dates after the last DBA, to show that the improvements started immediately after the completion of the DBA and that they are on-going and continuous.”

I was provided with confirmation that Vladimir Cotorobai and Anisoara Cotorobai attended a 2-day TM Refresher course on 17th and 18th January 2024.

I heard evidence from Mr Cotorobai that when he initially bought the vehicle that triggered the investigation, he thought the MOT was in force for longer than it was.  He wasn’t provided with documentation. I challenged him as to why he still bought the vehicle without documentation. He said that he had checked a website that showed it had an MOT but not when it expired. I asked which site he used, and he said he couldn’t recall but now knows that on gov.uk this would have all the dates on it. He confirmed that he would now ensure a pre-use check is carried out with a brake test.

He confirmed that when he took the vehicle for a pre-MOT check at the end of January 2023, he realised that the MOT had expired. I was told that the vehicle had been driven for about 20 days between MOT expiry in November and end December 2022. Mr Cotorobai gave evidence that the vehicle was also driven in January but not many times as it was a spare vehicle.  He had identified some issues with the vehicle so was waiting to get it booked in; electrical issues that affected wipers, indicators, and headlights. He admitted to using the vehicle for about 30 days between end of January and when it was tested in March despite what he told DVSA (email at page 60 of the bundle).

When giving evidence about that email he told me that when he wrote the email, he believed it to be true and the information he relied on was his trackers, which he told me showed it had not been used. He confirmed that after he realised it was an issue he did not correspond further with DVSA /OTC to correct the mistake.

Mrs Cotoborai told me that the issue was her mistake as she didn’t understand how to use Tachomaster. It was then after the DBA that identified the vehicle had been used, she went back to consider Tachomaster and realised it had been used. She told me that this issue is now resolved using Convey.

In respect of operating centre, it was accepted that this operator used Red Lion as an Operating Centre without it being authorised.

Mr Cotorobai gave evidence in respect of maintenance and the use of a new provider that has now been added to VOL.  In respect of the DVSA criticism that they were not fully completed, Mr Cotorobai told me that he had raised this with the maintenance contractor, and they will be fully completed going forward.

Tyre inspections are carried out once every 6 weeks by Tyre Northampton, I am told.  Mrs Cotoborai gave evidence that they use the DVSA Guidance on Tyre defects and damage: HGV’s, buses and trailers and this has been handed to drivers. They also receive training which is signed for.

In response to page 134 of the bundle in respect of wheel torque I was told that the system is in place and monitored by Mr Cotorobai. He explained the retorque policy and I am satisfied that he understands the requirements. He further gave evidence to drivers have been trained on the importance of this.

Page 110 of the bundle was raised with Mr Cotorobai in respect of load security; he explained there have not been any incidents relating to load security. He went on that he has shown his drivers a guide of how it works; I was provided with a copy.

Mr Cotoborai gave evidence about brake testing, that RBT are carried out at every other PMI. I gave Mr and Mrs Cotorobai a copy of an RBT printout for vehicle AW15KJJ dated 23.05.24 and asked them what might concern me about it. They identified that the percentages were slightly lower than they should have been and that this is possibly caused by insufficient load.  We identified that nearly all the RBT were insufficiently laden. I was told that going forward this would be remedied.

In the reconvened hearing Mr Cotorobai gave evidence regarding defect reporting, and I formed the impression that he understood the required process. However, he does not carry out gate checks. I was offered an undertaking regarding gate checks going forward.

Driver compliance is now managed using Convey, which I was told, has remedied many of the concerns raised by DVSA I am told. It was accepted that there was a significant failing reading record keeping.

In respect of working time directive, it was accepted that the TM did not have the required knowledge in respect of WTD and this was not being managed correctly. This is now managed through Covey which I am told is far more user friendly. Mr Cotorobai that the proposed TM, Marin Cotorobai uses the same system and so understands it.

5.1 Submissions

Regarding repute I was urged to consider Statutory Document No. 1 at paragraph 39; “Repute is a mandatory and continuing requirement and although repute must be considered as at the date of any decision that does not mean that the past becomes irrelevant.” He stated that the operator and Transport Manager have been fully transparent, including admitting that they misled DVSA.

I was urged by Mr Bright to find that the accepted breaches fall within the category of “severe” (ref Annex 4 of Stat Doc 10) as a starting point but urges me to move down from this, indeed he went on that I can move from severe to low. By way of positive features, I am urged that as of today there are effective procedures in place, effective training, no compliance history, sufficient and effective changes made, an operator who has been honest in evidence and fully cooperative. By way of negative features, he accepted that there have been deliberate acts that have led to road safety risk and unfair competition, a failure to notify within 28 days, ineffective management control at the time of these issues but that has now been remedied, low average first time pass rate at MOT.

I was offered undertakings as to an audit and was urged to take regulatory action by way of a time limited curtailment that did not materially affect the transport operation.

Regarding impact I was told that if the licence was revoked the company would be shut down.  This is his family’s sole source of income including two small children aged 8 and 10. The company employs 7 people who I was told would lose their jobs. In respect of suspension, I was told that this would be tantamount to revocation. I was told that ordinarily 3 vehicles go out daily (Monday to Friday) and bookings are usually made 30 days in advance. There is one spare vehicle they use when the others are in for maintenance etc.

In respect of the application for a PoG I was urged to find that the McKee test is met and indeed that this operator has gone further by finding a proposed TM at short notice.

5.2 Transport Manager Evidence

In respect of Mrs Cotorobai’s position as Transport Manager, she accepted that she had failed in her duties but gave evidence that she is now aware of the importance of her role. I was told that there had been an intention to replace her, and they did so for a short period of time, but that Transport Manager left so she resumed the role.  I note that this was not notified.

She gave evidence that getting her certificate in Romania has caused issues, so she is going to re do the course in UK. I am concerned at her level of understanding.  She attempted to satisfy me that she had the necessary knowledge but relied on the fact that this Public Inquiry has raised issues that she now knows about. When asked about all the areas not yet covered in the hearing, she tells me she reads updates.

She was unaware of the information in the Guide to Maintaining Roadworthiness relating to brake testing and told me that she relied on advice from a more experienced Transport Manager. She told me she had read the Guide but was not aware of the advice at 5.3 regarding brake testing so thought a RBT every other PMI was sufficient, with no brake test in between.

Mr Cotorobai acknowledged that his Transport Manager needed to change, and that Mrs Cotorobai did not meet the requirements in Schedule 3; she too accepted this.

Mrs Cotorobai did the CPC course on 20th October 2018; she was working and living in England at the time.

At the reconvened hearing I was invited to grant a period of grace in respect of the lack of Transport Manager meeting Schedule 3. I heard further evidence.

6. Areas for Consideration at Public Inquiry:

The issues for concern for this Public Inquiry are:

• Section 26(1)(b) - breach of the conditions on the licence: failure to notify the traffic commissioner within 28 days of changes in maintenance and safety inspection arrangements and events which may affect the professional competence of the licence holder and/or transport manager you have breached the conditions on your licence, namely, that the licence holder
• Section 26(1)(e) - statements made when applying for the licence were either false or have not been fulfilled: that your vehicles would be inspected at the 6 week intervals you promised they would be, that safety inspections and/or maintenance and repair work would be carried out by RPM Garages, K2 Recovery & New Euroline Ltd, that the licence holder would abide by the conditions of its licence, including in respect of operating centre.
• Section 26(1)(f) - not honoured undertakings signed up to when applied for licence: vehicles would be kept fit and serviceable; observe the rules on drivers’ hours and tachographs and keep proper records; drivers would report promptly any defects or symptoms of defects that could prevent the safe operation of vehicles and/or trailers, and that any defects would be promptly recorded in writing.
• Section 26(1)(h) - material change: the requirement that the operator not be unfit to hold an operator’s licence; may not meet the requirement to have sufficient financial resources to support the total number of vehicles authorised on the licence and be professional competent.
• Section 27(1)(a) – concerns regarding the operator’s repute; sufficient financial resources, professional competence.
• Section 27(1)(b) – concerns regarding whether the Transport Manager meets the requirements.
• Section 28 – Disqualification.

I am also to consider the repute and professional competence of the nominated Transport Manager

7. Decision

I make adverse findings under section 26(1)(b), (e) and (f) in respect of this operator as outlined above and (h) in respect of professional competence. I find that this operator’s repute is intact but is severely tarnished.

I make adverse findings under sections 27(1)(a) in respect of professional competence and section 27(1)(b) concerning the Transport Manager.

Having made a finding in respect of professional competence I must either revoke this licence or grant a period of grace.  I am satisfied on the evidence before me that there is tangible evidence to grant a PoG of 30 days from today to allow the application to be processed.

There must be deterrent effect in this case; operating a vehicle without a valid MOT as against a higher than average MOT failure rate, use of an unauthorised operating centre and an acceptance of substantial failings in operator compliance are extremely serious matters.

 I have carefully balanced the competing factors and I determine that the failings are in the serious bracket. I cannot accept Mr Bright’s submission that the case moves from the severe to low brackets in Annex 4. To do so would be to ignore the severity of the DVSA findings. This operator must learn from what has happened here and continuously improve.

Importantly, however, this operator has demonstrated that they have taken these matters seriously and made tangible improvements in their processes.  They have been fully cooperative and both Mr and Mrs Cotorobai have been credible in evidence before me. I also note that the operator has no previous compliance history.

I consider that this operator can be trusted going forward and should not be put out of business. Consequently, I have carefully considered the submissions made to me on impact to ensure that whilst deterrence is achieved, the business can continue and indeed progress in future.

I curtail this licence down to 2 vehicles for a period of 14 days commencing 23:45 on 4th August 2024. I have been offered, and accept the following undertakings:

• Laden roller brake testing to be carried out at every PMI.

• The operator will arrange an independent audit to be carried out by a DVSA-authorised audit provider, the RHA, Logistics UK or other equivalent independent body, by 3rd January 2025. The audit will assess the systems for complying with maintenance and/or drivers hours requirements, and the effectiveness with which those systems are implemented. The audit should cover at least the applicable elements in the attached annex. A copy of the audit report, together with the operator’s detailed proposals for implementing the report’s recommendations, must be sent to the Office of the Traffic Commissioner, Cambridge within 14 days of the date the operator receives it from the auditor.

I note the statement of intent regarding weekly gate checks on each driver.

The operator should take this Public Inquiry as their last chance to get things right and strive for the continuous improvement I was told about in the hearing today.

7.1 Transport Manager

Regarding Transport Manager, Mrs Cotorobai, she accepted that she fails to meet the requirements of Schedule 3 and thus I have no option but to find she lacks repute as a TM and to disqualify her from relying on her existing Romanian CPC. In relation to rehabilitation measures, Mrs Cotorobai accepted in evidence that her Romanian CPC did not provide her with the level of knowledge she needed.  Therefore, the only realistic outcome is for Mrs Cotorobai to sit the UK CPC, as she has stated she will do, and then be considered afresh. I cannot see any bar to her being specified on a licence going forward, if she successfully completes a UK CPC. I find that she has clearly been trying to get things right, albeit she accepted she didn’t have the necessary knowledge.

Laura Thomas

Deputy Traffic Commissioner

3rd July 2024