Decision

Decision for David Wrennall and Christine Wrennall (trading as D&C Wrennall) OC1071909

Published 18 July 2022

0.1 In the North West Traffic Area

1. Written Decision of the Traffic Commissioner

1.1 David Wrennall and Christine Wrennall (trading as D&C Wrennall) OC107190

2. Background

David Wrennall and Christine Wrennall trading as D & C Wrennall (“the operator”) have held a standard national goods vehicle operator’s licence OC1071909 authorising the use 7 vehicles and 10 trailers since October 2004. There are currently 5 vehicles in possession.

The operator did not have an appointed Transport Manager (“TM”) at the date of the public inquiry. The proposal to add Richard George Iddon as Transport Manager was one of the matters for consideration at the public inquiry.

The operator has four changes of Transport Manager in little over 2 years. Michael John Haworth held the role for 3 years until January 2020. He was replaced by Mark Charles Russell in April 2020 before his departure in February 2021. Alan Livingston was on the licence from 15 March 2021 until 8 June 2021. The most recent appointee was Chelsea Carten who was Transport Manager from 30 June 2021 to 16 November 2021.

The call to public inquiry followed a DVSA investigation commenced in July 2021 which identified several drivers’ hours infringements and in particular a concern about possible driver card lending. The investigation also raised concern about the Transport Manager situation and who was in actual control of the business.

The operator has twice previously been called to a public inquiry and has separately received two formal warnings.

In November 2013 the operator was called to a public inquiry with its then Transport Manager Daniel Wrennall (son of the partners) following a maintenance investigation which found several shortcomings. These were attributed to Daniel Wrennall spreading himself too thinly. Following assurances from the operator, the presiding Traffic Commissioner issued a formal warning.

A written warning was issued in 2014 following the failure to fulfil an audit undertaking on a timely basis.

In November 2017 the operator and TM Daniel Wrennall were called to another public inquiry. This was conjoined with a public inquiry for Wrennall Brothers Limited OC1104451 which also held a standard national goods vehicle licence. The directors of Wrennall Brothers Limited were Daniel Wrennall and his brother Lee Wrennall. Daniel Wrennall was also TM for that operator.

I do not propose to repeat the numerous failings that led to both operators being called to that inquiry, but they included drivers’ hours infringements and in particular an allegation that a driver had used another driver’s card to conceal an infringement. The presiding Traffic Commissioner found that the previous public inquiry had failed to Daniel Wrennall’s good repute was lost and disqualified him from acting as a Transport Manager for 2 years. A final warning was recorded against this operator and the licence was curtailed from 7 vehicles to 3 vehicles for 14 days. I will refer to the detailed reasons of the Traffic Commissioner for these decisions below.

A formal warning was also recorded against Wrennall Brothers Limited, and its licence was also curtailed for 14 days. The Wrennall Brothers Licence was revoked in March 2019 on grounds of a lack of professional competence after that operator failed to replace a departed TM.

On 14 May 2019 an application for a new operator’s licence by Wrennall Brothers Haulage Limited was considered at public inquiry. The directors of that company were also Daniel Wrennall and Lee Wrennall. Neither director appeared at the public inquiry and the application was refused.

On 20 April 2020 a further warning was issued to David Wrennall and Christine Wrennall on this partnership licence for the delay in appointing a replacement TM after Mr Howorth’s departure.

3. The Call to Public Inquiry

The call to public inquiry was issued to the operator on 4 May 2022 and cited the provisions of sections 26(1)(b), 26(1)(c), 26(1)(ca), 26(1)(e) 26(1)(f) 26(1)(h) and 27(1)(a)of the Goods Vehicles (Licensing of Operators) Act 1995 (“The Act”)

4. The Public Inquiry

The public inquiry was heard at Golborne on Monday 13 June 2022. I first heard driver conduct hearings for seven drivers engaged by the operator in relation to the individual drivers’ hours infringements. One of the drivers was [REDACTED]. Two of the drivers (who no longer worked for the operator) failed to attend. The partners were invited to be observe those hearings. Mr Iddon also observed the hearings by means of a video link (he was not allowed to attend in person at that point due to limitations of space).

The public inquiry was attended by the partner Christine Wrennall in person. David Wrennall did not attend. Mrs Wrennall explained at the outset that her husband was absent as he was not actively involved in the managing the transport operation and focussed more on the agricultural operations.

Daniel Wrennall was also present as a witness for the operator. Mr Iddon was also present as the proposed Transport Manager. The operator and partners were legally represented by solicitor Laura Hadzik.

The former Transport Manager Chelsea Carten was also present having been invited to attend as a witness. Ms Carten was not called as a party to the public inquiry in her own right as it appeared that her formal appointment post-dated the issues identified in the DVSA report.

5. The Evidence

In advance of the hearing, I was served with a comprehensive bundle of documentation in relation to the operator’s current management of vehicles and drivers. My assessment was those documents demonstrated that there were effective systems now in place.

During the driver conduct hearings, I asked three of the drivers who attended about instances when their drivers’ digicards were recorded as removed from the vehicles’ tachograph unit and swiftly replaced by that of Daniel Wrennall. On each occasion the driver was nearing the end of their permitted driving time. Each driver insisted that the swapping of cards was because Daniel Wrennall had come out to relive them from driving duties due to the situation with their hours. They all admitted that they had failed to record the corresponding positional journeys but were adamant that they had not been loaned Daniel Wrennall’s card. Daniel Wrennall in his own evidence insisted that he had not loaned his card to any other driver. He insisted that on each of the occasions identified by the DVSA, he had gone out to relieve and take over driving duties from the other drivers. He accepted that he had not recorded the positional journeys made by him as he was unaware at the time of the requirement.

The former Transport Manager Chelsea Carten confirmed that although she was not formally recorded on the licence until 30 June 2021, she had been working for the operator since the start of April 2021. She confirmed that she had identified issues with driver infringements and had started to address these (as recognised in the Traffic Examiner’s report). Ms Carsten however said she was not aware of any lending of driver’s cards and did not question the account given by Daniel Wrennall and the other drivers.

One of the drivers ([REDACTED]) also confirmed that he drove effectively full time for the partnership on a self-employed basis. Mrs Wrennall confirmed that she knew this was unacceptable, but Mr Pilkington had been resistant to becoming employed. Mrs Wrennall assured me this situation would be rectified.

The impression I gained from the drivers’ evidence was that they were mostly instructed by the Transport Managers in post at the time; Mr Livingstone, Ms Carten or Mr Iddon. The drivers appeared to have limited contact with David and Christine Wrennall. Despite some reticence on the part of the drivers, I also formed the impression that Daniel Wrennall played a large part in their day-to-day management.

Mrs Wrennall explained that she oversaw the operator’s licence and was in the office regularly. She conceded that she did have to step back during the pandemic as she had caring responsibilities within the family. Mrs Wrennall said she relied on Daniel Wrennall as the partnership’s operations manager during that time but since March 2021 she had resumed her more active role.

I reminded Mrs Wrennall of the statement of intent the operator made in 2017 to hold minuted quarterly meetings with the Transport Manger. Mrs Wrennall said these had fallen by the wayside due to the pandemic. I was not provided with minutes to suggest that any such meetings had taken place since 2017.

Mrs Wrennall insisted that she and her husband were the sole partners and that there had been no change of entity. The named partners are the only signatories to the partnership bank account.

I pointed out that in addition to a nominal monthly salary, it appeared that Daniel Wrennall was withdrawing large sums regularly from the partnership account. Mrs Wrennall said that those were some form of repayment for an investment by Daniel Wrennall and Lee Wrennall sometime previously in land purchased by the partnership. Daniel Wrennall confirmed in evidence that he arranged the withdrawals himself as he had access to the partnership bank account in an app on his phone.

Mrs Wrennall said she was planning to be less active in running the business describing her wish to “take my feet off the pedal a bit” and hand over the reins to her sons and the wider family. Mrs Wrennall said she would still supervise the Transport Manager.

Mrs Wrennall was asked about the turnover of Transport Managers over the last two years. She said Mr Howorth had been with the business a long tome but left to establish his own business. Mr Russell was then engaged as an external Transport Manager, but the operator became dissatisfied with that arrangement and advertised for an internal candidate.

Mr Livingstone was appointed after he impressed in interview. He then took leave to deal with a family matter and did not return. When pressed Mrs Wrennall was unable to give me any form of precise date when Mr Livingstone ceased to be the operator’s Transport Manager. I reminded her that Mr Livingstone had sent an email to my office claiming he had resigned on 26 February 2021 as he had a new job. This was while his application to be added to the licence was still being processed; he was not formally accepted on the licence until 15 March 2021. Mrs Wrennall said she was sure his departure was at a later date but again could not be specific. She also maintained she was unaware that Mr Livingstone had left for a new post. Mrs Wrennall could not explain why Mr Livingstone named Daniel Wrennall as the person he held responsible for failing to notify my office of his removal.

Ms Carten gave evidence that when started her employment with the operator at the start of April 2021 she was told there would be a handover from Mr Livingstone, but she never met him and saw no evidence of his presence.

Ms Carten was employed by the partnership after being contacted by Daniel Wrennall who was an acquaintance. Ms Carten was in the process of taking her CPC examination and formally applied to be appointed as Transport Manager once she received confirmation of her successful qualification.

Ms Carten said that when she arrived she found a lack of licence management systems. She could not find any evidence of any previous tachograph analysis and set about rectifying the position. Her efforts were recognised by the Traffic Examiner subsequently and were clearly appreciated by the partnership.

The evidence heard from various witnesses also confirmed that Ms Carten had introduced practices to discipline drivers for infringements and was supported in this by Christine Wrennall.

Ms Carten explained her involvement with the business ended in November 2021 at the same time as the DVSA investigation (Ms Carten had already planned to attend a DVSA interview had she remained in post).

Ms Carten said that she left her post after a disagreement with Daniel Wrennall who wanted to engage a certain individual to drive for the business. Ms Carten had strong objections to the driver being engaged as she had concerns about his compliance. She then discovered that that Daniel Wrennall had nevertheless engaged the driver contrary to her advice. Ms Carten sent Daniel Wrennall a message expressing her concern and asking for a meeting with the partnership to discuss the matters. Daniel Wrennall responded with an intemperate message effectively sacking Ms Carten.

I heard evidence that there were some further discussions involving Mrs Wrennall the next day, but Ms Carten left the operator. I also heard evidence to suggest she may have been considering leaving before the disagreement with Daniel Wrennall but do not consider that is highly relevant.

Daniel Wrennall gave evidence that he was employed as operations manager. He confirmed that he had no set hours of work and worked whatever hours he felt the business needed. I noted he referred to other employees in a proprietorial manner Mr Wrennall admitted he had taken a greater role in managing the business whilst his mother dealt with her caring responsibilities. He conceded as well that he had too much on his plate and needed more management support.

Mr Iddon gave evidence that he had been engaged by the operator after previously working for them as a driver some years ago. Again it was notable that the initial contact with him was made by Daniel Wrennall.

I saw a contract between the operator and Mr Iddon in person. The contract was in proper form, but it appeared payments for Mr Iddon’s services were actually being made to a limited company in his sole control. Mr Iddon and the operator assured me that would be resolved having been raised with them at the inquiry.

Mr Iddon said that on his appointment he found good steps toward compliance had been taken by Ms Carten and he had introduced further systems and improvements. He confirmed the operator had been receptive to his advice and guidance since appointment. Mr Iddon also assured me that if he had any concerns about the operator’s approach to compliance, he would immediately notify my office and remove himself from the licence.

In closing submissions, Ms Hadzik argued there had not been a change of entity. She highlighted that if the allegation of card lending was not proven, the number of remaining drivers’ hours infringements was not excessive, and the infringement rate was tolerable at 6.8%. Ms Hadzik said the operator acknowledged that Mrs Wrennall had taken her foot off the pedal because of her personal circumstances. It was argued there weas no deliberate attempt to breach licensing provisions. Ms Hadzik argued that time has passed, and the operator now has a stable Transport Manager in Mr Iddon and can be considered compliant. In terms of the impact of revocation, it was submitted that the wider business could not be operated without the operator having its own vehicles to meet its transport needs.

6. Findings of fact

The first and potentially most significant finding of fact to record is the one I made having heard the driver conduct hearings namely that I did not find that Daniel Wrennall had permitted his driver’s digicard to be used by other drivers to conceal infringements. I considered that the swift exchange of cards gave rise to a reasonable suspicion on the part of the DVSA that such practices were taking place, and this was compounded by the absence of any contemporaneous record to explain that exchange. However there is no other evidence to support that allegation and all the witnesses who gave evidence at the public inquiry were consistent in denying such activity. By the narrowest of margins, I concluded the suspicion of card lending was not proven on the balance of probabilities.

I did find that there had however been multiple failures to record positional journeys as well as other drivers’ hours infringements during the period from March to June 2021. Whilst the detected and prove infringement rate is not great, I do view it in the context of the operator’s previous regulatory history. I consider it is particularly relevant that the 2017 public inquiry considered an incident of driver card lending. In his decision at the time, DTC Evans commented,

“The circumstances in which Driver…. came to drive on a “second shift”,

and then to create a false record by using another driver’s card were

negligent but wholly and easily avoidable by a reasonably effective operator

with suitable check systems in place before the deployment of drivers and

suitably secure arrangements for managing drivers’ digi-cards;”

Given such a clear steer on what was required, the failure to record positional journeys in 2021 is rendered more serious. The failure to observe the rules on drivers’ hours and tachographs satisfies the ground for regulatory action in section 26(1)(f) of the Act.

Those infringements arose during a period when the operator lacked professional competence. The previous Transport Manager Alan Livingstone claimed he left his post at the end of February 2021 although his departure was not notified to my office by the operator until June 2021 (and only after Mr Livingstone had highlighted the issue). Whilst some effort was made by Mrs Wrennall to suggest Mr Livingstone’s departure was at a later date that she could not specify, I note Ms Carten’s evidence that she found no evidence of Mr Livingstone’s involvement after her arrival in early April 2021. Ms Carten was formally accepted onto the licence as Transport Manager on 30 June 2021

I find therefore that the operator lacked professional competence for the purposes of section 27(1)(a) in the period from April 2021 through to the end of June 2021. This was a material change for the purposes of section 26(10(h) that was not notified to my office until June 2021.

I do not find there has been a change of entity. There is insufficient evidence for me to find that the existing partnership of David Wrennall and Christine Wrennall has been consciously terminated or modified in some way to formally add David Wrennall or Lee Wrennall as partners. If another court or tribunal charged with considering partnership law was asked to consider the arrangements, it may well conclude that the sons had acquired partnership rights. However that is not for me to determine. The question I have considered is whether there has been a material change in entity for the purposes of the operator’s licence and I conclude there has not.

Nevertheless, I am concerned about the operator’s good repute. I find that David Wrennall and Christine Wrennall as partners are not taking proper responsibility for the management of the licence. The position appears to be conceded for David Wrennall. It was also accepted that Mrs Wrennall had ben distracted by personal commitments during the pandemic. Although Mrs Wrennall sought to persuade me that she has resumed a more active role, I was not convinced that she was effectively managing the buisness. There were a number of issues (including the departure of Mr Livingstone) where she lacked a grip on the detail. It was also notable that at different points during the course of her evidence she spoke about wishing to step back and the phrase about taking her foot off the pedal was used more than once. I do not consider that was solely in terms of future aspirations; I find it does reflect her current approach.

I find the day-to-day control of the transport aspect of the business is primarily undertaken by Daniel Wrennall. I find he has the partners’ authority to engage and dismiss staff as evidenced in his approaches to Ms Carten and Mr Iddon. Daniel Wrennall’s dismissal of Ms Carten was unacceptable both in relation to the intemperate language used and the reasons. I find Daniel Wrennall acted to remove Ms Carten as TM as she had provided robust advice to him about a matter that could have impacted on licence compliance. I also note that Mr Livingstone sought to point the finger at Daniel Wrennall for the failure to notify my office of his departure as TM.

The previous concerns about Daniel Wrennall’s conduct and ability to manage a licence compliantly have been well documented in the previous public inquiries. I refer to the following extract from the 2017 decision of DTC Simon Evans:

“There was a failure on the part of the partners to manage (or a lack of action)

the activities of their transport manager [i.e. Daniel Wrennall].

I consider that failure has occurred again in relation to the partners ensuring that role Daniel Wrennall undertook as operations manager delivered licence compliance. I draw attention to the fact that as soon as Daniel Wrennall’s disqualification as Transport Manager ended, he submitted an application to be reappointed to this licence. Although that was later withdrawn, I consider that application is telling in terms of what it says about Daniel Wrennall’s wish to control the licence. I consider it is highly likely that Daniel Wrennall’s approach to managing the business has been a factor in the unacceptably high rate of Transport Manager changes. I find that in turn directly contributed to the issues that arose in 2021 around management of driver’s hours.

I find there has been a failure to honour the statement of intent given at the 2017 public inquiry that management meetings would be held at least quarterly, and minutes kept. The operator conceded that this has not happened over the last 2 years, but I have not seen any evidence of minutes to show that that they have happened at all over the 5 years. This satisfies the ground for regulatory action in section 26(1)(e) of the Act.

7. Relevant considerations

Having determined the grounds for regulatory action are made out, I have gone on to consider the balancing exercise to decide what form that action should take.

I make it clear at the outset that had I found that drivers’ card lending had taken place, the licence would have been revoked.

As positive features I recognise that there does now appear to be effective management control and appropriate systems in place. I also find that sufficient and effective changes have been made. If these are sustained, I would have confidence in the operator going forward. I also give credit to the operator for cooperating with the DVSA investigation.

I balance this with the following negative features:

• I am satisfied for a significant period up to around June 2021, the operator had ineffective management control and insufficient systems and procedures in place to prevent operator licence compliance failings.
• In particular, there were ineffective procedures in place to detect falsification, and drivers’ hours infringements
• The infringements and the evidence I heard from the drivers indicated that prior to Ms Carten’s arrival there were ineffective monitoring and disciplinary procedures in place.]
• Finally I give considerable weight to the operator’s previous history of attendance at public inquiries and the previous unequivocal warnings given.

I consider the negative features outweigh the positive features and applying the starting points in the Senior Traffic Commissioner’s Statutory Document No. 10 on ‘The Principles of Decision Making and the Concept of Proportionality’, I determine that regulatory action in the serious to severe category is required.

I have then considered the Priority Freight question, and, on balance, I have concluded that I can trust the operator to be compliant in future. This is on the basis of the changes made since June 2021 and the appointment of Mr Iddon as Transport Manager. However, any confidence I derive from the operator’s current level of compliance and the assurances given at the public inquiry is tempered by the history of the licence over the last 8 years. A pattern appears to be developing whereby the operator becomes non-compliant and is called to a public inquiry. Sufficient changes are made ahead of the public inquiry and the licence avoids revocation. Around 4 years later evidence of non-compliance arises again, and the cycle is repeated. This cycle has been seen in 2013, 2017 and now in 2022. The operator must now demonstrate that it will break this cycle.

I therefore draw back from revocation, but I consider that robust regulatory action is required. The previous warnings and the curtailment ordered in 2017 have proven to be ineffective in ensuring the operator maintains a compliant approach. Action beyond the measures previously applied is now required.

I determine that a period of suspension whereby the operator is deprived of the right to use its own vehicles for transport purpose is appropriate. This should focus the partners’ minds on the impact for the business if they were to permanently lose the right to operate vehicles. That is the inevitability should they allow the non-compliance to develop again.

I have taken account of the impact that even a short suspension will have on the business and the fact that the timing of the public inquiry means the action will fall into a busy period for an operator linked to agriculture. I consider that the need for such regulatory action for the reasons described above outweighs such concerns. However, having initially considered a suspension for 28 days, I will reduce this to 14 days in recognition of the impact on the wider business.

The vehicles in the operator’s possession must not be used on any other licence during the period of suspension.

I record an undertaking for an audit to be completed in 6 months’ time with the clear expectation that confirms the assurances I was given at the public inquiry have been realised. I also record a further undertaking to ensure the operator addresses the apparent issue with the use of self-employed drivers.

I confirmed the appointment of Mr Iddon as Transport Manager at the conclusion of the hearing on 13 June 2022. Mr Iddon’s involvement with the licence post-dated the issues of concern above and there is evidence of his positive influence already. The findings made in relation to the operator are no reflection on Mr Iddon’s good repute and professional competence. Whilst Chelsea Carten’s role in the public inquiry was only as a witness, I also record that I heard nothing that called into question her good repute or professional competence either.

[REDACTED]

Gerallt Evans

Traffic Commissioner for the North West of England

24 June 2022