Decision

Decision for E P Skips Ltd (OD2038991)

Published 2 March 2023

0.1 In the West Midlands Traffic Area

1. Written Decision of the Deputy Traffic Commissioner

1.1 E P Skips Ltd (OD2038991)

2. Background

EP Skips Ltd holds a restricted goods vehicle operator licence, granted in December 2020, for three vehicles. There are two vehicles in possession. The directors of the company are Edgar Proctor and Edward Proctor. The licence was granted after the company had given an undertaking to provide evidence of finances over the period 1 January to 31 March 2021 by 30 April 2021. The company failed to comply with this undertaking and had to be chased before it provided satisfactory evidence of finances.

3. DVSA report

On 20 January 2022, DVSA carried out a roadside check on the operator’s vehicle MX13 JVY and found that the vehicle’s MOT had expired on 31 December 2021. The vehicle was given an S-marked prohibition (denoting a serious failure of the maintenance system) for an ABS warning light indicating a fault, an inoperative indicator, a dirty and illegible registration plate, a worn tyre and an emissions light indicating a malfunction. None of these defects was recorded on the driver’s defect report earlier that day.

A subsequent investigation by DVSA found in addition that:

• the vehicles were not being given preventative maintenance inspections at the promised 8-week intervals. Only two inspection records were available for each vehicle in the 13 and 10 month periods during which the two vehicles had, respectively, been on the licence at the time of the DVSA visit on 31 January 2022;

• the driver defect reporting system was clearly ineffective. The few preventative maintenance inspection reports which existed identified numerous defects which should have been identified by drivers, for example tyres cut to cords, ABS light on, brake wear indicator light on, reverse light inoperable, wiper blades split, insecure repeaters, insecure cab steps, both front side lights inoperable. When drivers did report defects, these defects were not marked as rectified.

4. Public inquiry

Concerned by this report, I called the company to a public inquiry. The call-up letter was sent on 14 June 2022, with the date of the inquiry set for 13 July 2022. The call-up letter stated that evidence of finances, maintenance and drivers’ hours records must be submitted by 6 July 2022.

No evidence of finances or other records were received by 6 July, or subsequently. On Monday 4 July my clerk received an email from Edgar Proctor saying that he had returned from holiday on Friday 1 July and received “all this” with not much time to sort it out. He stated that the business would be sold at the end of July and asked whether it was an option to surrender the licence. In a subsequent phone call my clerk advised Mr Proctor nevertheless to attend the inquiry, because his disqualification from holding a licence was one of the issues due to be addressed: she told him that he could submit the required records by email if he wished.

20 minutes before the inquiry was due to start, another colleague in the office telephoned the company to see if it would be attending. She spoke to director Edgar Proctor who said that he was ill with Covid and would be unable to attend. He had been abroad from 9 June and had not seen the call-up letter until 4 July. He stated that he had not sent in the required records by email due to his illness. He asked whether he should keep his phone with him during the day in order to find out whether the licence had been revoked: my clerk thought that this was an odd request coming from someone who was apparently so ill he could not leave the house.

My clerk asked why the other director, Edward Proctor, could not attend. Edgar Proctor said that Edward Proctor was a director in name only and had nothing to do with the transport side of the business. My clerk reminded him that Edward Proctor was a statutory director of the company and so equally responsible, legally, for the good management of the company.

No one from the company attended the public inquiry today, 13 July 2022. I have therefore proceeded to consider the matters on the basis of the papers before me.

5. Findings

After considering the evidence, I have made the following findings:

• the operator has failed to fulfil its promise, given on application, that vehicles would be given safety inspections every 8 weeks. Both vehicles have been given only two such inspections each despite having been on the licence for 10 and 13 months respectively at the time of the DVSA visit on 31 January 2022 (Section 26(1)(e) of the 1995 Act refers). I note that, in his reply to DVSA’s report, Edgar Proctor apologised for failing to adhere to the “12 week period”, which suggests that he does not know what inspection period he signed up to on application;

• the operator has failed to fulfil its undertaking to ensure the lawful operation of vehicles (Section 26(1)(f) refers. A vehicle was operated without an MOT;

• the operator has failed to fulfil its undertaking to keep vehicles fit and serviceable. A vehicle was issued with an S-marked prohibition in January 2022 for numerous defects. Preventative inspection sheets also show that vehicles have been on the road with numerous defects which, if detected at the roadside, would have resulted in prohibitions (Section 26(1)(c)(iii) and (f) refers);

• the operator has failed to fulfil its undertaking to ensure that drivers would report defects in writing. Drivers have clearly been failing to carry out effective walk-round checks and to record obvious defects;

• because no evidence of finances has been provided, I am unable to conclude that the company has sufficient finances to support its licence (Section 26(1)(h) refers).

Edgar Proctor’s response to DVSA accepted that “I have not managed the operation as I should have as my focus has been on getting the vehicles earning money”. It is not acceptable for an operator to ignore its undertakings and commitments regarding compliance and legal operation in order to prioritise making money. As well as posing a threat to road safety, such an approach constitutes unfair competition against those businesses which comply with the law. Because of the conscious decision to prioritise commercial concerns ahead of legality I find that EP Skips Ltd is not a fit company to hold an operator’s licence.

I considered the issue of Edgar Proctor’s absence abroad and subsequent illness. Even if I accept that he has genuinely been unable to attend today’s inquiry (although no evidence has been provided), there is no reason why the other director, Edward Proctor, could not have attended. Equally, there is no reason why documents and records could not have been submitted. EP Skips Ltd is a limited company with two directors, and it is not unreasonable to expect it to make arrangements to receive and deal with correspondence if one of its directors is abroad for a lengthy period of time. Clearly it has continued to manage and operate its vehicles and skips while Edgar Proctor has been away: it could also therefore have managed correspondence with the regulatory authorities.

6. Balancing act and conclusion

On the negative side of the balance are the findings outlined in paragraphs 9 and 10 above. Because the company has not attended the inquiry and failed to submit records seven days in advance despite being directed to do so, there is nothing to put on the positive side of the balance.

Given the wide-ranging failure to maintain the vehicles properly, the illegal operation of a vehicle out of MOT and the serious failure of drivers to carry out effective walk-round checks, and given the company’s admission that it put commercial consideration before compliance, there exists no basis on which I could be confident that the company will comply in future (the Priority Freight question). The company therefore deserves to go out of business (the Bryan Haulage question) if that is the effect of the revocation of its licence.

7. Decisions

7.1 Revocation of the licence

In the light of the above considerations, I am revoking the company’s operator licence with effect from 0001 hours on 10 August 2022, pursuant to Section 26(1)(c)(iii), (e), (f) and (h) of the 1995 Act.

7.2 Disqualification

I have considered whether to disqualify, under Section 28 of the 1995 Act, the company and its directors Edgar Proctor and Edward Proctor from holding an operator licence in the future. Having performed the same balancing act as described above, I have decided to do so. In deciding upon the length of the disqualification, I have taken account of paragraph 103 of the senior traffic commissioner’s Statutory Guidance Document 10. This posits a starting point of between one and three years for a first public inquiry (which this is). Given the significant failings in the way in which this licence has been managed and the flouting, right from the start of the licence, of the undertakings given, I have decided upon a disqualification period of two years, in the middle of the range stipulated by the senior traffic commissioner, as being appropriate and proportionate to the degree of the non-compliance found. If they ever wish to re-enter the industry, Edgar and Edward Proctor should use this period to acquire the necessary knowledge, skills and will to operate a compliant operation in the future.

If they wish to argue for this disqualification to be time-limited or cancelled, Edgar and Edward Proctor may request a hearing before a traffic commissioner

Nicholas Denton

Deputy Traffic Commissioner

13 July 2022