Decision

Decision for Hello Skips Limited

Published 18 October 2023

0.1 IN THE  SOUTH EASTERN AND METROPOLITAN TRAFFIC AREA

1. TRAFFIC COMMISSIONER DECISION

2. HELLO SKIPS LIMITED

2.1 OK2006028

3. REASONS

3.1 Background and Approach

The full history is set out in the public inquiry bundle and the legal basis for any adverse findings are set out in the call-in letter dated 20 January 2023. I do not repeat the evidence here save where it is material to my decision on each aspect.

As per 2013/008 Vision Travel International Limited and 2013/061 Alan Michael Knight I am entitled to treat the conduct of a sole Director Mr Charles Willard effectively as the conduct of the limited company and repute or fitness is determined accordingly. As well as the operator licensing obligations, a company director must exercise his or her statutory duties of demonstrating independent judgement, skill, care, and diligence, as per sections 173 and 174 Companies Act 2006.

4. The Public Inquiry including additional matters.

The operator was sent a ‘propose to revoke’ letter after it failed to engage with DVSA’s attempted investigation. The public inquiry was called at the request of Mr Willard to avoid revocation. The case was originally listed for 13 March 2023, after a further investigation by DVSA at my request concluded. I granted an adjournment when Mr Willard produced evidence of a pre-booked trip. At the same time, he provided dates to avoid for his proposed transport manager Ms Nightingale for any relisting. The Inquiry was listed for 28 March 2023 as a date convenient to all parties. Since 26 January 2023 (see page 8 PI bundle), the only communication (prior to 09.35 on the day of the hearing) has been from Ms Nightingale, withdrawing her nomination as transport manager. The reason given is that there was a meeting arranged to discuss the public inquiry which was cancelled and thereafter Mr Willard failed to communicate with her.

On 24 February 2023 my office served by way of an ‘additional matters’ letter a copy of the resignation notification to the Operator, together with DVSA evidence regarding a roadside encounter on 12 January 2023. On 17 March 2023 my office chased the pre-public inquiry documentation but received no response. As the public inquiry started at 10.10 the only communication was a telephone call from Mr Willard at 09 35 this morning and a follow up e mail received at 10.01. Mr Willard said by telephone that he would not be attending and that he wanted to surrender the licence. Mr Willard confirmed that he was aware that a decision could be made in his absence to include (i) not accepting the surrender; and (ii) the possibility of revocation and disqualification. Mr Willard said that he was aware of this. The caseworker’s contemporaneous telephone note is added to the PI evidence marked Exhibit “PICD1”. The follow up e mail is added to the PI evidence marked Exhibit “PICD2”. The reason for the surrender request is the increase in costs and downturn in work due to the current economic situation (no SUR form is attached). Mr Willard admits that it could not cover the financial standing for a Standard National Licence. Mr Willard does not refer to whether it is met for a Restricted Licence. Nor does he provide any explanation for not complying with the directions in the call in letter. Mr Willard simply states he will send in some bank statements and evidence of how he has been operating since the DVSA investigation  but no timescale is given. He requests 14 days ‘grace’ so that he can collect in skips.

At the start of the hearing, I confirmed my decision that it is in the interests of justice to proceed in Mr Willard’s absence in light of his failure to engage, save to request surrender. There is no evidence that if I provided a short adjournment Mr Willard would attend or lodge any evidence in advance. I also refused the application to upgrade to a standard national Licence because the application has been incomplete since 23 February 2023 (confirmed in paragraph 1 above). I notified that the decision on whether to accept surrender would follow at the end of the evidence.

5. The Evidence, Consideration and Findings

Traffic Examiner Rowlands (‘TE’) and Vehicle Examiner Richards (‘VE’) attended via Microsoft Teams. On 27 March 2023, the VE lodged an updated DVSA Compliance history which is added to the PI evidence marked Exhibit “PIVE1”. Both Examiners adopted their PI statements in the hearing bundle unamended and both confirmed they received nothing from Mr Willard in advance of the hearing. The VE had a copy of VE Timothy Collins section 9 statement for the roadside encounter on 12 January 2023 but was not involved in the prohibition. The VE confirmed that the MOT failure on 1 February 2023 for multiple safety critical items was the Operator’s attempt to clear the prohibition from 12 January 2023. The TE confirmed that the traffic side of the encounter on the same date was clear. The TE believes Hello Skips is still operating if it still owns the vehicles as she regularly sees SV61DYF in the area. On Wednesday 15 March 2023 at 08:36 MX07GEU was observed on Chalcroft Lane in Bognor Regis heading towards the A259. Three vehicles (including SV61DYF and MX07GEU) remain on the O Licence and Mr Willard’s e mail this morning indicates ongoing transport operations in some guise.

The VE and TE reports are detailed, and evidence based. Mr Willard’s responses to DVSA, limited as they were, did not materially challenge their contents. Mr Willard has not attended today to depart from or add to his previous responses. Both Examiners gave their updates in a fair and measured way. I accept their evidence. Accordingly, I make the following adverse findings by virtue of the 1995 Act:

• Use of an unauthorised operating centre (Neville Road, Bognor Regis) for a period, which continued even after DVSA told the Operator to cease – section 7(1) and 26(1)(a).

• Breach of a condition on the Licence since grant in 2018: Failing to fit white noise/broadband reversing alarms until August 2022 – section 26(1)(b).

• Prohibition issued on 12 January 2023 – section 26(1)(c)(iii).

• False statement: 8 weekly inspection intervals not adhered to – section 26(1)(e).

• Breaches of undertakings on the Licence to have systems in place to ensure vehicle roadworthiness and retain records, including only one PMI sheet produced across 15 months, inadequate driver daily walk round check system, fitter inspecting with inadequate facilities and competence questionable – section 26(1)(f).

• Breaches of undertakings on the Licence to have in place systems to ensure the rules relating to drivers hours, tachographs and working time directive are complied with and retain records, including failing to produce raw data or all driver details and no evidence of driver licence checks – section 26(1)(f).

• Failure to notify a material change in the financial position between September 2022 and March 2023 – section 26(1)(h).

The Upper Tribunal case of 2013/082 Arnold Transport Ltd provides a useful foundation for my conclusions to this case. In particular I have regard to the following:

1. The grant of an operator’s licence does not mean that an operator can then proceed on the basis that the requirements that must be met in order to obtain a licence can thereafter be disregarded.  In our view it is clear both from the terms of the 2010 Act and from Regulation 1071/2009 that these are continuing obligations, which an operator is expected to meet throughout the life of the licence. …

2. The Tribunal has stated on many occasions that operator’s licensing is based on trust.  Since it is impossible to police every operator and every vehicle at all times the Department in Northern Ireland, (and Traffic Commissioners in GB), must feel able to trust operators to comply with all relevant parts of the operator’s licensing regime.  In addition other operators must be able to trust their competitors to comply, otherwise they will no longer compete on a level playing field.  In our view this reflects the general public interest in ensuring that Heavy Goods Vehicles are properly maintained and safely driven.  Unfair competition is against the public interest because it encourages operators to cut corners in order to remain in business.  Cutting corners all too easily leads to compromising safe operation.

3. It is important that operators understand that if their actions cast doubt on whether they can be trusted to comply with the regulatory regime they are likely to be called to a Public Inquiry at which their fitness to hold an operator’s licence will be called into question.  It will become clear, in due course, that fitness to hold an operator’s licence is an essential element of good repute.  It is also important for operators to understand that the Head of the TRU is clearly alive to the old saying that: “actions speak louder than words”, (see paragraph 2(xxix) above).  We agree that this is a helpful and appropriate approach.  The attitude of an operator when something goes wrong can be very instructive.  Some recognise the problem at once and take immediate and effective steps to put matters right.  Others only recognise the problem when it is set out in a call-up letter and begin to put matters right in the period before the Public Inquiry takes place.  A third group leave it even later and come to the Public Inquiry with promises of action in the future.  A fourth group bury their heads in the sand and wait to be told what to do during the Public Inquiry.  It will be for the Head of the TRU to assess the position on the facts of each individual case.  However, it seems clear that prompt and effective action is likely to be given greater weight than untested promises to put matters right in the future.

Between December 2021 and December 2022, the Operator failed to properly engage with DVSA extending by many months the time needed to assess compliance with the Licence conditions and undertakings. The failure to supply data and records prevented a complete assessment. Mr Willard referred to a burglary leaving records in a mess but at no time did he notify my office that he was unable to meet the undertaking to retain and produce records. The failings in relation to raw data may cast doubt whether other records (traffic or maintenance) were ever available, but he has not attended to answer my questions.  Mr Willard never produced anything else from the maintenance contractor (not even a letter confirming PMI dates). There are pockets where Mr Willard is helpful and co-operative but that is not good enough. This only happened after the propose to revoke letter from my office. Even then instead of responding to the MIVR in no more than 14 days and in a ‘timely and comprehensive’ way, it took more than 2 months and only after the VE chased. The response is predominantly future assurances. The delay in that reply meant a delay in the DVSA case being referred to my office. As set out in paragraphs 7 and 8 above Mr Willard failed to comply with any of the hearing directions comprehensively set out in the call-in letter dated 20 January 2023, in terms of recent statutory records, information, and financial evidence. As late as 10.01 on the morning of the hearing I am being told documentation will follow and a period of run off is requested. I conclude that Mr Willard’s approach to DVSA, my office and this Inquiry is disingenuous. The Appellate Tribunal authorities (see Chapter 11 Section 4 of the 2021 Appeals Digest: Failure to respond and Failure to Produce Records) have been robust over many years that Traffic Commissioner’s should draw adverse conclusions, by way of example the then Transport Tribunal 2005/472 J McNamara and the Upper Tribunal in 2015/040 Tacsi Gwynedd Limited. Further, I find that Mr Willard’s last minute attempt to surrender the Licence is part of that pattern of duplicitous behaviour, seeking to avoid adverse findings. It follows that I do not accept a surrender of the Licence (paragraph 2 above).

Mr Willard has not produced any evidence to this Public Inquiry to demonstrate current compliance and therefore I rely on the DVSA record. An MOT is a snapshot of basic safety. An Operator knows that the vehicle will be inspected by a DVSA Examiner. There is no good reason for a vehicle to fail, save in exceptional unlucky single item circumstances. On 12 January 2023 vehicle SV61DYF received a roadside PG9D. This in itself is a warning to an Operator that its maintenance systems remain deficient and need review. It is incomprehensible how an Operator with this history and knowing it has been called to a Public Inquiry, allows SV61DYF to be presented for MOT in an unsafe condition. The vehicle failed on 6 items including steering, additional braking devices and secondary brake performance. There was also an advisory for brake systems and components. When represented for test on 15 February 2023 that advisory item remained. The VE told the Inquiry if records were sent in, he would expect evidence that the advisory was rectified – advisory means requires replacement or adjustment within a short period of time. The vehicle may well now be unsafe. Mr Willard told the VE in December 2022 that the Operator would change maintenance contractor. VOL does not support this actually happening.

There are few positives. This is the Operator’s first Public Inquiry since grant but in serious cases that is not a bar to revocation. The Licence application was heard at PI in 2018 for amongst other things environmental considerations, one of which has been persistently breached and others cannot be checked as it failed to produce raw data. I have already set out that there was some co-operative and helpful engagement with DVSA but I give it limited weight due to the context. Mr Willard attended a one-day operator licence seminar on 28 September 2022. I give this limited weight as it does not appear to have heightened Mr Willard’s awareness of the need to communicate effectively with DVSA or my office or raised his standards and regard in terms of safety. For similar reasons I give limited weight to the suggestion a transport consultant was engaged. Mr Willard’s responses to DVSA included promises of future compliance but apart from a clear traffic encounter on 12 January 2023 there is no evidence of improvement.

6. Conclusion

When I pose the question is this an Operator that I can trust moving forward the answer must be ‘no’. The evidence that Mr Willard cannot be trusted is set out above. That lack of trust started the day the Licence was granted at Public Inquiry by ignoring the reversing alarms condition and continues right through to the issues before this Inquiry which he has chosen to ignore until 09.35 on the day of the hearing. Although it is a Restricted Licence it should be a standard Licence and I pose the question does this Operator deserve to be put out of business? The answer is ‘yes’. It has posed for at least 15 months (and on balance probably far longer) and continues to pose a significant risk to road safety. The failure to take the time and spend the money to ensure safety, together with the failure to allow a finance check undermines the level playing field principle. That level playing field is there to benefit all operators. An Operator that seeks to cut corners poses a risk that others might be tempted to follow and chaos arises.

In light of the adverse findings, the serious and risky behaviours that sit behind them and the lack of meaningful positives mean that revocation is the only appropriate and proportionate outcome. Accordingly, I have reached the decision set out in paragraph 3 above. I have not allowed a period of run off due to my stated safety concerns. I have only allowed until tomorrow night for this decision to be taken on board by Mr Willard. Mr Willard knew the date of the hearing and should have already made contingency arrangements for any skips still with customers. From 23:45 on 30 March 2023 the vehicles on this list will be referred to DVSA for impounding markers until lawfully specified elsewhere as is usual with revocation cases.

7. Disqualification

The relevant case law and principles are set out in Chapter 13 of the Upper Tribunals Digest of Traffic Commissioner Appeals (2021) and Statutory Document No. 10 paragraphs 64 – 69 and 107 – 109. Disqualification is a potentially significant infringement of rights, and the Upper Tribunal has indicated that whilst there is no ‘additional feature’ required to order disqualification the Operator/individual are entitled to know the reasons. In 2010/29 David Finch Haulage the then Transport Tribunal said: 

“The principles that derive from these and other cases on the point can be simply stated. The imposition of a period of disqualification following revocation is not a step to be taken routinely, but nor is it a step to be shirked if the circumstances render disqualification necessary in pursuit of the objectives of the operator licensing system. Although no additional feature is required over and above the grounds leading up to revocation, an operator is entitled to know why the circumstances of the case are such as to make a period of disqualification necessary. Additionally, periods of disqualification can range from comparatively short periods to an indefinite period, and can be confined to one traffic area or be extended to more than one”. 

As per 2009/011 Katherine Oliver and J W Swan & Partners, Catch22Bus Limited, Philip Higgs v The Secretary of State for Transport [2019] EWCA Civ 1022:   

“The case law indicates a general principle that at the time the disqualification order is made that the operator cannot be trusted to comply with the regulatory regime and that the objectives of the system, the protection of the public and fairness to other operators, requires that the operator be disqualified. Each case must turn on its own merits”. 

The absence of any regard by Mr Willard for anything other than his commercial needs undermines the bedrock principles for which the operator licensing regime exists – road safety and fair competition for the benefit of all Operators. The fact that approach continued up to 28 March 2023 is indefensible. It is appropriate and proportionate to send a message around protecting road safety and fair competition - Operators cannot make promises at Public Inquiry to obtain a Licence, disregard some or all of them at will from day one, and decide when (if at all) to engage with DVSA and Traffic Commissioners.  It would be an affront to other compliant and law-abiding operators if, in such a case as this, an order of disqualification is not made. 

In 2014/40-41 C G Cargo Limited and Sandhu the Upper Tribunal drew attention to the suggested range of 1 to 3 years for a first Public Inquiry. As to the appropriate length of disqualification in this case I refer to the helpful guidance in 2012/044 Highland Car Crushers Ltd, 2012/56 & 57 Deep Transport Ltd & Midland Transport Ltd. Mr Willard bears a high degree of responsibility for paying lip service to the requirement for systems which are meant to protect lives. Lorries are lethal weapons in the wrong hands, and I am entitled to act before “death or serious injury of damage has resulted” from Mr Willard’s risky and reckless approach to safety. The adverse findings make this a serious case and I set the starting point at 3 years. There are no features to this case which persuade me to move from that starting point. Accordingly, I have reached the decision set out in paragraph 4 above.

I have intentionally included section 28(4) of the 1995 Act with the Transport Tribunal decision 2005/457 Leslie John Ings trading as Ings Transport approved more recently in 2015/078 Black Velvet Travel Limited, Western Greyhound Limited and Michael John Bishop in mind. The Upper Tribunal had regard to the earlier decision and in particular that a traffic commissioner must “ensure that the purpose of an order is not undermined or defeated by a disqualified person becoming involved with the management of another operator’s licence.” Mr Willard became a director of EKO Hire Limited (OK2044922 Standard National) on 10 February 2023, and he was added via online self-service on 19 February 2023. The lack of engagement in this Public Inquiry together with the proximity of his involvement in OK2044922 may have been an attempt to circumvent these proceedings. Even if he is removed as a director there is a risk of Operators being persuaded to ‘front’ for Mr Willard and those who are tempted need to understand the consequences of doing so. ‘Fronting’ was helpfully defined in the case of 2012/071 Silvertree, where the Upper Tribunal stated: ‘.. ‘fronting’ occurs when appearances suggest that a vehicle, (or fleet), is being operated by the holder of an operator’s licence when the reality is that it is being operated by an entity, (i.e. an individual, partnership or company), which does not hold an operator’s licence and the manner in which the vehicle is being operated requires, if the operation is to be lawful, that the real operator holds an operator’s licence.’ The case authorities are clear that those found to be ‘fronting’ should expect a finding of loss of good repute.

A copy of this decision will be sent contemporaneously to OK2044922 and its nominated Transport Manager to ensure that the impact of this decision is understood, and necessary steps taken. This will be followed up by OTC.

8. DECISION confirmed for purposes of publication.

The application to upgrade OK2006028 to a standard national licence is refused.

The request to surrender the licence is refused.

Pursuant to adverse findings under section 26 (1) (a), (b), (e), (f) and (h) of the Goods Vehicles (Licensing of Operators) Act 1995, Licence OK2006028 is revoked with effect from 23:45 on 30 March 2023.

Pursuant to section 28(1), (4) and (5) of the 1995 Act, Hello Skips Ltd and its sole director, Mr Charles Willard, are disqualified from holding or obtaining an operator’s licence or being engaged in the management, administration and/or control of any entity in Great Britain which holds or obtains such a licence for a period of 3 years with effect from 23:45 on 30 March 2023.

MISS SARAH BELL 

29 MARCH 2023