Decision

Written confirmation of a decision for Benjamin Ness Davies (OG1100926)

Published 16 November 2022

0.1 In the Welsh Traffic Area

1. Written Confirmation of a Decision of the Traffic Commissioner

1.1 Benjamin Ness Davies (OG1100926)

2. Background and Public Inquiry

The operator was granted a Restricted goods vehicle licence OG1100926 authorising 3 vehicles on 3 February 2011. Following the Driver and Vehicle Standards Agency (‘DVSA’) investigation whichlead to this Public Inquiry, the operator submitted a variation application on 18 April 2022 to increase vehicle and trailer authorisation to 5 vehicles and 2 trailers, and to upgrade the licence to a Standard National licence. The variation application was partially granted on 15 June 2022 to change the licence type to Standard National.

An unannounced investigation visit was carriedout by Vehicle Examiner (“VE”) Lee Rees and Senior Traffic Examiner (“STE”) Simon Jenkins of the DVSA in March 2022. Their reports identified numerous shortcomings, including in the following areas: vehicles being left other than at the Operating Centre; no evidence of any Periodic Maintenance Inspections (“PMIs•) so VE had to obtain the few available from the maintenance contractor (whohad not been notified); extended PMIinterval; no forward plannerNOR/emissions; repeat driver detectable defects found and no evidence of driver defect report system as books thrown away; no evidence of wheel or load security. The VE issued 2 Delayed PG9s and 10 inspection notices during the visit: brake reservoir insecure, 1 out of 2 tank straps broken etc. Vehicles were found to be out of annual test between March and November 2021, October and December 2021, October 2021 and January 2022. There was no evidence of driver licence checks, no record of any driver training, no DCPC record, no download of driver cards or vehicle units (no ‘company’ card), no employment contracts/disciplinary procedures and no WTD records.

Benjamin Ness Davies, sole trader operator, was called to a Public Inquiry in Pontypridd on 7 September 2022 to consider these shortcomings. He attended, represented by nm Culpin of Aaron and Partners LLP. I was also asked to consider a variation application to increase authorisation from 3 vehicles and O trailers to 5 vehicles and 2 trailers. As requested in the call-in letter, the operator submitted recent maintenance and drivers’ hours documents in advance of the hearing and updated statements were prepared by DVSA commenting on these documents. I received submissions in advance of the inquiry from Tim Culpin, with statements from Benjamin Davies and Bethany Cleminson, the new Transport Manager. The operator did not dispute any of the DVSA evidence included in the Public Inquiry Brief and update statements from the examiners. I heard evidence at the inquiry from Benjamin Davies and from Beth Cleminson. During cross examination by me as to the content of an OLAT course that Benjamin Davies was said to have attended (with certificate produced by him in advance of the hearing) he admitted that he had lied about his attendance at that course. This could not have been anticipated by Mr Culpin, who took further instructions from his client during a short adjournment of proceedings, and I then heard final submissions before reserving my decision.

Later that day, Mr Culpin contacted my office with additional evidence obtained via the transport manager from the consultancy firm which was said to have delivered the training. I indicated that I would accept further evidence in the form of supplementary witness statement from Mr Davies and from the training provider, Adam Jones. These additional statements, dated 8 September, were provided lo my office by Mr Culpin along with Bundle 3 comprising relevant documentary evidence referenced in those statements. The statements confirmed that the training had been provided by Adam Jones on a one-to-one basis on 7 April 2022. Benjamin Davies stated that he had panicked during his evidence at the Public Inquiry due to nerves. He had confused the OLAT training with another course that he was due to attend online, but which he had failed to log into successfully. In view of this new evidence, I decided to reconvene the public inquiry. Thereconvened hearing was held at Caernarfon on 6 October 2022, when I heardevidence from Benjamin Davies and further submissions from Mr Culpin, who again represented him at that hearing.

3. Reasons

Having carefully considered all the evidence before me I made adverse findings under section 26[1)(a) of the Act -vehicles operated from an unauthorised operating centre; under section 26(1)(b) of the Act - operator failed to notify change in maintenance provider; under section 26(1)(c)(iii) of the Act - prohibitions issued by DVSA in the past 5 years; section 26(1)(e) of the Act - statements made when applying for the licence have not been fulfilled (that vehicles would be inspected at the intervals the operator stated they would be, that the operator would notify any Changes in maintenance arrangements and that vehicles would be kept when not in use at the authorised operating centre): and under section 26(1 )(f) of the Act - undertakings signed up to when the licence was applied for have not been honoured (vehicles and trailers would be kept fit and serviceable; that the operator would observe the rules on drivers’ hours and tachographs and keep proper records; that the operator would keep records for 15 months of driver defect reports, safety inspections and routine maintenance and make them available on request; and that drivers would report promptly any defects or symptoms of defects that could prevent the safe operation of vehicles and that defects would be promptly recorded in writing).

I carefully considered the question of repute in this case. During the public inquiry hearing on 7 September Benjamin Davies admitted that he had lied about his attendance at an OLAT course during cross examination by me about what he had learned on that course. This came as a surprise to his solicitor who took instructions during an adjournment of those proceedings and had to revise his submissions based on that evidence. I reserved my decision but decided to reconvene the inquiry hearing to explore the question of repute in the context of Mr Davies’ fitness to hold a licence in view of further witness statements received post inquiry. I considered Mr Davies’ second witness statement and his oral evidence at the reconvened inquiry hearing and accepted his evidence that he had panicked during the initial inquiry hearing and gave evidence then that was incorrect. I took into account the fact that, immediately following that hearing, he appreciated that the OLAT training that he had done with Adam Jones had obviously not sunk in sufficiently and booked onto another training course, in person, provided by Logistics UK. On the evidence presented at the reconvened hearing, I was satisfied that Benjamin Davies had done what he could to rectify that by attending an OLAT course on 20 September 2022, and that he had learned a great deal from ii, not just from the training provider but from the other attendees involved in the haulage industry.

In conducting the balancing exercise to determine appropriate regulatory action, I considered the negative features of this case. These are the ineffective management control and insufficient systems and procedures in place to prevent operator licence compliance failings, including vehicles not being kept at the authorised operating centre. There was ineffective driver training, insufficient monitoring and disciplinary procedures in place, with no training with regard to the conduct of the driver watkaround check and load security. There were no analysis procedures in place to detect drivers’ hours and WTD infringements and insufficient procedures in place to ensure appropriate use of tachograph records by drivers. However, on the positive side the operator fully co-operated with the DVSA investigation, there were no road safety critical defects or ‘S” marked prohibitions and there had been no previous unsatisfactory maintenance visits or regulatory action. II was evident that the operator took swift action following the DVSA visit to address the compliance breaches identified. He had upgraded the licence to a standard national and employed a very efficient and impressive transport manager, Bethany Cleminson, who I heard from during the inquiry. He had also employed transport consultants to assist with compliance. Ms Cleminson is clearly on top of what needs to be done and has introduced new systems and procedures which were shown to be working, given the evidence of the vehicle and traffic examiners who commented on a much improved position. There were though still some concerns, as the VE’s update report reflected and which were explored at the inquiry - driver daily defect reports not always completed, including by the operator himself as recently as July, and the need to ensure roller brake tests are properly laden.

I considered this case to be in the·serious to moderate” category when considering the starting point for regulatory action, having regard to the Senior Traffic Commissioner’s Statutory Document 10. t found that the operator’s repute was tarnished, not lost, but that there was clearly a need for regulatory action in view of the serious failings found and accepted by the operator. I heard evidence about the impact on the operator’s business of action that I might take against his licence. In considering the Priority Freight question, “how likely is ii that the operator will, in the future, comply with the operator licensing regime?’ I found the answer to be more likely than not on the evidence as at the date of the reconvened inquiry hearing. I considered that there was a need for a deterrent intervention by way of a short period of suspension and that a period of 21 days was proportionate and appropriate in the circumstances of this case. I allowed a short period for the operator to manage his existing contracts and work before the suspension comes into effect and suspended the licence for 21 days under s26(1) of the Act with effect from 23:45 hours on 28 October 2022.

In view of the residual concerns identified by the DVSA the audit undertaking in the terms set out at paragraph 2 of my Decision above was attached to the licence, agreed by the operator.

Given the issues in this case and the regulatory action taken, I refused the variation application to increase authority from 3 vehicles and O trailers to 5 vehicles and 2 trailers. I indicated that, if a satisfactory audit report is received in 6 months’ time (and absent any other issues) I would be prepared to grant an increase at that stage should the operator wish to renew his variation application. I also noted that the operator has received advice from Mr Culpin regarding the operating entity and Mr Culpin indicated that he is likely to submit an application next year to change his business operation and operating licence from sole trader to limited company.

Victoria Davies

Traffic Commissioner for Wales

10 October 2022