Decision for K & B Haulage Limited and Richard Simcox
Written decision of the Traffic Commissioner for the West of England for K & B Haulage Limited and Richard Simcox
WESTERN TRAFFIC AREA
K & B HAULAGE LIMITED OH2040441
RICHARD SIMCOX – TRANSPORT MANAGER
AT A PUBLIC INQUIRY IN BRISTOL 18 DECEMBER 2024
BACKGROUND
K & B Haulage Limited is the holder of a restricted goods vehicle operator’s licence authorising the use of ten vehicles and ten trailers from an operating centre in Sling, Forest of Dean. The sole director is Kyle Gettings (“KG”). The licence was downgraded from Standard International in October 2024 following the resignation of Richard Simcox as transport manager in August that year.
Kyle Gettings has compliance history. As a sole trader, he held restricted licence OH2009886. I became aware that Mr Gettings had been convicted of health and safety offences which had led to the death of an employee of Capital Metals Ltd, of which he was director. In September 2022, I proposed to revoke that licence on the grounds of material change, no longer fit to hold the licence and on change of entity to the limited company. No response was received and the licence was revoked.
At the same time, I proposed to revoke this, then standard, licence on the ground that Mr Gettings had failed to notify the conviction, it being a matter that affected his good repute. Solicitors acting for Mr Gettings requested a public inquiry and that took place on 8 February 2023. The decision was as follows:
“The Health & Safety offence is a bad one and highly relevant. It is appropriate to pierce the corporate veil and it sits against the company. It is balanced by the significant improvements made since the accident.
The wounding offence, whilst serious, is not relevant to the operation of the business and there is significant mitigation in any case. I find I am able to set is aside. It should have been notified.
There are issues with the general operation and the operating entity. I am satisfied that, with the engagement of solicitor Miss Caple, these will be resolved. General compliance with maintenance and drivers hours seems generally not a concern.
I find the good repute is tarnished but not lost. I issue a formal warning for the failure to declare the wounding conviction.”
On 9 July 2024, YK16XYA was presented for test. It was prohibited because the front main spring eye was broken on the front axle. It also failed for two lamps not working, the tachograph calibration was out of date and there was a leak from a suspension air bag on axle 3. There were two further advisories relating to a warning message in relation to the air suspension system and poor condition of brake discs. This triggered DVSA investigations. It may also be what triggered the resignation of transport manager Richard Simcox on 31 July.
Traffic Examiner Amy Comer and Vehicle Examiner Dominic Smith attended the operating centre on 23 August 2024. The outcome of both investigations was referral to my office. TE Comer found that all vehicles were without tax, one without MOT and none had been downloaded anywhere near on time. VE Smith found maintenance records missing, almost none at all for the trailers, no brake performance testing and issued a prohibition to the vehicle he inspected for a deep cut in the tyre with cords exposed. Two more tyres were seriously under-inflated. It would seem that the operator declined to make any trailer available for inspection. There were many further shortcomings. I decided to call the operator and previous transport manager to a public inquiry.
THE PUBLIC INQUIRY
Kyle Gettings (KG) and office manager Paige Fawcett/Schroepfer (PS) attended unrepresented. They had considered representation and understood the potential outcome of the hearing. Richard Simcox had notified that he did not intend to attend due to work commitments. Compliance documents had been provided in advance.
Proceedings were recorded and a transcript can be made available if necessary. I record here only that which is necessary to support the findings made.
Finances appeared not to be met. Money was kept within K & B Recycling Ltd of which K & B Haulage Ltd was a subsidiary. Everything moved belonged to one of those companies. Other hauliers brought in scrap metal and this operator’s vehicles then took the sorted materials away. The financial position had been difficult but it was now resolved following recent exponential growth.
The previous maintenance provider was meant to have been maintaining the vehicles all year round and KG was always surprised to find a big bill for £5,000 or £6,000 before the MOT and then the MOT failed. That was why he moved to EMH. KG had relied on the transport manager but now was more involved personally. EMH was a mobile mechanic and attended the operating centre. There were no facilities and VE Smith had said that was unacceptable. So now they had moved to Davis. I noted that Davis was in Newport some distance from the operating centre – I was told it was worth the trip because they were so good.
I asked about Mr Simcox. He had said he would buy a lorry from KG and so it was transferred to him. KG had paid for his transport manager course. There was a dispute as he hadn’t paid so KG had taken the vehicle back. Following the MOT failure, he understood that VE Smith had reached out to Mr Simcox and Mr Simcox resigned because he didn’t want to be involved. The vehicle had previously run off the road in an incident and had been recovered. That must have been when the spring eye snapped. KG was refinancing the vehicle and needed an MOT. He was confident it would pass. He had been desperate and done a silly thing.
I turned to the report of VE Smith where there was a comment about vehicles not being made available for inspection. KG told me that was incorrect. Two trailers were being scrapped. One had been hired and the last was with KND (maintenance provider) so unavailable for inspection. I referred to the comment of TE Comer (page 155) relating to the trailer. KG told me that the unit had left Newport solo and come to his yard to collect the trailer on the morning of 27 August. I referred KG to the record of the interview under caution and put it to him that he appeared to have been very evasive. KG accepted that he had not been truthful in interview. He had said to TE Comer that he didn’t know how his tachograph card was in the head when the true position was that he had driven the vehicle earlier that morning.
I asked why KG had not had the keys to the filing cabinet in which the records were kept. I was told that Mr Simcox was still attending 8 hours each week even after his resignation and he had the keys. Mr Simcox had then denied having the keys so KG had opened the cabinet with a crow bar.
KG now accepted that he had not managed Mr Simcox as transport manager. He had initially blamed the transport manager but now accepted that it was the responsibility of the operator to ensure the job was being done properly. With a restricted licence, there would be him, Paige and an external consultant who attended once a month so there were three pairs of eyes. KG reminded me that maintenance had been up together at the previous inquiry. The maintenance records were missing because the technician wouldn’t hand them over until he was paid but KG didn’t feel he should pay until he had received the records.
I asked about the driver, Mr Lukasovs. I was told that he worked through his own limited company. Mr Lukasovs did not have an operator’s licence. KG assumed that, because his limited company was invoicing K&B Haulage and K&B owned the lorry, that it was OK to use the K&B licence. I noted that TE Comer had indicated otherwise in her report. KG acknowledged that she had raised it but not in detail. Lukasovs would now be put on PAYE.
Mr Simcox had been doing the vehicle unit downloads. I took KG to page 151 of my brief where it noted that vehicle XYA had last been downloaded 204 days earlier, KXT 207 days and XYC, 327 days earlier, late by 237 days. KG expressed surprise. Downloads were now undertaken monthly, or maybe one or two weeks after. I referred to the recent compliance dashboard that had been uploaded by the operator to the case. It seemed to indicate that two vehicles were over 56 days and one over 90 days. I was told that the vehicle over 90-days was a yard shunter with a defective tachograph. PS told me that she was still learning how to use the dashboard. She had spoken on the phone with Tachomaster and TE Comer had shown her how to download the vehicles. She was due to attend an operator licence awareness course.
I asked why the vehicles had all been out of tax and one out of MOT. There was no answer but new systems were now in place so it couldn’t happen again. KG had been unaware of the conviction for failing to notify a driver until he had checked his licence on 23 October. It was being contested and that was why he hadn’t notified it. Up-to-date driver tachograph compliance documents had not been provided for the hearing. PS had uploaded an Excel spreadsheet of summary infringements. KG offered to have the information uploaded by the end of the day.
I referred to a PMI for YK16XYA which had been carried out on 9 December, the previous week at Davis Commercials. I noted that the rear tyres were below the legal limit with 3 out of 4 tyres recorded at 0mm. The immediately preceding driver defect report does not mention the tyres, and it was carried out just 115 kms previously. The PMI was signed to say that the vehicle was not roadworthy and should not be moved. It was then driven back from Newport to a garage local to the operating centre where second-hand tyres were fitted. As from the previous week, all brake tests were loaded. I noted that the test the previous week was far from fully loaded. I was told that was not correct as they wouldn’t have sent the vehicle without a full load. KG didn’t understand the measured weights on the test report – it would not make sense to send it with anything other than a full load as Davis was round the corner from where they delivered.
I asked about the impact of regulatory action. A curtailment to three vehicles would have no impact. Suspending the licence for one or three months would be detrimental but the operator would cope. Three months would be very difficult. I asked about contracting to a haulier – that was nigh-on impossible. They could probably get one load a day moved but they needed two or three and that would cause stock build-up on site. Revocation would cause the business to collapse completely. KG did not know how he could cope if he were to be disqualified.
KG closed by telling me that he had previously passed the blame to others. He now knew that was wrong. If he could keep the licence he would demonstrate a vast improvement. He apologised for the failings that had been made.
FINDINGS OF FACT
Finances had been transferred from K&B Recycling Ltd coinciding with the call-up letter. Recycling is a wholly-owned subsidiary of Haulage with a director in-common. I am content that financial standing is satisfied.
I find as a fact that:
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The tax on vehicle DK56KXT expired on 31 January 2024. It continued in regular use without tax until the DVSA visit on 23 August 2024.
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The tax on vehicle RE09AVO expired on 31 January 2024. Its MOT expired on 30 June 2024. It continued in use without tax or MOT until the DVSA visit on 23 August 2024.
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The tax on vehicle YK16XYA expired on 28 February 2024. It continued in regular use without tax until the DVSA visit on 23 August 2024.
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The tax on vehicle YK16XYC expired on 28 February 2024. It continued in regular use without tax until the DVSA visit on 23 August 2024.
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Kyle Gettings lied to the DVSA Examiners about not having driven YK16XYC on the morning of 27 August 2024. He told them that he did not know at what time the vehicle had left the maintenance provider when it was he who had collected it. He said he did now know how his driver card had shown driving on that morning when it was because he was using it to drive XYC.
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Kyle Gettings failed to cooperate with the DVSA investigation by failing to make available for inspection a trailer authorised for use under the licence despite reasonable requests to do so. He went further in that he facilitated the removal of the trailer from the vicinity of the operating centre.
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Three of four authorised vehicles had not had the tachograph vehicle head units downloaded within the 90-day backstop in law under retained EU Regulation 561/2006. The 90-day period was exceeded by between 115 and 237 days. The fourth vehicle could not be downloaded by DVSA so its status is not known. More likely than not, it had not been downloaded for some considerable time too.
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The operator has sub-contracted work to Sergejs Ltd, a limited company which employs as its driver Sergejs Lukasovs. Sergejs Ltd is not the holder of a goods vehicle operator’s licence.
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Drivers were not recording manual entries for other work and, as such, their tachograph records are incomplete. They may be false but I have insufficient evidence to support such a finding.
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There was no management of compliance with the working time directive. As the records are not complete, it is not possible to determine whether there have been breaches but the likelihood appears low.
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Safety inspections are declared to be at six-weekly intervals. In total, only seven vehicle and two trailer safety inspection reports were made available for four vehicles and an unknown number of trailers over a fifteen-month period. There is a suggestion that they were carried out, but the maintenance provider would not provide the documentation. That has not been evidenced. In any case, equipment should not re-enter service until the transport manager or responsible person has had sight of the declaration of roadworthiness. Section 26(1)(e) is made out. Given the paucity of inspections evidenced and the resultant poor state of the fleet, I attach considerable weight.
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There is evidence that drivers are not recording defects as they are required to do. Forty-four percent of safety inspections included driver reportable defects. As recently as October 2024, a vehicle was presented for a safety inspection with three tyres measured at 0mm tread depth. Only 14 driver defect reports were made available by the operator for four vehicles over a 15-month period.
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The MOT failure rate is extremely poor. Of seventeen tests, eight have failed at first presentation, a failure rate of 47% against a national average of 8.48%. Vehicles have clearly not been kept fit and serviceable.
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Two prohibitions have been issued to authorised vehicles. Section 26(1)(c)(iii) is made out.
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There is no evidence of any positive contribution to compliance whatsoever from the transport manager Richard Simcox.
There are many other major shortcomings identified in the maintenance report such as inspection reports incorrectly completed. The shortest gap between safety inspections is 102 days, meaning it was 60 days late. There was no load security policy or training, no effective wheel and tyre management, no management of emissions systems. I would set them out in detail, but normally serious matters seem quite insignificant against the findings I have already made.
The person who is considered to “use” a vehicle is defined at Section 58(2) of the 1995 Act:
- (2) For the purposes of this Act, the driver of a vehicle, if it belongs to him or is in his possession under an agreement for hire, hire-purchase or loan, and in any other case the person whose servant or agent the driver is, shall be deemed to be the person using the vehicle; and references to using a vehicle shall be construed accordingly.
In the case of a “LTD driver”, the driver is the servant of their own limited company. It is their limited company that pays them and gives them their directions. That may seem artificial in the case of a limited company whose only employee is the director who is the driver but that is the law. This operator has lent its licence authority to Sergejs Ltd which has itself been an illegal operator.
There are some positives. The operator seems to have tried to comply with the public inquiry process by uploading and supplying compliance documentation. Office manager Paige Schroepfer has made inroads into tachograph systems and seems to be an organised individual. The recent maintenance records are an improvement. Operational vehicles appear to have been downloaded within the 90-day timeline albeit there is evidence that the period is far longer than the monthly programme I was told was the case. Any improvement since the DVSA intervention is significantly tempered by the driving of a vehicle from Newport to Coleford, some 30 miles, having been told that it is unroadworthy with three bald tyres. That speaks to an underlying culture of non-compliance.
The compliance shortcomings alone with vehicles untaxed, untested and un-inspected, the lack of any drivers hours management or working time, mean that this is not a business I can have any confidence will be compliant in the future. The operation has been so dangerous that it must come to an end. Whether or not that means the end of the wider business is a matter for Mr Gettings – sub-contracting does not seem unachievable although doubtless it will increase costs. Even if it means the end of the business, I find that this is an operation that must come to an end for the benefit of public safety – I find it is no longer fit to be the holder of a goods vehicle operator’s licence. Section 26(1)(h) is made out and I attach very considerable weight.
I support that finding by reference to the Senior Traffic Commissioner’s Statutory Guidance Document No 10. The shortcomings I have found reflect a recklessness on the part of the operator, and a recklessness that is shown still to persist by the actions in October. Road safety has been compromised and the use of a Ltd Company driver is unfair competition. The maintenance shortcomings have been persistent over the 15-month period identified. The vehicle tax matter is also persistent covering as it does the entire operational fleet. This clearly falls into the category of “severe”. I am then directed to take action that interferes with the operation, and the level beyond the “severe” threshold points clearly at revocation and disqualification.
Disqualification as an operator does not require an additional feature but nor is it automatic. However here there are two very serious additional features. The first is the lies told in interview under caution, now accepted as being lies by Mr Gettings. The second is the failure to cooperate by making a trailer available for inspection. Those add to the lack of any confidence that I can have in this operator being compliant in the future until there has been a reasonable period of reflection. In setting that period, I have considered this to be the operator’s first public inquiry. I have done that because the previous inquiry was on a completely unrelated matter and I found compliance not to be a concern. That said, the non-compliance here is at the most serious end of the scale augmented by the lack of cooperation and honesty. I do, though, take account of the apparent lack of any input from the transport manager and that moves me away from the 3-year top end.
Transport manager Richard Simcox appears to have done nothing whatsoever to achieve any degree of compliance. The failure to have vehicles inspected, to download tachographs, to ensure that drivers were reporting defects all fall at his door as much as they do the operator who was responsible for managing him. He did not attend the inquiry and provided no submissions other than to say that he had work commitments. I find that his good repute as transport manager is lost. The abject failure to make any contribution raises my decision from the one-year starting point.
DECISIONS
Following a finding that the operator is no longer fit to be the holder of the licence, the licence is revoked pursuant to Section 26(1)(h).
Following a finding that the operator has failed to honour the statement of intent with respect to safety inspections, and that failure is by a considerable margin, the licence is revoked pursuant to Section 26(1)(e).
To allow for an orderly winding down, revocation will take effect from 23:59 hours, 15 February 2025.
Kyle Gettings and K & B Haulage Ltd are each disqualified from holding an operator’s licence in any traffic area from 15 February 2025 and for a period of two years.
The good repute of Richard Simcox as transport manager is lost and he is disqualified from acting as such for a period of two years and until he sits and passes again the transport manager certificate of professional competence.
Kevin Rooney
Traffic Commissioner
13 January 2025