Neutral Citation Number: [2015] UKUT 6 (AAC) Appeal No.  T/2014/60

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of

Miles Dorrington, Deputy Traffic Commissioner for the

West Midland Traffic Area dated 13 June 2014

 

 

 

Before:

Her Honour Judge J Beech, Judge of the Upper Tribunal

Stuart James, Member of the Upper Tribunal

John Robinson, Member of the Upper Tribunal

 

 

Appellants:

 

 

MIDLAND TRUCKING SERVICES LIMITED

DARREN JOHN HARRIS

 

 

Attendances:

For the Appellants: Caroline Evans, solicitor of Woodfines Solicitors on behalf of both Appellants

 

Heard at: Field House, 15-25 Bream’s Buildings, London, EC4A 1DZ

Date of hearing: 9 December 2014

Date of decision:   02 January 2015

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

 

IT IS HEREBY ORDERED that the appeal against revocation of the licence and disqualification of Midland Trucking Services Limited be DISMISSED with immediate effect; the appeal against the disqualification of Darren John Harris be ALLOWED and remitted for re-hearing.

 

 

SUBJECT MATTER:-  Failure to comply with undertakings; non-compliance by Transport Manager with duties and responsibilities; oversight of Transport Manager by Operator; revocation; disqualification.

 

 

CASES REFERRED TO:-  Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport (2010) EWCA Civ 695.

 

 

REASONS FOR DECISION

 

 

1.             This was an appeal from the decisions of the Deputy Traffic Commissioner for the West Midlands Traffic Area (“DTC”) made on 13 June 2014 when he revoked the standard national licence of Midland Trucking Services Limited (“MTS”), the First Appellant, with effect from 23.59 on 14 July 2014 under ss.13(A)(2), 26(1)(b),(f) and (g) and 27(1)(a) of the Goods Vehicles (Licensing of Operators) Act 1995 (“the 1995 Act”); disqualified the First Appellant and its two directors Darren John Harris and Graham John Harris, the Second Appellant, for a period of two years under s.28 of the 1995 Act and found that Martin Somerfield, the nominated Transport Manager had lost his good repute and disqualified him for a period of 3 years under paragraph 16(2) of Schedule 3 of the 1995 Act.  The DTC’s decisions in respect of Graham John Harris and Martin Somerfield are not the subject of appeal.

 

2.             The factual background to this appeal appears from the following documents and chronology.  Darren John Harris and Graham John Harris (son and father respectively) are the sole directors of Auto Bits Scrap Metal Limited (“ABS”).  MTS was incorporated in order primarily to meet the transport needs of ABS and to that end, an operator’s licence authorising eight vehicles and eight trailers was granted in March 2008.  At the time of the public inquiry, MTS had seven vehicles and six trailers in possession. Martin Somerfield was the nominated Transport Manager from the outset. 

 

3.             In January 2010, a maintenance investigation into MTS was carried out which was marked “unsatisfactory”.  The inspection identified that there were insufficient preventative maintenance inspection (“PMI”) records available; those that were available were incorrectly or not fully completed; the agreed PMI interval was being stretched; there was no driver defect reporting system; there was no maintenance contract available; recent PG9 notices had been issued and the MOT first time fail rate was above the national average.  A warning letter was sent to the operator by the Office of the Traffic Commissioner (“OTC”) in March 2010. 

 

4.             A further maintenance inspection was undertaken in April 2011 which was again marked “unsatisfactory”.  That identified that the PMI records were incomplete or lacking detail.  Further PG9’s had been issued and the MOT first time failure rate remained above the national average.  In July 2011, MTS gave the following undertakings:

 

“All authorised vehicles will have a thorough and effective pre-MOT inspection.  Records to be kept for at least 2 years;

A random audit of safety inspections will be conducted not less than every 3 months when each vehicle’s records will be checked by the transport manager.  The findings will be recorded and made available to staff from VOSA or the OTC on request”.

 

5.             In August 2012, ABS was prosecuted for an offence of unauthorised use of a large goods vehicle (a recovery vehicle being used to carry scrap metal) and as a result, that company applied for and was granted a restricted operator’s licence authorising 6 vehicles. 

 

6.             Despite the undertakings set out in paragraph 4 above, a further 4 immediate PG9’s and 6 delayed PG9’s were issued in respect of MTS vehicles, one of which was “S” marked.  A maintenance investigation in January 2013 was again marked “unsatisfactory” resulting in a further undertaking being given by MTS, namely:

 

“The operator will undertake a random audit of at least 2 drivers per week to ensure the drivers are undertaking his/their walk around checks correctly.  The findings will be recorded and made available to staff from VOSA or the OTC on request”. 

 

7.             Despite that further undertaking, MTS vehicles continued to attract PG9 notices.  5 immediate PG9’s and 7 delayed PG9’s were issued, with one “S” marked.  On 30 August 2013, a further maintenance investigation was commenced.  Mr Somerfield was not present at the operating centre as he was driving one of the authorised vehicles in the course of his employment.  VE Brown inspected 3 vehicles and 1 trailer and issued 2 delayed PG9’s and 3 inspection notices.   When VE Brown returned to the operating centre on 4 September 2013, Mr Somerfield was present and he showed VE Brown the driver defect report checks he had been undertaking.  Nevertheless, the investigation was marked “unsatisfactory” for the following reasons:

 

i.             The undertaking to carry out written maintenance audits every three months was not being complied with by the Transport Manager;

ii.                 No check was being made of the PMI records before filing;

iii.           The forward planner was not being used to project PMI dates but rather, it was used to record the inspections once they had taken place;

iv.           The forward planner was not being used to project dates for driver training and 3 monthly audits;

v.            Driver defect report checks were not being kept at the operating centre but rather in the cab of Mr Somerfield’s LGV and the outcome of the checks were not being recorded on a form for the respective weeks;

vi.                Two PG9’s had been issued during the investigation;

vii.               The roadside PG9 rate was poor;

viii.        Mr Somerfield did not have at least 2 hours per day within his schedule in order to perform his role as Transport Manager. 

 

8.             VE Brown noted that in order to improve the company’s maintenance record, MTS had recently purchased Autorite Industries (Willenhall) Limited (“Autorite”), a recognised and fully equipped HGV inspection facility less than a mile away from the operating centre.  This acquisition represented a “huge investment and advancement” of the company’s maintenance arrangements and was “fully satisfactory”.  Further, the PMI interval being implemented was four weekly as opposed to six weekly as per the company’s statement of intent and roller brake testing was being undertaken more often than not at each PMI.  The MOT failure rate had improved and was broadly in line with the national average.  VE Brown thought this may have been the result of MTS acquiring Autorite.   However, the PG9 rate was not reducing.  Mr Somerfield was not spending enough time as the Transport Manager as he was also a full time driver.  Whilst driver quality checks were being conducted, a different approach might be required to ensure that the drivers walk round checks were satisfactory.  Their shortcomings were clear from the PG9 rate. 

 

9.             In response to the PG13f&g form from VE Brown, Darren Harris and Mr Somerfield wrote separately to the OTC on 9 and 13 September 2013 respectively stating that the absence of evidence that three monthly audits of the maintenance systems were taking place was because of the “very close working relationship” they had, resulting in the written reports being overlooked.  Tyres (which featured in the PG9 notices) were a problem because of the nature of the work.  A number of changes to procedures were proposed including an increase in Mr Somerfield’s available time in order to undertake his Transport Manager duties over and above the hours he spent in that role on Saturday and Sunday mornings and the other random hours he had available during the week. 

 

10.         By letters dated 6 December 2013 and 24 December 2013, MTS, its directors and Mr Somerfield were called to a public inquiry which took place on 13 January 2014.  In attendance was Martin Somerfield and Graham Harris (Darren Harris being unavailable); Mr Loach, a solicitor, represented the interests of MTS, the directors and Mr Somerfield.  It immediately became apparent that neither Mr Loach nor Mr Somerfield had identified that in the call up letter sent to Mr Somerfield, he was required to produce all of the company’s records relating to the Working Time Regulations.  As the DTC was concerned that Mr Somerfield’s working schedule might amount to a breach of the regulations (being a full time driver and a Transport Manager who should have been dedicating at least twenty hours a week to his Transport Manager duties), the hearing was adjourned for documents to be produced.  The DTC also ordered that a drivers’ hours and tachograph records investigation be undertaken by a Traffic Examiner.

 

11.         TE Tracey Love commenced her investigation on 27 January 2014.  The company had four vehicles fitted with digital recording equipment and three with analogue equipment.  She noted that there had been 16 Traffic Examiner encounters with MTS vehicles in the previous 5 years, resulting in 2 drivers’ hours and tachograph PG9’s being issued in 2011 and 2013.  All drivers used by MTS were in fact employed by ABS.  Mr Somerfield explained that he arrived at the operating centre at 6am each morning in order to see each driver.  He would also be there upon their return.  No one was exceeding their permitted hours and he conducted random checks of the tachograph charts although there was no evidence to confirm what he had said.  Darrren Harris admitted that no checks on tachograph charts had taken place prior to the public inquiry hearing of 13 January 2014.  Mr Somerfield did however randomly look at the analogue tachograph charts when they were handed in and spoke to the drivers when necessary.  As for the digital data, none of the four vehicle units had ever been downloaded and whilst the drivers’ cards had been downloaded, they had not been analysed.  Darren Harris advised TE Love that the company did not possess any equipment to undertake such analysis although he later stated that it did.  TE Love was satisfied that even if the company did possess the necessary equipment, it was not being used and that the failure was “negligent and unacceptable”.  There had also been an “absolute disregard” of the requirements to download data from the vehicle units within 56 days. 

 

12.         TE Love requested all tachograph data for November and December 2013.  All that could be produced for the four vehicles with digital equipment installed was data covering two days for the four vehicles, all post dating the public inquiry hearing.  When TE Love requested the raw data for the entire reference period from all the digital vehicles, Darren Harris sent files for all four vehicles by email but only one contained any data.  The events screen in relation to that file demonstrated that the vehicle had been driven without a driver card having been inserted on occasion.  Further, three of the four vehicle data units had not been “locked” into the company and the fourth had only been “locked” in on 18 January 2014.

 

13.         TE Love was concerned about Mr Somerfield’s position.  His charts had revealed infringements not only during road side inspections but also during her own investigation.  TE Love questioned Mr Somerfield’s own knowledge of the drivers’ hours provisions which she considered to be inadequate.  Further, steps taken to ensure compliance with the Working Time Regulations were non-existent generally and Mr Somerfield could not possibly have been compliant himself.  He often drove on a Saturday, thereby reducing his minimum 45 hour weekly rest period quite apart from failing to record his Transport Manager duties as “other work” which he maintained he undertook on Saturday and Sunday mornings.  And as for the casual drivers, none of them had been asked to sign a declaration about the nature of their other work outside of their employment with MTS/ABS and no checks were made upon them to ensure compliance. 

 

14.         During the course of the investigation, TE Love had been advised that the company had now contracted with Tachomaster to undertake the necessary analysis of all tachograph information and the expectation was that all data would be analysed. Tachomaster would also be asked to assist with the steps necessary to ensure compliance with the Working Time Regulations. 

 

15.         At the hearing of the adjourned public inquiry on 30 May 2014, Darren Harris and Mr Somerfield were present and the company, directors and Mr Somerfield were represented by Mr Oscroft of Counsel who confirmed at the outset that the evidence of VE Brown and TE Love was accepted by those he represented.  The joint approach was “to confess and throw ourselves at the mercy” of the DTC.  It was hoped that the DTC could be convinced that genuine attempts had been made to rectify the “fundamental issues” which had given rise to “serious failings”. 

 

16.         VE Brown was then called to provide an update to his report.  Since 5 September 2013 (the date of his report), there had been 14 vehicle encounters resulting in 1 immediate and 3 delayed PG9’s.  One of them was “S” marked for an insecure brake chamber.  The PG9 rate was now 33% compared to the national average of 30%.  Four vehicles had been presented for MOT resulting in 3 vehicles passing and 1 failing.  MTS had invested “massively” in a maintenance facility and had increased the frequency of PMIs. 

 

17.         TE Love informed the DTC that she had not seen VE Brown’s report before preparing her own report.  When she visited the operating centre there was in fact no evidence of a contract with Tachomaster.  Darren Harris said they were in negotiations with the company.  She described both Darren Harris and Mr Somerfield as “open and honest” at all times and openly admitted that they did not have the required documentation.  However, it was unusual to find during an investigation that were was no system at all for the checking or monitoring of drivers’ hours and tachographs when a Transport Manager was in place.  She was “shocked” to find “absolutely nothing”.  As for Mr Somerfield’s responsibilities, he should have been devoting 20 hours to his Transport Manager duties each week and he could only achieve this by working at weekends which would then result in drivers’ hours offences.  On top of that, he was not recording those duties or his daily driver checks. TE Love confirmed that since her investigation, both Darren Harris and Mr Somerfield had attended a New Operator Seminar.

 

18.         Darren Harris then gave evidence.  He believed that MTS operated four or five vehicles generally and the company was not very busy.  ABS had operated as a company since 1999.  Its application for a restricted licence followed an incident when a driver had taken out a recovery vehicle to move “a few bins of metal” and ABS had been prosecuted for unauthorised use.  The conviction was not disclosed to the TC as Mr Harris was under the impression that he would have known about it in any event.  Autorite had been acquired to undertake the maintenance of MTS vehicles but was also responsible for the maintenance of 80 vehicles under various contracts.  Mr Harris considered that the reason for the high PG9 rate within the MTS fleet was damage caused to tyres in scrap yards.  The solution had been to fit new tyres rather than part worn ones.  Further, Fleet Line had been employed since January 2014 to undertake monthly inspections of the tyres.  This new procedure had cost a “couple of thousand a month” to implement.  Mr Harris went through the “S” marked PG9’s, providing explanations for each one.  None had been appealed because such appeals put operators “in a bad light” with the DVSA.  Pre-MOT inspections were now being undertaken (although we note that there was an undertaking to do so since 2011).  He confirmed that Tachomaster had been “signed up” to deal with both digital and analogue tachographs.  He accepted that there had been a breach of the undertaking that audits of maintenance systems should take place every three months along with the retention of records.  The audits had been taking place but because Mr Somerfield sat in close proximity to him in the office, they simply discussed the audits as opposed to keeping formal records.  There was no evidence that the audits were being undertaken but that had been rectified in January 2014.  He also accepted that there had been a breach of the undertaking concerning quality checks of the driver defect reporting system.  The failing was caused by the records of those checks being kept in Mr Somerfield’s vehicle cab. The New Operator’s course had made Mr Harris more aware of the systems which should be in place and he was “looking at employing” Wynn Hooper, an experienced Transport Manager, for four or five hours a day.  He was to “start Monday”.  Driving licence checks were all in order and the age of the vehicles had been improved from 10 years to 5 to 10 years.  He was intending to do the same with the trailers.  He hoped that the reduced PMI interval would assist in reducing the company’s PG9 rate.

 

19.         Mr Harris accepted “we have all failed”.  He had not taken any disciplinary action against Mr Somerfield as he thought that they could “work through” the problems: “today is the day for transformation”.  He did not agree that but for the investigations conducted by VE Brown and TE Love, the maintenance and drivers’ hours and records failings would have continued.  He and Mr Somerfield had already spoken about sending tachograph data off to Tachomaster prior to January 2014 but they had not done  so.  He accepted that three unsatisfactory maintenance investigations “did not look good”.  However, the steps taken since Christmas 2013 were “in the right direction”.  The administrative staff of Autorite were assisting with maintenance  and any other recommendations made by the DTC would be followed.  MTS wanted to move forward.  Mr Harris confirmed that he was “still picking up on how to read digital print offs” from the drivers cards and he did not know how drivers should make manual entries on digital tachographs.  Mr Somerfield was dealing with that.  He could undertake some more training himself.  Mr Harris admitted that he could not say whether Mr Somerfield was doing his job as Transport Manager properly.  When questioned by the DTC, Mr Harris was unable to say what general conditions were attached to the MTS licence.

 

20.         Mr Somerfield then gave evidence. He had obtained his CPC in 2008 and he had worked for MTS since then.  He accepted that he was aware that compliance by MTS was not “100%”.  He was spending about five hours a week on his Transport Manager duties because of his driving commitments.  He did however make sure that the lorries were maintained but he did not have sufficient time to check the drivers’ records.  He did perform random checks on the drivers’ records (although we note that these checks would not have included the digital data from four of the seven vehicles).  He did understand what was required of him in relation to the Working Time Regulations as he had attended the New Operator Seminar and Tachomaster had spent a morning with him in January or February 2014 explaining the Working Time Regulations.  Tachomaster were analysing the tachographs on a weekly basis.

 

21.         Upon Mr Somerfield estimating that he drove for 33 hours per week, the DTC noted that Mr Somerfield’s total working week would therefore be 53 hours.  Mr Somerfield revised his estimate of driving to 30 hours per week in addition to the 20 hours he dedicated to his Transport Manager role. Mr Somerfield could not answer how he was able to do this when the average that he could work was 48 hours per week.  However, he did not think that he needed to commit 20 hours per week to Transport Manager duties as only four or five vehicles were in operation and in the circumstances, he revised the hours that he in fact committed to being a Transport Manager to 15 hours per week.  He was not however confident that over a 26 week reference period, he was nevertheless personally compliant with the Working Time Regulations.  Rather than manually record his “other work” on his tachgraph charts, Mr Somerfield kept a diary of his additional non-driving work although he had not taken it with him to the public inquiry.  All of his hours were provided to Tachomaster for analysis and break infringements had been identified on his charts.  Mr Somerfield accepted that he had an issue using the mode switch correctly.  The number of infringements found by Tachomaster generally were reducing as a result of the drivers’ having a better understanding of the rules.  No written warnings had been issued to the drivers save in relation to walk round checks. 

 

22.         Mr Somerfield volunteered that he had not realised that the digital vehicle units had to be downloaded every 56 days.  A friend had told him about the requirement and Mr Somerfield had then engaged Highway Tachos to download the units and he had purchased equipment to analyse the data.  Mr Somerfield accepted that he had “failed totally” as a Transport Manager as a result of being a full time driver.  However, if Wynn Hooper were to be employed then he would relieve the burden from Mr Somerfield to an extent and Mr Somerfield would reduce his driving commitments even foregoing driving altogether if necessary.  He would also undergo further training.  He accepted that he did not know the prescribed methods of making manual entries onto records prior to those records being sent to Tachomaster despite the fact that MTS had been operating vehicles with digital units for eighteen months.  He apologised for the way that he had been “running the company” for the last six  years. 

 

23.         Whilst the hearing was taking place, VE Brown examined the documentation produced by MTS.  He gave further evidence to the DTC that since the 1 January 2014, four road side encounters had taken place resulting in one immediate PG9 and one delayed PG9 being issued.  The PG9 rate was now “satisfactory”.  VE Brown agreed that all of the recommendations he had made to MTS had been followed and that the vehicle folders were “really good”.  However, he had not seen any quality control check records on the driver defect reports or any records relating to the undertaking that 3 monthly audits of the maintenance systems would take place although there were some recent examples in the bundle produced to the DTC.  With the acquisition of Autorite, VE Brown speculated that the maintenance position would further improve. 

 

24.         TE Love then reviewed the documentation produced at the public inquiry.  No digital records had been produced and there was no record of repeat offenders.  Mr Somerfield had infringed the rules on four occasions in one month and none of his tachographs had any manual entries on them in compliance with the Working Time Regulations save for the one that she had used to show Mr Somerfield how to make manual records.  Further, the diary that Mr Somerfield kept of his other work was not sent to Tachomaster for analysis and therefore the analysis of his work was incomplete.  Between 10 March and 11 April 2014, Mr Somerfield drove so many hours that he could not possibly have legally undertaken his Transport Manager duties.  Further, TE Love highlighted a number of failings in relation to the records generally and also in relation to the records of driving licence checks.  Her conclusion in her report that the drivers’ hours and records position was “unsatisfactory” had not improved and MTS was “not doing enough” to rectify the failings.  At the conclusion of TE Love’s evidence Mr Somerfield accepted that his position as Transport Manager was “untenable” and he resigned.  Darren Harris accepted Mr Somerfield’s position and asked for a period of grace to appoint a new Transport Manager.

 

25.         At the outset of submissions, the DTC highlighted that the issue of disqualification was a matter which needed to be addressed by Mr Oscroft.  It was submitted that MTS was a successful business which had fallen “seriously into error”.  The public inquiry had been a “wake up call” and MTS had been grateful for the opportunity provided by the adjournment of the public inquiry in order to make amends.  Now that Autorite had been purchased and improvements had been achieved in the company’s maintenance as a result, maintenance was no longer the significant issue but rather the company’s compliance with the rules on drivers’ hours and records and the Working Time Regulations.  It was clear that in that regard, the company was making significant efforts to be fully compliant although it was accepted that “all is not rosy” but contrition had been displayed.  There was a willingness to follow guidance and further undertakings requested would be complied with.  Revocation and suspension would amount to the same thing and there were other businesses which would be affected by the loss of the MTS licence.  There were no substantial issues with ABS save for the conviction (giving rise to the restricted licence).  The DTC indicated that ABS was “not on my radar”.  Mr Oscroft was “grateful for that indication”. 

 

26.         Mr Oscroft submitted that Darren Harris was a convincing witness and Mr Somerfield had “put his hands up” to the position in relation to drivers’ hours, records and Working Time Regulations.  His decision to stand down as Transport Manager was indicative of a person who recognised that he could not be a driver and Transport Manager and further undertakings could be given as to steps that would need to be taken if Mr Somerfield were to be specified as Transport Manager on the licence again.  If a period of grace could be granted and Mr Hooper could be employed as Transport Manager, then the company would become fully compliant.  Mr Oscroft acknowledged the DTC’s earlier indication that ABS was “not on my radar” when making reference to convictions and concluded that disqualification would be a step too far given that Darren Harris had started to assert the necessary control and supervision of MTS over the previous 6 months.  He had trusted Mr Somerfield too much in relation to drivers’ hours and records and further steps needed to be taken but with the employment of Mr Hooper, those steps could and would be achieved. 

 

27.         In his written decision dated 13 June 2014, the DTC acknowledged that there had been “a clear sign of improvement” in the company’s maintenance and that some credit could be given for those improvements that had been demonstrated during the hearing.  However, compliance with driver hours and tachograph rules and regulations fell significantly below the minimum level of compliance expected from all operators.  TE Love’s report revealed one of the worst cases of non-compliance that the DTC had seen in six years with fundamental failings continuing as at the date of the public inquiry.  The DTC concluded that no credit could be given for any efforts made to ensure compliance with the drivers’ hours and tachograph rules and regulations because since the granting of the licence in 2008 and up to the date of the hearing, MTS remained non-compliant.  In considering good repute, the DTC concluded that he could not trust MTS to operate compliantly in the future bearing in mind its long history of non-compliance, significantly with drivers’ hours, tachographs and Road Transport Working Time Regulations and also when taking account of the period between January and May 2014 when MTS failed to become compliant despite having been legally represented in the first hearing.  In the DTC’s judgment MTS was not capable of compliance in the near future.  Further, as this was one of the worst cases of drivers’ hours and records he had seen “in a long time” with non-compliance continuing at the date of the hearing, the DTC asked himself “what would compliant operators think” if the DTC answered the Bryan Haulage question in the negative.  He found that this would lead to a loss of trust and confidence in the regulatory function of Traffic Commissioners and would tempt other operators to operate non-compliantly. 

 

28.         The DTC concluded that MTS had lost its good repute and revoked the licence.  He further considered it appropriate to revoke the licence pursuant to discretionary powers as a result of breaches of undertakings and a failure to notify material changes (he did not set out what the material changes were).  He considered that disqualification of both directors was necessary.  They had been legally represented and had been given an opportunity to present evidence and make representations upon the issue of disqualification.  The directors had failed to monitor and supervise MTS’ systems to ensure compliance and in this regard the directors “totally failed”.  The DTC noted that in relation to maintenance, the directors were able to present evidence of compliance at the public inquiry, which meant that they had been capable of ensuring compliance after the first unsatisfactory maintenance investigation in 2010.  Darren Harris could not even repeat the four general undertakings on the operator’s licence.  The directors had further permitted Mr Somerfield to undertake a full time driving role which prevented him from performing his duties as a Transport Manager.  Despite credit for the improvement to the maintenance system, it was nevertheless appropriate and proportionate to disqualify MTS and both directors for 2 years.

 

29.         At the hearing of this appeal, MTS and Darren Harris were represented by Caroline Evans of Woodfines solicitors.  She commenced her submissions by repeating the history of MTS and the reasons why the company had been incorporated.  She accepted that at the beginning of the company’s operation as a haulier, it attracted a disproportionate number of PG9’s even when taking account of the nature of its business but it was clear that MTS had recognised the need to remedy the problem.  The solution was to buy Autorite (for a considerable amount) and that had resulted in both the PG9 rate and the MOT first time failure rate improving to near the national average.  Those improvements demonstrated that MTS and Darren Harris were capable of future compliance.

 

30.         As for TE Love’s report, Ms Evans averred that MTS did have the necessary software to analyse digital tachograph data when TE Love visited even though she had been told otherwise by Darren Harris.  In fact Darren Harris had seen Mr Somerfield analysing tachographs.  The Tribunal indicated to Ms Evans that he could not have seen Mr Somerfield analysing digital data prior to January 2014 as the data had not been downloaded and was lost.  Any data that had been downloaded was after the first hearing.  Further, TE Love’s report had not been challenged during the second hearing.  The evidence before the DTC was therefore that Darren Harris had told TE Love that no analysis of tachograph records or digital data had been analysed prior to 13 January 2014. 

 

31.         Ms Evans went on to submit that it was nevertheless the case that by 30 May 2014, the data was being downloaded and all records were being analysed as Darren Harris was checking that Tachomaster was invoicing MTS for the analysis.  He had also observed Mr Somerfield printing off the reports.  The nub of the appeal was the DTC’s finding that Darren Harris should have ensured that all of the relevant records were being submitted to Tachomaster to ensure compliance with the Working Time Regulations and that Mr Somerfield was fulfilling his duties.  Ms Evans submitted that the responsibilities of Darren Harris did not extend that far.  He had seen TE Love showing Mr Somerfield how to make manual records on digital and analogue tachograph records; he had watched Mr Somerfield carrying out his duties (they shared an office); he had seen Mr Somerfield printing off the reports prepared by Tachomaster; he was aware that Tachomaster was checking compliance with the Working Time Regulations.  All of these, taken together had satisfied Darren Harris that Mr Somerfield was fulfilling his responsibilities as a Transport Manager.  He was unaware that Mr Somerfield was not submitting details of other work (either his own or that of other drivers) to Tachomaster.  Whilst Darren Harris accepted that the Working Time Regulations were not being fully complied with by 30 May 2014, sufficient changes had taken place with sufficient assurances for the future to allow the good repute of MTS and Darren Harris to remain intact and accordingly, the revocation of the licence of MTS was disproportionate and wrong.

 

32.         We disagree.  It is clear that the directors of MTS abdicated all responsibility to Mr Somerfield to operate MTS.  Mr Somerfield’s own apology to the DTC for the manner in which he had “run the company” is telling.  The DTC’s determination that the directors had failed to undertake any monitoring or supervision of the way in which MTS operated vehicles is one which cannot be challenged.  Darren Harris may have been sharing an office with Mr Somerfield (who was a full time driver and therefore away from the office for most of the day) but Darren Harris was not concerning himself with the transport side of the scrap metal business.  It took three unsatisfactory maintenance investigations for maintenance issues to be addressed.  The undertakings which were given in order to meet the concerns of the TC were not honoured until it became evident that the operator’s licence was in peril.  The fact that Darren Harris had done nothing to ensure compliance or that Mr Somerfield who was over worked, had sufficient time to undertake his Transport Manager duties meant that it was inevitable that there would be a finding that his good repute was lost.  Mr Somerfield’s difficult position should have been obvious to a director who claimed to have a close working relationship with his Transport Manager.  Further, following the first hearing on 13 January 2014,  it would or should have been obvious to Darren Harris that there were very real issues about compliance with the Working Time Regulations, not least in relation Mr Somerfield and yet he did nothing to support or supervise Mr Somerfield. His statement at the second hearing that “this was the day for transformation” was too little too late.  This was a bad case on any view even when taking account of the very real improvements in the maintenance systems of the company.  We are satisfied that the DTC’s determinations on those issues were plainly right and neither the law or the facts of this case impel us to come to a different view to that of the DTC upon the issue of revocation or disqualification of MTS as per the test in Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport (2010) EWCA Civ 695.

 

33.         Ms Evans’ second point concerned the disqualification of Darren Harris.  She submitted that the effect of that disqualification had wider consequences than may have been envisaged by the DTC.  As a director of ABS which holds a restricted licence authorising six vehicles and six trailers, the disqualification of Darren Harris would result in the loss of that restricted licence.  Whilst the call up letter addressed to MTS referred to the restricted licence of ABS and that reference was made to the licence in written and oral submissions made by Mr Oscroft, the DTC failed to make any reference to the “knock on” effect that disqualification of the directors would have upon ABS.  Ms Evans made submissions to the Tribunal in which she outlined why ABS would lose its business if the company was unable to continue operating vehicles under a restricted licence.  We do not repeat her submissions in this judgment as the DTC did not hear any evidence upon the issue but this is a point that does trouble the Tribunal.  We are concerned that as a result of the DTC’s ambiguous statement that ABS was not on his “radar”, Mr Oscroft may have been unintentionally deflected from submissions which could otherwise have been made as to the consequences of the disqualification of Darren Harris upon ABS and its restricted licence.  It is further unclear whether the DTC’s statement was intended to be an indication that whatever regulatory action was taken against MTS, the restricted licence of ABS would remain intact.  The fact that the DTC did not mention the directors’ involvement with ABS may be as a result of not hearing submissions upon the issue.  Of course, it is obvious that a limited company is able to change its directors and thereby retain its restricted licence but when the company is a family business, that is more difficult to achieve in reality.  In the circumstances, we are satisfied that Darren Harris should be given an opportunity to make more detailed submissions on the issue and on this limited point, the appeal is allowed.  The issue of the disqualification of Darren Harris is remitted for further consideration by the DTC and in particular, to consider submissions as to the wider implications of his disqualification on ABS as the holder of a restricted licence. 

 

34.         The appeal is allowed to the limited extent that the disqualification of Darren Harris is remitted to the DTC for further consideration.

 

 

 

 

Her Honour Judge J Beech

02 January 2015