[2024] UKUT 47 (AAC)

Mr. King’s licence

Mr. King’s licence (OC1122141) was a standard operator’s licence with a start date of 30^th August 2013. The continuation application by Mr. King dated 26^th June 2018 contained the standard terms as to keeping the rules on drivers’ hours and tachographs and associated records, keeping vehicles in a fit and serviceable condition and driver defect reporting. At the material times Mr. King was the nominated transport manager on the licence. He applied to surrender the licence on 20^th June 2021, two days after the Company’s operator’s licence was granted, but the application was not accepted.

Mr. King was called to a public inquiry to be held on 31^st January 2023 by a letter dated 22^nd December 2022 which identified areas of concern which we summarise as:

The detailed evidence leading to the TC’s concerns was contained primarily in a traffic examiner visit report dated 6^th December 2022 from Johannah Groom and a maintenance investigation report following a visit on 4^th May 2021 from Colin Brown, both of the Driver and Vehicle Standards Agency (“the DVSA”). Reliance was also placed on a DVSA interview with a driver, Jason Day.

Ms. Groom explained that on 4^th May 2021 she began to conduct a compliance check for drivers’ hours and systems. Her report recorded one prohibition dated 16^th March 2018 in respect of a tachograph which was not fitted properly and no prosecutions or fixed penalties. On the day of the visit (4^th May 2021) she downloaded some data and requested the production of further information, some of which, but not all, was received on 16^th May 2021. When she downloaded that data she identified a number of occasions between 27^th July 2020 and 26^th January 2021 which appeared to constitute infringement of the drivers’ hours and tachograph rules. In particular it appeared that Mr. Day had been using Mr. King’s driver’s card.

On 14^th June 2021 Ms. Groom wrote to Mr. King requesting further information. Appointments were made for meetings with Mr. King on 2^nd July (a date which Mr. King had said he was able to make), 7^th July and 19^th October 2021, all of which he failed to attend. He finally attended on 12^th November 2021 and was interviewed under caution. Following the interview Ms. Groom concluded that Mr. King had been in hospital when his card was used and was not aware of the use made of it, but the systems in place did not highlight that that was happening. In consequence of that and his failures to attend meetings and produce documents she considered that he was not complying with the statement of intent in relation to the undertakings on the licence.

The transcript of the interview contains the following:

Mr. Brown’s maintenance report showed in the “unsatisfactory” category ineffective management of driver defect reports, inability to establish contractor arrangements for inspection and maintenance and no system for tyre management arrangements. It also showed three immediate prohibition notices not identified in Ms. Groom’s report which were such as to require report to the Office of the Traffic Commissioner (“the OTC”). Mr. Brown required from Mr. King as operator and Mr. King as transport manager a written explanation of the reasons for the reported shortcomings and what was going to be done to prevent future problems.

No such written explanation had been received by the time Mr. Brown digitally signed the report on 8^th July 2021, after Mr. King had missed the appointments on 2^nd and 7^th July. Mr. Brown did, however, write to the OTC on 28^th February 2022 stating that Mr. King had decided to co-operate with him and Ms. Groom in trying to address the shortcomings noted and he had been able to check the invoices for maintenance repairs which he required.

Mr. Day’s interview was conducted on 2^nd September 2021 and was also under caution. The transcript contains the following: