Upper Tribunal Administrative Appeals Chamber

[2025] UKUT 328 (AAC)

Fecha: 11-Ago-2025

that your vehicles and trailers would be kept fit and serviceable

that your vehicles and trailers would be kept fit and serviceable;

…iii. that you would keep records for 15 months of driver defect reports, safety inspections and routine maintenance and make them available on request;

iv.

drivers would report promptly any defects or symptoms of defects that could prevent the safe operation of vehicles and/or trailers, and that any defects would be promptly recorded in writing

…You should…attend the hearing prepared to answer some of the following points where they may not meet the required standards (not an exhaustive list):

• driver detectable defects appearing at preventative maintenance inspections instead of being picked up by your drivers as part of their daily walkaround checks;

• vehicle brake performance not being measured sufficiently, for example, vehicles are not undergoing a roller brake test in a laden condition or where wheels lock out;

• gaps in your records which indicate that vehicles have not been inspected at the stated frequency;

• drivers not identifying defects prior to the issue of a prohibition notice;

• actions the directors take to maintain oversight of the auditing and review of maintenance documents;

• an explanation of why the suggested starting points in the DVSA Guide to Maintaining Roadworthiness were not adopted…”,

The public inquiry hearing was held on 18 December 2024. One issue before the Traffic Commissioner was the good repute of the operator’s designated transport manager (who resigned on 31 July 2024), but the manger did not attend the hearing. The operator had informed the OTC that it would be represented by a solicitor at the hearing (page 381a), but in the event no representative attended. We now set out those parts of the transcript of the hearing (beginning at page 292) that are of most relevance to the operator’s grounds of appeal to the Upper Tribunal:

“TC (Traffic Commissioner): …you’re not represented…so what happened there?
KG (Kyle Gettings): [solicitor] was exceptionally busy, and for her to take it on she needed more time. And to be fair, sir, I, there’s not much to defend me. I can see my failings and, you know, with the greatest respect, I don’t want to waste your time and you know, all we can do is show you how we failed and how we, you now, progressed now, so it’s very limited what she can defend me for.
…
KG:…so every time a lorry went in it was like 4,000 or 5,000 pounds every time it was going in for an inspection…so Steve Avey…was our contract manager, he would just turn up, just grab the lorries, take them up because we was next door. He would then do the work. He would then invoice us. Then when he was coming to MOTs, it was like 4, £5,000 or £6,000, which we was like, hang on, how is it so much when you’re supposed to be keeping on top of these? However, they would then go into the MOTs and then fail. So, we’re like, right, we’re paying all this money, why is it now failing every time it goes to MOT? We can’t do that. That goes against us. So that’s when we looked around. So, we found a company called…EMH and we started using EMH and they said, right, OK, we want our money up front. I said, I’ll tell you what, we’ll pay you 50% up front because we were paying them and then weren’t getting the paperwork for several weeks later. I didn’t see it as an issue because [transport manager] was dealing with of all this, and he never sort of relayed it back to me. I assumed everything was fine and this is only now that I’ve gone deeper into all of this is how I’ve seen the huge failings.
…
TC: So, what facilities – EMH…what facilities have they got?
KG: Well, this is it. So, they were coming to us, and they were doing it and doing a brake test at [unintelligible] which then when we spoke to Dom [DVSA Vehicle Examiner], he said he can't do that. I said, how can he do it? And I was like, I don't know, he's told me he's DVSA approved. Which you sort of believe you have to go with someone who says they are, especially when they use the words DVSA. However, when Dom told us, we changed immediately, and that's when we go to Davis, which you'll see all the document with Davis now… they're very, very good. They're very thorough. They won't let the lorry go unless it's right. And the paperwork is instantly before they send the invoice. We pay the invoice and it's done. You know, we have no worries anymore of paperwork not turning up, the right things on there because when Dom actually took the time to go through it, we could see that they weren't doing tyre ages or, you know, things like that, very small things, or the date, not the date, sorry, the unit number was wrong, whereas all these, they're perfect…
…
TC: OK. I'm going to turn now to the vehicle examiner's statement…page 70… it says, 'The number of trailers in possession has not been recorded due to the operator not confirming what trailers are in their possession', and throughout this there's reference to a black bulker, I think, and a blue bulker, and you didn't make them available for inspection.
KG: That, I'm sorry, that is incorrect. So, the trailers, which we actually showed on the evidence, it was scrapped because they were no good. So, we had someone come down and they had a look, and they were scrapped. The one trailer we were using was a friend of ours from TM Waste, which I explained that to them, and then the other trailer was with KND… so they could never inspect that at that time.
TC:…page 155…it says, ‘On 27th of August 2024, director Kyle Gettings drove the vehicle XYC and handed over the vehicle to Driver [Sergei] (ph)…At the time of handing over the vehicle it doesn't appear there was a trailer attached, but later in the journey, Driver Sergei collected a black bulk trailer local to the operating centre.'… you were interviewed about this… If I put it to you, you seemed to be very evasive in that interview. You'd been asked questions and you're not answering them straight, being quite difficult, and there appears to be evidence that actually, you'd driven that vehicle.