May 2022 Update

Notable Traffic Commissioner / TRU decisions

DECISION: CCS Waste Ltd.

DATE: 3 May 2022

TRAFFIC AREA: West Midlands

KEYWORDS: Professional Competence – Transport Managers – Good Repute – Revocation – Disqualification

FACTS: CCS Waste had hired a transport manager who subsequently discovered he could not commit to the required hours and sought to remove himself from the licence, but had ultimately agreed to remain on the licence in name only, for £500 per month, until CCS Waste could find a suitable replacement.

The new transport manager had some difficulty exercising effective control and decided to remove herself from the licence.

DECISION The Traffic Commissioner decided that the arrangement with the first transport manager was ‘a flag of convenience transport manager, a name on the licence to give the outward (but false) impression that a transport manager was in charge’. This transport manager lost good repute and was disqualified indefinitely.

As for the second transport manager, the fact that more could have been done, but did ultimately resign, rendered her repute damaged but retained.

The company licence was revoked, and the sole director was disqualified for ‘the upper end of the one to three years scale…as a starting point’

NOTES: Another case which highlights how important Transport Managers are when things begin to go wrong with a haulage undertaking. A recurring theme with these cases appear to be a sense from many TMs that they are mere employees who take their lead from the company directors. This is a profound misunderstanding of the regulatory system. Traffic Commissioners will hold TMs equally responsible for these failings and will disqualify when appropriate.

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DECISION: Danehurst Transport Ltd.

DATE: 26/04/2022

TRAFFIC AREA: South Easters & Metropolitan

KEYWORDS: Maintenance – Transport Managers – Vehicle hire – Revocation – Disqualification – Good repute

FACTS: The operator was persuaded by a Transport Manager to set up his own owner-driver company with this Transport Manager acting as the professionally-competent person on the new licence. The operator did not take any meaningful part in the compliance oversight. Owing to the Transport Manager’s previous negative experience with the Traffic Commissioners, a desk-based assessment of this new company was requested. The results were highly unsatisfactory.  Particular issues were raised with maintenance requirements and whether a lorry hire agreement and its maintenance terms were adequate.  

DECISION: The TC decided that ‘this is a very serious case’ and “the failings are so serious that loss of good repute and revocation are the only proportionate outcomes.” The operator lost good repute and had his operator licence revoked – but he was not disqualified on account of his candid approach and that he ‘has learned a salutary lesson’.

It was also noted that the Transport Manager previous held his own licence for a company which is in liquidation with significant outstanding debts. Also, the vehicle hire company was noted to have been placed into Creditors Voluntary Liquidation with debts owing to HMRC and to traders.

NOTES: This case is noteworthy for highlighting the unparalleled institutional memory of the Office of the Traffic Commissioner. The case was only called due to the Transport Manager having a colourful regulatory history and the OTC wanting to assess whether this new arrangement is adequate. This institutional memory and expertise extends to companies who are not regulated by the OTC but who provide services to companies who are – such as maintenance providers and vehicle hire companies. An operator or TM needs to bear this is mind – both for themselves in avoiding a impugned reptation (which can be hard to shake) but also in being scrupulous in who they decide to do business with.

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DECISION: Mr Duncan John Blackburn McKee

DATE: 11 May 2022

TRAFFIC AREA: Scotland

KEYWORDS: Falsifying records – Drivers’ hours infringements – Disqualification of vocational licence

FACTS: DVSA officers had investigated the company which Mr McKee had worked for and found a number of shortcomings. Specifically in relation to Mr McKee, numerous infringements were discovered with instances of using two driver cards, driving with no driver card inserted and using altered registration plates.

DECISION: The traffic Commissioner disqualified Mr McKee’s vocational entitlement for five years due to ‘the lengthy course of dishonest conduct demonstrated by Mr McKee’. A return of this vocational entitlement must be considered by a Traffic Commissioner.

NOTES: This decision stands as a reminder that a first appearance at a conduct hearing does not necessarily mean that a driver will ‘get away easy’. A TC will want to see early and wholesome cooperation with the DVSA both at the roadside and any follow-up interviews along with genuine remorse and a demonstration that changes will be made.

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Upper Tribunal Cases

CASE: Kamil Kodzik Transport Limited

CITATION: [2022] UKUT 126 (AAC)

KEYWORDS: Financial standing – Disqualification – Transport Manager – Continuous and effective control

FACTS: Due to a lorry failing PSV a number of times within a short time by reason of inadequate braking and whilst still being used in between, the DVSA conducted an on-site inspection. Due to troubling findings with the operation and the Transport Manager, it was suggested by the DVSA that the OTC issue a call-up letter. Also, financial standing evidence came partly from credit facilities in the director’s name in a personal capacity and did not belong to the limited company. At first instance, the TC found that the transport manager was without good repute and that the sole director and company be disqualified for six months.

DECISION: The Upper Tribunal held that the Traffic Commissioner was correct in not taking account of the director’s personal credit facilities for the purposes of demonstrating financial standing, despite the fact that this was an owner-driver operation. The TC’s finding that the director has lost good repute was also upheld due to ‘substantial non-compliance with the regulatory system’ and that ‘there was no evidence to show that Mr Kodzik as the sole director… understood the nature and extent of the failings and had taken appropriate corrective action. The UT also noted that, despite the worrying shortcomings of the TM, the director maintained at public inquiry, that he was a ‘top man’.

Other relevant case law

Legislation

Industry News

Operator licence requirements for vans

Under Articles 463 and 464 (along with Annex 31) of the Trade and Cooperation Agreement between the UK and the EU, vehicles over 2.5t (for the most part vans) must be operated under an operator licence from 21^st May 2022 if:

• they are being operated for hire and reward (i.e. getting paid for transport); and
• they are operating in an EU member state.

This must be applied for in the ‘normal’ way (as with vehicles over 3.5t in NI) – an application to the TRU. There are two differences, however:

• Although professional competence is needed, this can be satisfied by having a transport manager with an international CPC or (unique to this scheme) by having an existing member of staff who has 10 years experience of managing vans or other vehicles prior to August 2020.
  • This ‘acquired rights’ option is only available until 21^st May 2025 by which time the transport manager must have completed the CPC exam.
• The financial standing requirements are lower than for normal HGVs. For the first vehicle, you must show access to £8000 and for each additional van you must show £800.

Note that this will only apply if you are engaging in cross-border work. If you are only operating within the UK, the pre-TCA rules remain and you will not need an operator licence. However, if you operate in the EU on international journeys, you will need an operator licence. Also, your van or van/trailer combination do not satisfy the weight requirement if they are actually operating at 2.5t or more – it is the maximum permissible which the vehicle is plated for which counts, regardless of whether their kerbside weight ever reaches 2.5t or not.