In a judgement published on 30 April 2020, Traffic Commissioner for Scotland Clair Gilmore revoked the operator’s licence held by Alan Laughlin T/A AWL Minicoaches with effect from 2345hrs on 30 April 2020. In addition, Alan Laughlin was disqualified from holding or obtaining an operator’s licence in Great Britain for a period of five years and Thomas Walker disqualified for a period of six months from acting as transport manager on any licence, with effect from 2345hrs on 30 April 2020.
Operator Alan Laughlin, T/A AWL Minicoaches, held a standard national PSV operator’s licence authorising the use of two vehicles, granted on 2 June 2015 following a public inquiry (PI). That licence replaced the holder’s previous restricted licence. That PI was called to consider concerns relating to the roadworthiness of the operator’s vehicles, the alleged use of an unauthorised operating centre and a failure to notify changes as required in respect of the licence.
The then Traffic Commissioner (TC) found there to be non-compliance (albeit unspecified) in relation to the restricted licence, but agreed to accept the surrender of the restricted licence and grant the new licence providing the operator heeded the licence undertakings, kept his records up to date and ensured that the non-compliance found in relation to the restricted licence was not repeated. Thomas Walker was appointed Transport Manager on the licence. One full time and one part time driver were employed at the time of the latest PI. [wlm_nonmember][…]
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The office of Traffic Commissioner for Scotland, Claire Gilmore, received reports dated 5 September and 4 November 2019 from DVSA Vehicle Examiner (V.E.) Malcolm Brown and Traffic Examiner (T.E.) James Sweetin respectively. The public inquiry was held on 27 January 2020 with Mr Laughlin, Mr Walker, Mr Brown and Mr Sweetin in attendance.
Mr Walker produced a bundle of supporting documentation in advance of the inquiry; driver defect reports and the forward planner however were requested but not produced.
Cause for concern
An inspection carried out by V.E.Brown had disclosed serious defects with vehicle J90AWL affecting the suspension and resulting in an ‘S’-marked prohibition. A later inspection of vehicle S46JAE resulted in a delayed prohibition notice being issued in relation to items including a fractured brake disc, defective seatbelts, defective fog lamps and deteriorated brake hoses.
V.E. Brown’s evidence was that the serious defect on J90AWL had been long-standing and would have been obvious on inspection. It would have caused noise to come from the vehicle and been apparent that something was wrong. In his opinion, most of the defects he found on S46JAE were also likely to have been long-standing. Mr Laughlin had challenged his finding that some of the seatbelts on that vehicle were not operational and V.E. Brown explained in detail how he carried out the check on the seatbelts, in accordance with standard practice.
Inadequate facilities
V.E. Brown visited Mr Laughlin’s maintenance provider, which was also the operating centre specified on the licence. He found that the garage was designed only to maintain cars and light commercial vehicles and that the facilities were sub-standard and not fit for purpose. There was no evidence that a maintenance contract existed between Mr Laughlin and any maintenance provider at the time of his inspection, and from analysis of the documentation available, V.E. Brown concluded that the inspection regime which was in place was not sufficiently rigorous.
V.E Brown expressed concern over the fact that dates appeared to have been altered on some of the PMI sheets which had been produced at the PI. There was a maintenance contract included with the papers, with signatures which pre-dated his inspection, but which had not been provided to him in the course of his investigation. The contract was dated 5 August 2019, but the first inspection of the vehicles by the new provider did not appear to have been undertaken until 13 September.
V.E. Brown was also concerned at the absence of evidence that Mr Walker had reviewed any of the PMI findings or queried the obvious shortcomings in relation to the maintenance of the vehicles. In his opinion neither operator, nor transport manager, were adequately fulfilling their duties in relation to the maintenance and upkeep of the vehicles.
Roadside checks
Traffic Examiner Sweetin’s report disclosed that there had been three roadside encounters with vehicles operated by Mr Laughlin since February 2018. All had resulted in prohibitions being issued, these relating to tachograph issues. A check of the systems used to ensure compliance with the undertakings on Mr Laughlin’s licence carried out by Mr Sweetin was also deemed unsatisfactory, revealing no system in place to monitor compliance with the working time directive, and no evidence to show that driver licences were being checked with the required regularity.
T.E. Sweetin drew the TC’s attention to his stop of J90AWL on 24 February 2019. He advised that at the time of the stop he had assumed that the vehicle had 16 seats, but had later found it to have 19. The driver of the vehicle had ultimately been found not to have the correct entitlement to drive either size of vehicle. The driver told T.E. Sweetin that he was on his way to a football match and that he had driven the vehicle on previous occasions, including to football games on 9 February 2019 and 20 February 2019. He advised he was using the vehicle for personal purposes, but T.E. Sweetin noted that he was using the tachograph equipment at the time of the stop.
Driver confusion
Mr Laughlin had denied that the driver in question had ever driven any of his vehicles prior to 24 February 2019 and stated the driver had been using the vehicle by mistake on that date, it having been agreed that the driver would borrow a 9-seater vehicle belonging to Mr Laughlin’s son. Mr Laughlin suggested that the driver must have been referring to driving his son’s vehicles on previous occasions. However, it was noted that Mr Laughlin’s booking diary had a list of football fixtures and prices, and included what appeared to be details of football match hires which had been booked for 9 and 20 February 2019. An entry for 24 February 2019, the day of the stop, had been erased.
T.E. Sweetin also highlighted a letter, purportedly written by the driver of the vehicle, which had been produced by Mr Laughlin during the investigation, and which was unsigned and undated. The letter advised, amongst other things, that the driver had been confused on the day of the stop, and alleged that the driver had lied to T.E. Sweetin about his previous use of tachograph records and the fact that he had used Mr Laughlin’s buses before.
Additional documentation which Mr Laughlin and Mr Walker had brought on the morning of the public inquiry indicated that systems were now in place to monitor compliance with the working time directive and to properly check driving licences. However, the T.E. remained concerned at the previous lack of adequate systems
The operator’s evidence
Mr Laughlin accepted that the maintenance of his vehicles had not been undertaken to the required standard, but blamed this on his maintenance provider. Explaining why he had used an unsuitable maintenance facility and why serious and purportedly long-standing faults had been permitted to occur, Mr Laughlin advised that he had not been allowed into the facility to see what was being done. He said he drove the vehicles regularly, but he was not a mechanic, and could not have been expected to spot faults, or known that the premises were unsuitable. He said that he had known the owners of the business for years and had proceeded on trust.
It was disclosed that the maintenance provider in use at the time of the inspection had been specified on Mr Laughlin’s application for his standard national licence in 2014, but a change of provider had been notified in April 2015. He was unable to advise why he had not notified the TC of the change of provider back to the original one.
In relation to non-operational seatbelts on a vehicle used to transport children to school, both Mr Laughlin and Mr Walker sought to challenge V.E. Brown’s finding that the seatbelts were not operational at the time of the inspection. Mr Laughlin stated that he had fitted replacement belts himself and that inspections after V.E. Brown’s inspection had proved they were working. No evidence was provided to support this. Mr Laughlin and Mr Walker accepted the other prohibitions that had been issued, along with T.E. Sweetin’s findings that they had not had adequate systems in place to monitor the working time directive (WTD), or properly check licences. Neither did they dispute the prohibitions issued in relation to the use of tachograph equipment.
Mr Laughlin maintained in his evidence that the driver who had been questioned during the stop on 24 February 2019 had not worked for him or driven his vehicles before. He had done work for his son in the past. He stated that the names in the diary entries related to those who had booked hires rather than the drivers, and the deletions were as a result of error or cancellation. He knew lots of people called ‘Rab’ and it was a coincidence that that was also the driver’s name. He was unable to back this up with evidence.
Failure to comply
Mr Laughlin accepted that he had failed to comply with the undertakings on his licence to ensure compliance with the laws on driving and operation of vehicles, to ensure rules on drivers’ hours and tachographs were observed and to keep his vehicles in a fit and serviceable condition. He conceded that the alterations made to PMI sheets, the lodging of a backdated maintenance contract, the erasing of details from his booking diary and the production of unsigned letters could give rise to a suspicion that he was falsifying documents in order to hide non-compliance or to counter the examiners’ findings. He also accepted that his evidence regarding the last minute loss of documents en route to the PI may appear unbelievable, but maintained that he was being honest.
Mr Laughlin accepted the majority of prohibitions that had been issued and that he had failed to comply with the undertaking on his licence to keep his vehicles in a fit and serviceable condition, in the belief that he was entitled to rely on his maintenance contractor to make sure his vehicles were fit and serviceable. The TC did not accept that Mr Laughlin was entitled to rely blindly on that. An operator and their transport manager must ensure that the facilities they use are suitable and fit for purpose.
Transport Manager’s role
Transport Manager Mr Walker admitted that he had concerns that the vehicles had been poorly maintained for a considerable period. He thought things were ‘ok’ until about a year before the maintenance inspection but that it had gone downhill. He was a qualified engineer and said that he had been concerned about the high MOT failure rate and had tried to persuade Mr Laughlin to go to another maintenance provider but that had proved difficult. He accepted that there was no evidence to demonstrate that he had been actively involved in ensuring the vehicles had been kept fit and serviceable.
With regard to tachographs, Mr Walker’s position was that the drivers were always told to carry their cards with them, albeit he accepted there was no other evidence to support that. He stated that he visited Mr Laughlin ‘as often as he needed to’ and checked documentation along with him, but there was no fixed schedule. He accepted that there had been no system in place for monitoring the WTD in relation to drivers but suggested that the type of work they did meant there was little scope for breaches. He hoped to attend a refresher CPC course in due course.
Mr Walker ultimately conceded, taking all of the shortcomings together, that he had not exercised continuous and effective management of the operation, but suggested in mitigation that Mr Laughlin had not made that task easy for him.
Lack of financial standing
Mr Laughlin’s explanation of his inability to meet financial standing at the time of the PI was due to his having to spend significant sums on repairs for the vehicles. As many of the defects were long-standing and therefore indicative of sustained neglect, the TC concluded that Mr Laughlin was aware of this and chose, for a considerable period, to do nothing about it.
Whilst Mr Laughlin and Mr Walker disputed the prohibition relating to the seatbelts, neither was able to provide any evidence to support that. The vehicles were used to transport children to school, and TC Gilmore found that Mr Laughlin’s failure to maintain his vehicles in a fit and serviceable condition posed a significant risk to road safety and gave him a competitive advantage over other operators who complied with their obligation to do so.
The TC was unable to find that the PMI sheets had been deliberately altered and agreed that dates could have been changed in correction of a genuine error. However, the TC found the backdating of the maintenance contract to be a deliberate attempt to deflect attention from the length of time that there had not been one in place. Mr Laughlin’s explanation of being ‘in discussion’ with his new provider was deemed not sufficient to justify his actions in falsifying a document so vital in context of the regulatory regime. This was deemed to be extremely serious, and to demonstrate a lack of trustworthiness on the part of Mr Laughlin.
TC Gilmore felt unable to rely on Mr Laughlin’s evidence and did not believe his denial that he had allowed a driver without the correct entitlement to drive his vehicle. When weighed against the evidence of the driver during the stop, and his own diary entries, this was not credible. Nor could the TC attach weight to the letter purported to have been written by the driver which was produced by Mr Laughlin, which was unsigned, undated and not spoken about by the driver at any time. The TC therefore judged that he had allowed a driver without the correct entitlement to drive one of his vehicles on at least three occasions. The TC found Mr Laughlin’s story about the loss of the documents on the subway en-route to the PI not credible, and his failure to safeguard those documents properly and produce them when directed in itself a serious matter.
Due credit
The TC gave credit for the admissions Mr Laughlin made in relation to the failings identified, and noted that he had spent considerable sums of money since the DVSA investigation on the repair and maintenance of his vehicles. He had recently changed to a maintenance provider which appeared to be fit for purpose. Mr Walker had implemented new systems to correctly monitor the working time directive and to properly check driving licences, and the TC accepted Mr Walker’s evidence that given the type of work undertaken, breaches of the WTD were unlikely.
Reviewing all the matters, TC Gilmore concluded that she was unable to trust Mr Laughlin and did not believe significant passages of his evidence, having found that he had deliberately falsified a document which was vital in the context of the regulatory regime.
Asking the question posed in the case 2009/225 Priority Freight: ‘How likely is it that this operator will, in future, operate in compliance with the operator licensing regime?’ TC Gilmore considered it highly unlikely that Mr Laughlin would comply in the future. The TC also found that his failures had put road safety at risk and given him an unfair commercial advantage.
In addressing the question posed in T/2002/217 Bryan Haulage (No.2) ‘Is the conduct of this operator such that it ought to be put out of the business?’ the TC considered that this was a case where Mr Laughlin had obtained a commercial advantage over other operators and compromised road safety by deliberately failing, for a significant period of time, to keep his vehicles in a fit and serviceable condition. He had attempted to conceal his failures by falsifying documentation. This was, TC Gilmore said, a bad case in which dishonesty was a feature, and took the view that other operators who carry out their businesses in a compliant manner would be shocked if another operator were permitted to operate a vehicle against this background. It was therefore appropriate and proportionate to answer the Bryan Haulage question in the affirmative, and TC Gilmore concluded that Mr Laughlin has lost his repute, and as such, revocation of his operator’s licence was necessary.
Disqualification
Considering whether to follow the licence revocation with disqualification, TC Gilmore considered that Mr Laughlin had attended two public inquiries and similar concerns were raised at both. Mr Laughlin failed to heed the earlier warning, and the TC considered it to be necessary to disqualify Mr Laughlin from holding an operator licence for a period of five years.
Considering Mr Walker, the TC took into account the fact that he is a qualified engineer and appeared knowledgeable in relation to technical matters and he clearly understood the seriousness of the issues regarding the condition of the vehicles. From information given, the TC agreed that Mr Walker had been significantly affected by illness and his difficult personal circumstances which had likely rendered him less able assert his authority with Mr Laughlin when things started to go wrong. Mr Walker was credited for having made improvements in the systems he used to manage the operation and studied up on the requirements for monitoring the working the directive, and intended to attend a refresher CPC course in due course.
However, whilst TC Gilmore was able to give weight to the evidence put forward by Mr Walker in mitigation, she was unable to conclude that his difficulties were such as to render him unable to take action faced with the failure of Mr Laughlin to ensure his vehicles were fit and serviceable. The TC found it to be proportionate to conclude that Mr Walker had lost his repute as a transport manager and he was therefore disqualified from acting as such for a period of six months and with a condition that as a rehabilitation measure, he completes a two-day CPC refresher course.
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