An obvious tyre defect on a vehicle presented for MOT had significant consequences for a sole trader operator
Traffic Commissioner for the Western traffic area Kevin Rooney called Andrew John Southon to a public inquiry (PI) on 2 November at which adverse findings were made under Sections 17(3)(aa), 17(3)(c) and 17(3)(e) of the Public Passenger Vehicles Act 1981, the latter in relation to financial standing and fitness. The operator’s licence was revoked with effect from 16 November, whilst Mr Southon was found to be no longer fit to be the holder of a vocational PCV entitlement. The entitlement was also revoked from the same date and Mr Southon disqualified from holding a PCV licence for a period of twelve months.
The operator held a restricted public service vehicle operator’s licence that authorised the use of two vehicles. The operator presented vehicle LF09 UDY for its PSV MOT on 10 November 2021. It failed on five separate items and had a further advisory defect. The nearside outer tyre on axle 2 had a deep cut in the tyre with cords exposed. The vehicle was prohibited from further use and the examiner considered that the tyre defect should have been identified by the driver. He marked the prohibition as identifying a significant failure of compliance systems. A follow-up maintenance investigation identified significant shortcomings and so the operator was called to a public inquiry. Due to the nature of the defect, Mr Southon was also called to a conjoined driver conduct hearing to consider his vocational entitlement.
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The hearing was initially listed for 14 September but was rescheduled. Licence holder and sole trader Mr Southon chose not to attend, despite having been called, and confirmed that he was aware of the hearing. In his absence, the Traffic Commissioner (TC) proceeded to make a decision.
In relation to the maintenance investigation findings, the TC found no evidence of instrumented brake performance testing as there is required to be, and noted that the operator’s performance at MOT was very poor. Defects found at MOT should have been identified by the driver and the maintenance provider, he said, noting that a vehicle underwent and passed a Class 5 MOT just a few weeks before failing by some margin the Class 6 MOT on items common to both tests. “I am sure that DVSA will have followed up with the Class 5 private test station, and that does provide some mitigation for Mr Southon,” he added.
Exhaust emission failures were said to be a common feature at MOT testing for the operator, and the TC said he was concerned at Mr Southon’s comment in his response to the Vehicle Examiner that ‘failing on emissions is not a danger to a passenger or other road user.’
Among the documentary evidence provided to the TC was a picture of the tyre damage, which he said was obvious and should have been picked up by the driver that morning. Mr Southon suggested in his response to the vehicle examiner that he did not present the vehicle for test. Looking at the prohibition notice issued, the TC observed that there was no operator licence number given, which suggested that there was no operator’s licence disc displayed in the window. He also observed that the vehicle concerned had never been specified on the operator’s licence, which is not a legal requirement. However, he pointed out that those two observations pointed towards the fact that the prohibition document was recorded as being received at time of issue by an A Southon, and that without the vehicle having been specified on the licence or a disc being in the window, there would be no link to Mr Southon unless it was he himself who presented it for annual test.
TC Rooney therefore found that on the balance of probabilities, it was in fact Mr Southon who presented the vehicle for test. It therefore followed that he should have identified the obvious serious defect on his walk-round check. The TC suggested that Mr Southon had sought to mislead the PI in his written submission, and since he had chosen not to attend, was unable to provide an explanation.
TC Rooney reiterated that making a false statement to mislead a Traffic Commissioner is a serious matter, and that the operator licensing regime is based on trust. With that in mind, he found Mr Southon no longer to be fit to be the holder of a PSV operator’s licence.
“My finding in relation to Mr Southon’s involvement in the tyre defect is such that I find he is no longer fit to be the holder of a vocational driving entitlement. The starting point in the relevant guidance is a suspension of 14 days. However, it has been seriously aggravated by the false statement made in response to the vehicle examiner. That goes to the heart of the trust that must exist with a PCV licence holder given the nature of the role with passengers and their belongings. It causes me to deal with the matter as dishonesty and so to revoke the PCV vocational entitlement with effect from 16 November 2022 and then to disqualify Mr Southon for 12 months,” the Traffic Commissioner said.
No financial evidence was provided, leading the TC to also find that the operator failed to satisfy the mandatory requirement of financial standing. Coupled with the fact that vehicles had not been kept fit and serviceable, and a prohibition notice had been issued and annotated as identifying a serious failure of compliance systems, the TC felt that it was appropriate to revoke the operator’s licence, with effect from 16 November 2022.
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