51茶馆

DECISION OF THE TRAFFIC COMMISSIONER FOR WALES

PUBLIC INQUIRY HELD AT PONTYPRIDD ON 13 AUGUST 2025

Background

Herllo Limited (鈥渢he operator鈥�) holds a Public Service Vehicle Standard National Operator鈥檚 Licence authorising 4 vehicles which was granted on 7 June 2022. The sole director of the operating company is Carl Smith.聽 The nominated transport manger was, until very recently, Keith Davey. He had been the nominated transport manager on the licence since grant, but he was removed from the licence on 31 July 2025. Keith Davey was called to a Public Inquiry before me on 29 January 2025, with operator Davey Travel Ltd for whom he was the nominated transport manager.聽 He did not attend the inquiry due to his ill health at that time, and I proceeded with the hearing in his absence and on the basis of comprehensive written representations that his representative made on his behalf.聽 I found that his repute was tarnished in view of serious compliance failings which were found on his watch at transport manager.聽 By the time of the inquiry, he had resigned as transport manager on that licence.聽 I was advised that his ill health had an impact on his ability to carry out continuous and effective management for the operator Davey Travel Ltd 鈥� in addition to other factors.聽 However, during that inquiry, I was advised that he remained the nominated transport manager on the licence held by Herllo Ltd. I advised his representative (who had no updated information about Mr Davey鈥檚 health condition or prognosis) that I would ask my staff to contact the other operator, Herllo Ltd, to ascertain the position.

My office wrote to the director of Herllo Ltd, on 3 February 2025 to advise him that I was aware from the Public Inquiry held to consider Keith Davey鈥檚 repute as transport manger in January that he had been off work since 9 January 2025 due to an apparently serious illness resulting in him being hospitalised. 聽I requested an urgent update on the situation regarding Herllo Ltd鈥檚 ability to meet the ongoing and continuous requirement of professional competence and the arrangements currently in place. Carl Smith responded by email of 14 February 2025, but I remained concerned that Keith Davey may not be exercising the required level of control as transport manager in view of the evidence heard and the adverse findings made following the public inquiry on 29 January.聽 In view of my concerns, I asked the Driver and Vehicle Standards Agency (鈥淒VSA鈥�) to conduct a Desk Based Assessment (鈥淒BA鈥�) of the operator鈥檚 systems for complying with maintenance, drivers鈥� hours and driver management requirements.

DVSA Vehicle Examiner (鈥淰E鈥�) Andrew Jones and Traffic Examiner (鈥淭E鈥�) Syedul Ali conducted their assessment on 2 April 2025 and assessed the operator鈥檚 systems as unsatisfactory.聽 Their report included the following shortcomings:

• PMI records not properly completed, with many reports recording road tests for assessing brake performance, which is not an acceptable method;

• The maintenance provider had changed but that had not been notified to OTC;

• Maintenance facilities were found to be inadequate;

• No evidence of wheel disruption log, driver training, company policy or records on wheel re-torques;

• No evidence of tyre management systems, and safety inspections did not record tyre age or pressures;

• Ineffective system for checking drivers鈥� licences;

• Operator claimed to be using an exemption from recording drivers鈥� hours (under radio or television broadcasting) but that was relevant only for goods vehicles, not PSVs.聽 There was no system in place to monitor drivers鈥� hours, including private hire driving activity;

• 12 instances found of vehicles being driven without a card for periods of between 2 hr 18 min and 6hr 56 min;

• Failure to comply with requirements as to driver card download frequency 鈥� one driver was missed by 506 days and VU tachograph calibration had expired;

• No system in place for managing working time, storing and retaining records, and no disciplinary procedures in place; and

• Transport manager assessed as having 鈥渋neffective control鈥� of the transport arrangements.

• The operator and transport manager responded to the DVSA report explaining how the shortcomings identified had been addressed or would be addressed.聽 However, both VE Jones and TE Ali had remaining concerns, particularly as to ongoing confusion regarding reliance on exemptions for transporting passengers to and from film sets, adequacy of maintenance facilities and brake testing arrangements.

Public Inquiry

The operator was called to a public inquiry to consider these matters. The call up letter dated 18 June 2025 advised the operator that a public inquiry would be held at 10am on 13 August 2025 in Pontypridd.聽 It set out the issues of concern with reference to relevant legislative provisions 鈥� specifically sections 14ZA(2), 17(1) and (2), 17(3)(a), (aa), and (b), and the regulatory action that I might take.聽 The letter explained that, if the operator did not attend, the case would be heard in its absence.聽 Case Management Directions attached to the call up letter required the operator to send to my office, at least 14 days before the hearing, evidence of its financial standing, which was identified as an area of concern.聽 The Case Management Directions required the operator to send its recent maintenance records for 3 of its vehicles to VE Jones by 23 July, and evidence of its systems for managing drivers, including tachograph data, driver licence checks and driver infringement reports, to TE Ali by 23 July.聽

聽Transport Manager, Keith Davey, was also called to the public inquiry to consider whether he continued to meet the requirements to be of good repute and professionally competent.聽 The call up letter dated 18 June 2025 was sent to him by email and by recorded delivery post to his home address.聽 This was the same postal address where he was served the papers for the previous public inquiry that he was called to in January. The OTC caseworker received a track and trace delivery receipt confirming that the letter calling him to Public Inquiry on 13 August 2025 was successfully delivered to him at that address. The Case Management Directions attached to his call up letter required him to send the same maintenance records and drivers hours records as the operator to 聽VE Jones and TE Ali at least 21 days before the hearing, unless the operator had already submitted those.聽 He was also invited to submit any representations, witness statements or reports that he wished me to take account of at least 7 days before the hearing. The call up letter explained the importance of attending the hearing in person and that a failure to do so may result in me hearing the case in his absence.

The public inquiry called in Pontypridd on 13 August 2025. Neither the operator nor the transport manager attended the inquiry hearing. TE Ali attended virtually, via Microsoft Teams, for the DVSA, however given that neither party attended the hearing, he was not required to give evidence. The operator did not submit the requested financial evidence to OTC, or its maintenance and drivers鈥� hours records to VE Jones and TE Ali, in advance of the hearing. Transport manager, Keith Davey, did not submit any evidence or written representations in advance of the hearing.

Carl Smith, the sole director of the operating company, contacted my office on 24 July to advise that Keith Davey had resigned as transport manager and that he wished to surrender the licence.聽 He was advised to make such request in writing and, as noted above, Keith Davey was removed from the licence record by the operator on 31 July.聽 The operator鈥檚 request to terminate the licence was referred to me and I refused that request on 4 August under section 15(4) of the Act in view of the serious failings alleged in the call up letter which were to be explored at Public Inquiry when I would be considering taking regulatory action in respect of the licence under sections17(1) and 17(2) of the Act.聽The operator was advised that the request was refused and that the public inquiry would proceed on 13 August. 聽

I received written representations dated 6 August 2025 from Carl Smith.聽 He indicated that he would not be attending the Public Inquiry hearing and that he understood that it would proceed in his absence.聽 The representations explained that he and the transport manger, Keith Davey, had arranged several meetings to review evidence for the hearing but these were all cancelled at the last minute by Keith Davey.聽 The final arrangement was for them to meet on 23 July (the deadline for submitting evidence to the DVSA as required by the Case Management Directions).聽 On that day, Keith Davey resigned during a telephone call with Carl Smith. The letter from Carl Smith accepted that the operator did not meet the required level of financial standing and that it had not provided the required documentation for the DVSA to review in advance of the Public Inquiry hearing.聽 He provided some further explanation in response to the issues set out in the Public Inquiry call up letter and case summary included in the Public Inquiry Brief.

I was satisfied that the operator and transport manager had been properly served with the call up letter and Public Inquiry Brief and that it was in the interests of justice to proceed with the hearing in their absence. I indicated that I would make my decision on the evidence available to me included in the Public Inquiry Brief and the letter and representations received from Carl Smith dated 6 August 2025. I then reserved my decision.

Findings of fact

I make the following findings on the evidence before me and on the balance of probabilities:

Statements made when the licence was applied for have not been fulfilled, namely that the operator鈥檚 vehicles would be inspected at the 6 weekly intervals and that vehicle inspections and maintenance would be carried out by the stated maintenance provider.聽 Accordingly, I find that section 17(3)(a) of the Act is made out;

Undertakings recorded in the licence have not been fulfilled, namely that the operator would observe the rules on drivers鈥� hours and tachographs and keep proper records; and that the operator would keep records for 15 months of driver defect reports, safety inspections and routine maintenance and make them available on request. Accordingly, I find that section 17(3)(aa) of the Act is made out. 聽

The operator licensing regime is based on trust.聽 In NT/2013/82 Arnold Transport & Sons Ltd v DOENI the Upper Tribunal said:

• 鈥淭he Tribunal has stated on many occasions that operator鈥檚 licensing is based on trust.聽 Since it is impossible to police every operator and every vehicle at all times the Department in Northern Ireland (and Traffic Commissioners in GB), must feel able to trust operators to comply with all relevant parts of the operator鈥檚 licensing regime.聽 In addition other operators must be able to trust their competitors to comply, otherwise they will no longer compete on a level playing field鈥�cutting corners all too easily leads to compromising safe operation.聽 It is important that operators understand that if their actions cast doubt on whether they can be trusted to comply with the regulatory regime they are likely to be called to a Public Inquiry at which their fitness to hold an operator鈥檚 licence will be called into question.聽 It will become clear, in due course, that fitness to hold an operator鈥檚 licence is an essential element of good repute.鈥�

In view of my findings regarding the operator鈥檚 failure to comply with statements of expectation and licence undertakings I am entitled to question its fitness to hold a licence, which is an essential element of good repute. In considering whether it is proportionate to make a finding of loss of good repute, I have also had regard to the Senior Traffic Commissioner鈥檚 Guidance in Statutory Document 1 on good repute and fitness, which reminds me that a failure to supply records that a Traffic Commissioner has reasonably requested is likely to result in adverse findings against repute.聽 I have considered the relevant Upper Tribunal case law, including 2015/040 Tacsi Gwynedd Ltd, and 2019/011 V Larkin and others where the Upper Tribunal said:

• 鈥淚n the absence of such records, it is impossible to make an assessment of the roadworthiness or otherwise of the fleet and it is an irresistible conclusion flowing from that failure that it either demonstrates wilful disregard for compliance or that the operator has something to hide.鈥�

The operator鈥檚 failure to provide any of the requested documentation and its failure to attend the Public Inquiry hearing also go directly to the question of its fitness to hold an operator鈥檚 licence and I find that it has lost its good repute as an operator and no longer satisfies the requirements of s14ZA(2) of the Act. Its failure to provide the requested evidence of its financial standing leads me to find that I cannot be satisfied that the operator meets the requirements of s14ZA(2) of the Act as to financial standing and I find that the mandatory requirement is no longer met.

There was ineffective management control and insufficient procedures in place to prevent the compliance failures found.聽 There were ineffective or no analysis procedures in place to detect drivers鈥� hours and/or Working Time infringements and insufficient procedures in place to ensure appropriate use of tachographs or manual records by drivers. There was no tangible evidence before me of changes made to ensure future compliance.聽 The letter from Carl Smith of 6 August 2025 referred to changes made by the operator after the DVSA report, but there was no documentary evidence to support those assertions. 聽聽

I find that Keith Davey, in his capacity as transport manager, failed in his duty effectively and continuously to manage all the transport activities of the business, as required by the legislation. Specifically, I find that he failed effectively to monitor the brake testing arrangements, and the maintenance inspections and he failed to ensure an effective system for managing drivers particularly as to driver licence checking and compliance with drivers鈥� hours/working time requirements.聽 The evidence from Carl Smith, included in his letter of 6 August 2025, explains that he feels let down by his transport manager, Keith Davey.聽 He explains that the incorrect reliance on a drivers鈥� hours exemption applicable to the HGV industry, not for PSVs, was upon the advice of Keith Davey, who also advised the operator that it could throw away defect books after 28 days. Keith Davey has provided no evidence to demonstrate that he continues to fulfil the requirements of transport manager by showing how he effectively and continuously managed the transport operations of Herllo Ltd until his very recent and sudden resignation.聽 Nor has he provided any explanation or mitigation for his failings and, by failing to attend the inquiry hearing, has passed up the opportunity of giving evidence in that regard.

Considerations and Decisions in respect of the operator

I have weighed up these adverse findings with the positive features in considering regulatory action.聽 On the positive side, the operator did make some changes upon receipt of the initial DBA, as noted in the final report, and it did co-operate with the DVSA investigation.聽 I also noted that there were no road safety critical vehicle defects or prohibition notices reported. 聽

Balancing these negative and positive features and having regard to the Senior Traffic Commissioner鈥檚 Statutory Document 10, I consider this case to be in the 鈥渟erious to moderate鈥� category.聽 I have already determined that the operator no longer continues to satisfy the continuing and mandatory requirements to be of good repute and to have appropriate financial standing, for the reasons set out above.聽 I must therefore revoke this licence pursuant to section 17(1)(a) of the Act.聽 I direct that the licence is revoked with effect from 23:45 hours on 31 August 2025 to allow for the operator to be informed of this Decision and an orderly run down of operations.

Having concluded that Keith Davey has lost his repute as transport manager, as he no longer satisfies the requirements of paragraph 1 of Schedule 3 to the Act, for the reasons set out below, revocation of the licence is also mandatory under section 17(1)(b) of the Act.

I have given serious consideration to whether the operator and Carl Smith as director should be disqualified from operating in the future under section 28 of the Transport Act 1985.聽 The guidance to which I must have regard reminds me at paragraph 62 (Statutory Document 10) that whilst there need not be an additional feature before a disqualification order is made, it is not automatic.聽 My balancing exercise for revocation is relevant.聽 However, I note and give some credit to the operator for some changes that it did introduce following receipt of the DVSA report. I also note the representations made by Carl Smith about his lack of experience in the transport industry prior to the commencement of this licence and that he placed trust in Keith Davey as a professionally qualified transport manager. In not making an order for disqualification I acknowledge those factors.聽 This may allow the operator to return to the licensing regime should it wish to do so, but it will require a different approach to compliance.

Considerations and Decisions in respect of transport manager Keith Davey

聽In considering the good repute of Keith Davey as transport manager, I performed the same balancing exercise set out above in relation to the operator and have concluded that no transport manager presiding over that degree of non-compliance could retain his repute.聽 The lack of any evidence to show what Keith Davey was doing in terms of monitoring, reviewing and managing the maintenance arrangements and the driver licensing and drivers鈥� hours requirements is particularly concerning and leads me to conclude that he was not doing so or, if he was, the actions he took were ineffective.聽 In my Decision following the Public Inquiry hearing to which Keith Davey was called on 29 January 2025 (included at pages 110-114 of the Brief) I made adverse findings and determined that Keith Davey鈥檚 repute as transport manger was tarnished.聽 聽The role of the transport manager is a key one and I am satisfied on the evidence in this case that Keith Davey has failed to fulfil that role effectively, resulting in a clear risk to road safety.

Whether his failings as transport manager on this licence were due to the fact that he was unable continuously and effectively manage the transport operation because of his illness, or due to other reasons, I am unable to determine because he has not provided any evidence in that regard.聽 He has failed to meet the expectations that the public rightly have of him as transport manager to ensure that PSVs are operated safely and legally.聽

聽In considering whether his good repute is lost, rather than merely tarnished, I cannot avoid the comments of the appellate Tribunal in (2014/050) Andrew Harris trading as Harris of Leicester:

• 鈥淕iven the importance attached to operators complying with the regulatory regime and given that transport manager must 鈥渆ffectively and continuously manage the transport activities of an undertaking holding an operator鈥檚 licence鈥� it seems to us that whether or not an individual has the character, personality, ability and leadership qualities to ensure compliant operation as an operator or to effectively and continuously manage the transport activities as a transport manager is a factor which can properly be taken into account when assessing good repute.鈥�

The Tribunal has confirmed in (2014/058) Angus Smales trading as Angus Smales Eventing, that being a transport manager is far more than just holding the qualification. I find that Keith Davey has not demonstrated the ability to meet the statutory duty and that continues to be the case. 聽In the circumstances, and as was confirmed in (2015/049) Matthew Reynolds, I must find that the has lost his repute as transport manager and no longer satisfies the requirements of paragraph 1 of Schedule 3 to the Act.聽 I have considered whether such a finding would be a disproportionate response but have determined that such a finding is entirely appropriate and indeed inevitable on the evidence before me.聽

Having concluded that Keith Davey鈥檚 good repute is lost, I must also disqualify him under paragraph 7B(2) of Schedule 3 to the Act from acting as a transport manager on an operator鈥檚 licence.聽 Given that he has now resigned as transport manager on all licences, I assume there will be no adverse financial implications for him as a result of the disqualification. 聽I am aware that Keith Davey was awarded the PSV transport manager CPC in 1999 and that he completed some refresher training in 2021.聽 However, it is clear to me from the evidence that his understanding of the current legal and operator licensing requirements is inadequate and it is for that reason that I set as an appropriate rehabilitation measure the requirement for him to re-sit and pass the relevant transport manager CPC examination before the disqualification order can be cancelled or varied, pursuant to paragraph 7C(2) of Schedule 3 to the Act. 聽聽I consider that disqualification for a period of one year is proportionate and appropriate in the circumstances and that disqualification will commence at 23:45 hours on 31 August 2025.

Victoria Davies

Traffic Commissioner for Wales

21st August 2025