Decision

Decision for M Edwards Transport Ltd (OD1147825) & Transport Manager, Kevin Windle

Published 2 March 2023

0.1 In the West Midlands Traffic Area

1. Written Decision of the Deputy Traffic Commissioner

1.1 M Edwards Transport Ltd (OD1147825) & Transport Manager, Kevin Windle

2. Background

The operator company holds a Standard Operator’s Licence to operate nine vehicles and eleven trailers from Near Broadway Farm, Ford Heath, Shrewsbury, SY5 9NW.

The licence was granted on 16th March 2017.

The directors are Robert Edwards,(2.3.85), and Ruth Edwards, (12.3.56).

Kevin Windle, (19.2.76), is the designated Transport Manager.

On 17th November 2020 the operator company was called to a Public Inquiry in respect of maintenance and tachograph shortcomings. The licence was suspended for 14 days and the Transport Manager, director Robert Edwards, lost his good repute as a Transport Manager and was disqualified from acting in that capacity for 2 years.

An independent audit was requested by 30th April 2021 and this audit revealed a number of ongoing weaknesses in compliance systems.

In October 2021 DVSA Examiners commenced an investigation following reports of gross overspeeding. Traffic Examiner, Peter Yarranton, produced a statement of his findings in relation to the speeding, tachograph and traffic compliance. VE Dyfrig Williams reported on the maintenance systems.

As a result of the negative findings, the operator company was called to Public Inquiry by a letter dated 16th May 2022.

3. The Public Inquiry

At the hearing Robert Edwards attended on behalf of the operator company.

Transport Manager, Kevin Windle, attended and tachograph analyst, David Parry.

DVSA examiners TE Yarranton and VE Andrew Jones attended.

I heard evidence from all the above parties.

4. Findings on the Evidence

The evidence contained in the DVSA investigation reports and statements has not been challenged by the operator and I make the following formal findings:

1. Vehicles/drivers issued with prohibition notices – Section 26(1)(c)(iii).
2. Not honoured the undertakings signed up to when applying for the licence -Section 26(1)(f) - namely, 1. that vehicles and trailers would be kept fit and serviceable; 2. that the rules on drivers’ hours and tachographs would be observed and proper records kept; 3. that 15 months of driver defect reports, safety inspections and routine maintenance would be kept and made available on request; 4. 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.

The Transport Manager, Kevin Windle, admitted in interview and at the PI that his responsibilities had been largely confined to maintenance compliance. Even in that area his oversight was deficient, as seen by the prohibitions, MOT fail rate, the defects in preventative maintenance records and the weaknesses in the driver defect reporting system. He described his major achievement as shifting the maintenance of the vehicles from the operator company to the Scania dealership, yet this did not take place until November/December 2021 and he describes the director Robert Edwards’ resistance, “like moving an elephant”.

Traffic/tachograph compliance was “delegated”, or rather, left, to analyst David Parry whose reporting to the Transport Manager was weak. In the absence of a fully functioning Transport Manager, I find that much of the transport management was either ineffective or being done by Robert Edwards (planning, liaison with drivers) in breach of the TM disqualification.

I find that the operator company was using 15 trailers when only authorised for 11 and that Robert Edwards was not keeping full records of his work as a director, mechanic, in addition to his drivers’ hours.

Of particular concern is the number and gravity of the overspeeding offences identified on the tachograph records. The fact that these offences occurred against different drivers, including Robert Edwards, in different vehicles, negates any possibility of “technical errors”. TE Yarranton describes some of the overspeeds, (130-141 km per hour), as being as high as he has seen in his career and I share that observation.

The offences occurred over a number of months between February 2021 and September 2021. They were referred to in the April audit report and the response of the operator company has been woefully inadequate even to the extent that Robert Edwards, director, has speeding offences identified on his own tachograph records.

5. Considerations and Decision

The overspeeding, unreliable maintenance documentation, ineffective driver defect reporting and continuing transport management role of a disqualified transport manager amount to serious mis-conduct and they are wholly inconsistent with the relationship of trust that needs to exist between an operator and the traffic commissioner.

The operator company failed to heed the lessons of a recent Public Inquiry and I place the operator’s conduct in terms of the Senior Traffic Commissioner’s Statutory Document No. 10 – “Principles of Decision Making”, in the “Severe” category as deliberate or reckless acts that compromised road safety.

The starting point for regulatory action is revocation with detailed consideration of disqualification. If I asked the Bryan Haulage (no.2) (T/2002/217) question in isolation, “is the conduct such that the operator ought to be put out of business?” the answer is firmly “yes”.

However, I firstly consider the Priority Freight (T/2009/225) question; “how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime?” and weigh in the balance the positive features as at the date of the Inquiry.

The operator company has contracted with West Pennine Trucks, an authorised Scania dealer, to carry out the 6 weekly inspections on 6 specified vehicles. This has raised the standard of the preventative maintenance paperwork.

The operator company has introduced a mobile phone app, R2C, to formalise the driver defect reporting procedure.
David Parry, an experienced analyst has been engaged to report on the tachograph records. The reporting of infringements and the communication with the transport manager and drivers has improved since the investigation. The rate of infringements is low.

The operator company should be particularly grateful to DVSA Examiners who considered current maintenance and tachograph documentation on the morning of the hearing and reported “significant improvements” in the records.

Kevin Windle appears to have learnt from the investigation and from the hearing that the role of a transport manager is indivisible and that delegation of tasks does not remove legal responsibility or the duty to monitor and manage.

At the hearing there were some doubts as to the contractual and financial arrangments for the transport manager, but I received a signed contract and bank statements soon after the hearing that confirmed the formality of the relationship.

I find the transport manager, Kevin Windle, to be a trustworthy individual and I am satisfied that his commitment to work with Robert Edwards and David Parry to improve compliance is genuine.

On balance I am satisfied that the operator company can operate in compliance with the operator lic’sensing regime provided the support and safeguards put in place since the DVSA investigation are maintained by the operator company. As director, driver, mechanic and ex-transport manager, Robert Edwards was undoubtedly trying to do too much himself and his approach to compliance has been far too lax.

The licence is curtailed to 6 (six) vehicles and 10 (ten) trailers with effect from 1st September 2022 under Section 26(1) of the Act.

The following undertakings are placed on the licence:

i) Evidence of Financial Standing for the 6 vehicles authorised on the licence shall be produced for the months of December 2022, January and February 2023 by the 15th March 2023.

ii) An independent audit of the operator company’s compliance with maintenance and drivers’ hours requirements will be carried out by RHA, Logistics UK or other suitable independent body by 15th March 2023. The audit should cover at least the applicable elements in the attached annex. A copy of the audit report together with the operator company’s detailed proposals for implementing the report’s recommendations must be sent to DVSA and to the OTC in Birmingham within 14 days of receipt from the auditor.

iii) No application to increase authorisation shall be made until a (largely) satisfactory audit report has been produced.

iv) Kevin Windle, Transport Manager, is issued with a formal warning in respect of his failure to carry out constant and effective management of the transport operations.

I note that Robert Edwards’ Transport Manager disqualification is due to end on 17th November 2022 but having regard to the past transgressions and his other responsibilities as a director, he is required to retain external transport manager input for at least the next 12 months in order to safeguard this licence.

Anthony Seculer

Deputy Traffic Commissioner

16th August 2022