Decision

Decision for Rapid Hire (Swindon)

Published 17 June 2022

1. RAPID HIRE (SWINDON) LTD: OH1000293

2. PUBLIC INQUIRY IN BRISTOL

2.1 23 SEPTEMBER 2021

3. BACKGROUND

Rapid Hire (Swindon) Ltd holds a restricted goods vehicle operator’s licence authorising the use of three vehicles from a site in Wotton Bassett, Wiltshire. Three vehicles are in possession. The licence came in to force in 2001. The sole director is Robert Pasqualitto.

The operator was called to public inquiry on 6 March 2014 following a DVSA maintenance investigation that found shortcomings. The decision was as follows:

Pursuant to findings Under Section 26(1)(c)(iii), (ca) and (f) of the 1995 Act, the Licence is Curtailed to 2 Vehicles with immediate effect until 23:59 hours on 29th May 2014.

S22RAP is the nominated vehicle to be removed from the Licence.

The following Undertakings have been attached to the Licence:

The vehicle disc for S22RAP shall be returned to the Office of the Traffic Commissioner, Jubilee House, Croydon Street, Bristol BS5 0GB by 20th March 2014.

Original bank statements or bank stamped print outs are to be lodged with the Office of the Traffic Commissioner, Jubilee House, Croydon Street, Bristol BS5 0GB by 20th March 2014.

The Director shall attend an established one day operator licensing awareness seminar presented by a trade or recognised training organisation by no later than 22nd May 2014. Proof of attendance at the said course is to be received by the Office of the Traffic Commissioner, Jubilee House, Croydon Street, Bristol, BS5 0GB within 7 days of attendance.

On 30 November 2020, vehicle LK08HLV was encountered by DVSA. It was issued with an immediate prohibition for three items:

1. Tyre cut so that cords were exposed

2. A second tyre cut so that cords were exposed

3. Severely contaminated brake lining material and braking efficiency impaired (tested to confirm) o/s/r axle 2

The issuing Vehicle Examiner annotated the prohibition to the effect that the defects were caused by a significant failure of compliance systems.

On 10 December 2020, Vehicle Examiners John Burningham and Gary Beck visited the operating centre and found shortcomings across a wide range of areas. The Vehicle Examiners could not locate the stated maintenance provider, Maxfield Motors. A phone number provided by the operator for the maintainer was answered by a landscape gardener. Mr Pasqualitto admitted, in interview under caution, to creating the records himself.

DVSA Traffic Examiner Gregor Bell visited the operator on 16 March 2021. Mr Bell found that the tachograph downloading equipment was not being used. Driving licences were checked annually, not quarterly. Mr Bell found no evidence of any significant drivers hours or tachograph infringements.

These reports caused me to call the operator to public inquiry.

4. THE PUBLIC INQUIRY

Mr Robert Pasqualitto attended the inquiry unrepresented. I confirmed with him that he was aware of the possible outcomes from the hearing. Vehicle Examiner Gary Beck attended for DVSA. I had also called John Burningham but he had since left the Agency.

Proceedings were recorded and a transcript can be made available if required. I record here only the relevant parts of the evidence. In preparing this decision, I have taken as reference my public inquiry bundle, the operator’s compliance documents, my notes and I have listened to the electronic recording.

I confirmed that Mr Pasqualitto had the public inquiry bundle with him. I asked why he had failed to comply with the direction in the call-in letter with compliance documents provided only on the morning of the inquiry rather than seven days in advance. Mr Pasqualitto told me that he had been ill with Covid and not in work the previous week. He had picked up the records that morning. He had forgotten to bring the finance documents. I confirmed that Mr Pasqualitto was aware of the possible outcomes and had made a positive decision not to be legally represented.

Vehicle Examiner Gary Beck introduced himself. Mr Beck confirmed that he had been present at the interview under caution conducted by Mr Burningham and could adopt the record of it (at page 110 of my bundle) as evidence. Mr Pasqualitto had no questions for him. Mr Pasqualitto did not recognise Mr Beck but Mr Beck confirmed that he was present; he may look different because he was now wearing a shirt and tie and was previously wearing a face-covering.

I referred Mr Pasqualitto to the inspection report for a Mitsubishi 7.5 tonne vehicle S22RAP dated 27 July 2021. The vehicle had a number of safety critical defects that had not been repaired. The driver had signed a disclaimer to allow the vehicle to be released to him. Mr Pasqualitto told me that the broken spring had been replaced. It had failed the brake test because the pads were low. I asked under what authority a driver would sign a disclaimer to drive a known unroadworthy vehicle on the road. I asked for evidence that the defects had been rectified. I was told that the receipts were in the office. I asked why Motus (the maintenance provider) did not repair the defects. I was told that it was not about money but lack of capacity at Motus.

Mr Pasqualitto told me that the business was tool and plant hire. Seventy percent of the business relied on the HGVs. Maxfield Motors had just disappeared about a year before the Examiners visited. I asked what inspection was conducted before he completed the PMI reports. Mr Pasqualitto described what sounded to me like a drivers daily walk-round check. He had a workshop but no pit or anything like that. He had borrowed a decelerometer from Basset Service Station. He hadn’t checked whether it was calibrated. I asked Mr Pasqualitto to describe an inspection routine. He said he started with the tyres, then the lights, the washers the horn. He would get someone else to get underneath it to make sure “nothing was hanging off it”.

I asked Mr Pasqualitto again to take me through an inspection procedure. He told me he would start at the front and work to the back and get underneath as much as he could. He had a background as a car mechanic. He had never attended any training on how to inspect a truck.

Mr Pasqualitto forged the signatures because “he wanted it to be right”. I asked why there had been a delay moving maintenance providers from Maxfield to Motus. He had tried the Iveco dealer and then Imperial (which had become Motus) but they had been unreliable with vehicles waiting for weeks for work to be carried out. A new company, Sparks, had been to see him and he wondered whether he should move to them. I noted that the 27 July PMI for S22RAP said that the tachograph calibration was due on 30 July but the certificate was not issued until 1 September. They had forgotten to take it.

Mr Pasqualitto was trying to be compliant but it was too much for him. He had got his first vehicle with a digital tachograph some years ago. I referred to the report of Traffic Examiner Gregor Bell at page 121 where it stated “Tachomaster smart terminal just purchased awaiting connection. Downloading not done yet”. Mr Pasqualitto did not realise he had to download them. He bought the downloader as soon as Mr Bell told him but he couldn’t operate it so he now had HTC come in every month to do it.

I asked about the future plans. Mr Pasqualitto wanted to get things right then retire. There were plans for that to happen by the end of the year, possibly the start of next year. He was sole director and sole shareholder.

I reviewed again the maintenance records. I asked for the first-use inspection for YK17LFA which had been purchased in July. There hadn’t been one. I retired to consider the inspection reports in detail. Having done so, I determined that immediate action was necessary on safety grounds and pursuant to a finding under Section 26(1)(b), that maintenance arrangements had been changed without being notified, I suspended the licence with effect from midnight, Friday 24 September 2021 until all three vehicles had been inspected by a franchised dealer, with a laden roller brake test and all safety-related items signed off as rectified. I reserved the remainder of my decision.

5. CONSIDERATION AND FINDINGS OF FACT

The sole director admits that he has forged the maintenance documentation on multiple occasions. He has signed-off vehicles as roadworthy without any competent individual having inspected them and without any under-vehicle inspection facilities. On one inspection, service brake performance is recorded at 49%, below the legal minimum, and still signed off as roadworthy.

Following the DVSA investigation, inspections were moved to Motus, a DAF franchised dealer. This is the inspection summary for S22RAP on 27 July 2021:

Seven defects have been identified which need rectification. Amongst them is a failed brake test. A section of a leaf spring is missing. Rather than have these defects repaired, the driver signs a disclaimer and takes the vehicle away with these defects, some apparently safety-critical, still present:

It then appears that Mr Pasqualitto works his way through the list of jobs but no evidence was provided of that or over what timescale – the tachograph was not calibrated until 1 September 2021, over three months after first appearing on a PMI and over a month after the calibration had actually expired. Were other defects rectified in a similarly tardy fashion? Or at all? Two are not initialled by Mr Pasqualitto. He told me that the brake test failure was down to low brake pads. The friction coefficient of brake pads does not generally change as they wear (assuming they are not down to metal which is not indicated here). There is no detailed brake test printout as would be expected so it is impossible to know for certain what the issue was. However, the summary of the brake readings shows that at least half the wheels locked so it would appear to be a specific problem with a single wheel perhaps causing an imbalance. Or it could be brake bind caused by seized components. It could be all manner of things and there is no way of knowing, from the records available, what the defect was and whether it was ever rectified. Having changed the brake pads, there was no confirmatory brake test. We simply do not know whether this vehicle, which was in service at the time of the hearing, still had a serious braking defect.

In relation to this vehicle, all the driver defect reports are either nil defect or annotated “all good”. Not one defect is recorded. That seems significantly at odds with those identified at the July inspection. The driver seems oblivious to the engine warning light on the dash, the missing wiper blade and the insecure seat. With reference to the sheets kept on a spike as shown at page 107 of my brief, it seems highly questionable whether any reported defect would ever generate any rectification action.

Taking vehicles from the maintenance provider with defects not rectified is not an isolated incident. I note the following record for vehicle LK08HLV:

Again, the brake test is failed and no rectification. This is the vehicle which was prohibited on 30 November 2020 for severely contaminated brake lining material and braking efficiency impaired on o/s/r axle 2. It could just be an enormous coincidence but it seems that Mr Pasqualitto may have changed the brake linings to have the prohibition removed but the core defect, the leaking hub oil seal which most likely caused the contamination, was not repaired. This appears to be a clear indication of Mr Pasqualitto’s lack of technical ability yet he is signing vehicles off as roadworthy.

So I have no hesitation in finding that, as at the time of the inquiry and for the previous year at least, this operator failed to have in place arrangements to ensure that vehicles were fit and serviceable and that drivers were recording defects in writing. Section 26(1)(f) is made out and I attach significant weight.

Most vehicles have private plates so it is difficult to tell their age. However, vehicle GN08OLC was specified on the licence on 28 August 2008. Having been first used after May 2006, it will have been fitted by law with a digital tachograph. On 16 March 2021, Traffic Examiner Bell notes that the Tachomaster terminal is awaiting connection, that downloading has “only just started” and that the operator has “not used the software yet”. Mr Pasqualitto told me that he had bought the Tachomaster terminal on the advice of TE Bell presumably when notified of the visit. So, for over twelve years, this operator has failed to comply with the downloading requirements of Section 97D of the Transport Act 1968. It follows that there has been no analysis of the data from the vehicle unit and so it will have been impossible for the operator to know whether any driver has been driving without their card in the tachograph head. Drivers have all sorts of motives for breaking the rules, often personal, often very simple such as needing to be home for the school run. Analysing only the driver card data is only doing half a job and fundamentally breaches the requirement to observe the rules on tachographs and drivers hours and keep proper records. Section 26(1)(f) is further made out and I again attach significant weight.

I turn now to the operator’s fitness to be the holder of a goods vehicle operator’s licence. The maintenance and tachograph failings are strongly negative features. More negative still is the operator’s fabrication of maintenance records during 2020. From page 66 to 102 of my bundle, I can identify sixteen occasions when Mr Pasqualitto has forged a signature of a Mr Maxfield. Such an action totally destroys the trust that must exist between the regulator and the regulated. I also take in to account he operator’s failure to comply with the directions in the call-in letter to provide documents in advance. Financial evidence has not been provided at all. Mr Pasqualitto did not seek legal representation which calls in to question whether he really understood the severity of the situation. I was also struck in the hearing by his apparent disengagement from the process until I made my decision to suspend the fleet.

There are some positives. Inspections were outsourced following the DVSA investigation and happened more or less on time. I found no particular issues with the records for Y1RAP, the 4-axle Scania beaver-tail. Newer vehicles were purchased. The Traffic Examiner scored the traffic management systems as unsatisfactory but just short of the “report to OTC” threshold and found no significant drivers hours matters. Mr Pasqualitto attended the hearing.

So I perform a balancing exercise but the few positives can do nothing to counteract the negative weight deriving from the forging of maintenance documents let alone the other very serious failings. Whilst this is a restricted licence, I am aware that the business is not viable as currently constructed without the use of goods vehicles. I am also aware that there are plans for a change of ownership. Having satisfied myself through the suspension action (which is still in place as I write this), I am content to allow a longer than normal period for revocation to take effect.

Robert Pasqualitto is sole director and shareholder. It is therefore appropriate that I pierce the corporate veil and consider his conduct and that of the company as one. Disqualification action after revocation is not automatic but this case has a very serious aggravating feature in the forgery of the maintenance documents. It is also the operator’s second inquiry and the breaches across both traffic and roadworthiness are very serious. I refer to paragraph 103 of the Senior Traffic Commissioner’s statutory document number 10 which indicates that a disqualification period of between 5 and 10 years is appropriate where an operator deliberately puts life at risk, knowingly operates unsafe vehicles or permits falsifications. The document refers to tachographs but maintenance is equally serious. I take in to account the sixteen forged records where no meaningful inspection was carried out. I also take in to account the vehicle being driven away from the maintenance provider having failed a brake test. Twice. Those steer me to the top end of the scale.

I did not specifically ask the question at the hearing but it is obvious that disqualification of the company would be the end of the business. I do not want to get in the way of Mr Pasqualitto’s retirement; quite the opposite where operating vehicles is concerned. So, whilst I disqualify him personally for ten years, my order of disqualification for the company is indefinite in that I will permit an application at any time for the disqualification to be lifted. Clearly, that could only happen if I were satisfied that the influence of Mr Pasqualitto was nowhere to be found in anything to do with the operation of goods vehicles.

6. DECISION

Pursuant to findings under Section 26(1)(f), that there are not, and have not been, proper arrangements for keeping vehicles fit and serviceable nor for compliance with the rules on drivers hours and tachographs, the licence is revoked.

Pursuant to a finding under Section 26(1)(h), material change, in that the operator is no longer fit to be the holder of a goods vehicle operator’s licence, the licence is revoked.

Having managed the road-safety risk by a period of suspension until all vehicles are signed-off as roadworthy, revocation will take effect from 8 January 2022.

Having by his own admission falsified multiple sets of maintenance records and allowed vehicles to be removed from maintenance providers with dangerous defects present, Robert Pasqualitto is disqualified from applying for or holding a goods vehicle operator’s licence in any traffic area from 8 January 2022 for ten years.

Arising from the same conduct, Rapid Hire (Swindon) Ltd is disqualified from applying for or holding a goods vehicle operator’s licence in any traffic area from 8 January 2022 and indefinitely. The company has leave to apply to have this order removed at any time on demonstration of a full and meaningful change in control of the business.

Kevin Rooney

Traffic Commissioner

8 October 2021