Decision

Decision for M & A Metals Ltd t/a Spartan Metal Recycling (OF1140256)

Published 23 October 2020

In the Eastern Traffic Area.

Confirmation of the Traffic Commissioner’s decision.

1. Background

M & A Metals Ltd trading as Spartan Metal Recycling holds a Standard International Goods Vehicle Operator’s Licence authorising 4 vehicles and 6 trailers. The Directors are Mannan Zaidi (Finance) and Isabel Neves. A third Director, Dr Ali Ahmed-Shuaib (Sales) was appointed in 2017 but has not been notified to the OTC. There is one Operating Centre at Spartan Metal Recycling, Oliver Road, Grays, Essex RM20 3AS. The declared maintenance contractor is Motoraid Ltd, undertaking Preventative Maintenance Inspections of vehicles and trailers at 6 weekly intervals. I noted an unsigned agreement (in the trading name) with Truck & Trailer Specialist Ltd at page 52 of the Operator’s bundle. That is now signed. Invoices (pages 60 to 68) from December 2019 to May 2020 suggest that this contractor may have been used.

Michael G Kelly has been nominated to act as Transport Manager by the Operator. The previous Transport Manager, Mr Raymond Blackley, acted in that capacity from 2015. He was previously a Director and Transport Manager of an operator in the West Midlands Traffic Area. Heavy Metal Movements Ltd was called a Public Inquiry on 6 December 2018 when the licence was revoked from 19 January 2019 and Mr Blackley was disqualified as an operator and Transport Manager for a period of 3 years. For some reason this was not referred to a Traffic Commissioner in respect of this licence.

There have been no previous inquiries, warnings or other regulatory action. DVSA commenced enquiries following a vehicle stop on 12 November 2019 when it was found that the tachograph unit had not been locked into the operator and that downloads had not occurred for 1382 days. The TM was not contactable, and no director was available, with responsibilities left in the hands of the one driver.

The operator’s application for a Period of Grace was eventually granted to the date of Public Inquiry. The company’s accounts are shown overdue on Companies House but an extension has been granted. ## Hearing

The operator sought an adjournment but noting that the matters of concern predated the lockdown, the operator had been on notice since the roadside check on 12 November 2019, was given further notice in correspondence dated 19 February 2020, and was slow to request a Period of Grace, that application was refused.

The Public Inquiry was listed for today, 28 July 2020, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was present in the form of Ms Neves, Director, accompanied Mr Ali Moderasi, Michael Kelly, nominated CPC holder, represented by Ms Astra Emir of Counsel, instructed by Mike Oliver, a Legal Executive with De Brett Solicitors.

2. Issues

The public inquiry was called for me to consider whether there were grounds for me to intervene in respect of this licence and specifically by reference to the following sections of the Goods Vehicle (Licensing of Operators) Act 1995:

• section 26(1)(b) - whether there has been a failure to notify a change in directors and/or professional competence;
• section 26(1)(e) - whether statements made on application have been fulfilled, specifically that Mr Blackley would exercise the duty as transport manager
• section 26(1)(f) - whether undertakings have been complied with, specifically that vehicles and trailers would be kept fit and serviceable; and that rules would be observed on drivers hours and tachograph records would be met,
• section 26(1)(h) - whether there has been a material change in the circumstances of the licence holder:
• section 27(1)(a) - whether the licence holder remains of good repute, has financial standing and is professionally competent
• section 28 - whether the operator etc should be disqualified.

In addition, I was to consider the application made to add Michael Kelly to the licence as Transport Manager.

3. Summary of Evidence

Traffic Examiner Ioan Olaru recounts the stop on 12th November 2019 when MX07EOJ, a 32 Tonne Heavy Goods Vehicle, being driven by Darren John Taylor. Traffic Examiner Islam analysed the digital data from the vehicle unit and the driver’s digital card and concluded that the company did not have a company lock in place on the vehicle tachograph unit and that data had never been downloaded. The last download was registered 1382 days prior to the date of the check.

Mr Olaru contacted the operator on 23 January 2020. He requested to speak to the responsible person for transport. He was put through to Driver Taylor. When he attended for the agreed appointment on 12 February 2020, he was again greeted by Driver Taylor. Whilst the operator had 2 vehicles specified: SF07BYM, at 44 tonnes and MX07EOJ, at 34 tonnes, Mr Taylor stated that he was the only driver employed by the company. The Operator also relied on a couple of agency drivers during the previous 2 years but there were no systems in place to deal with agency drivers. In fact, it emerged in evidence that whilst SF07BYM has been off-road for a long period, the Operator has been operating a hired in vehicle since 28 May 2020. It was clear that Ms Neves had no idea that the operator should have specified that vehicle. The Operator has failed to retain any maintenance records, believing that was the responsibility of the hire firm.

Mr Olaru was informed that the Director, Mr Zaidi would not attend and that he had been unable to contact the Transport Manager, Mr Blackley. He said that Mr Zaidi was aware of that fact and was in the process of notifying OTC. Mr Taylor could not remember the last time he had seen Mr Blackley.

The Traffic Examiner was told that the operator had received a new company card on 11 February 2020. In evidence I was told that the application had been made that same month. Mr Taylor indicated that he was now using Tachotek/Novadata to check for infringements. At the hearing I was told that only Mr Knott drives for the Operator now.

Mr Taylor also claimed to be responsible for monitoring vehicles tests, Preventative Maintenance Inspections and calibrations. He utilised a wall planner. To his credit the Examiner found the calibrations to be up to date.

In his report, Mr Olaru identified the following shortcomings:

• absent transport manager
• no driver training
• no system to monitor driver CPC
• no loading guidance or training
• no driving licence checks
• no journey or duty planning
• no system to issue/return print rolls and printouts
• no system for downloading vehicle units and digital cards,
• no disciplinary procedures in place
• no system for managing agency drivers
• no system to monitor and maintain compliance with WTD

The Traffic Examiner has noted that the failure by a transport undertaking to ensure that relevant data is downloaded within the relevant period might amount to an offence.

A response dated 24 February 2020 was received from the other known Director, Isabel Neves. She referred to the employment of Mr Blackley. She asserted that he attended to supervise and check/monitor the compliance records, procedures and performance. She accepts that he was not present but does not say when he last attended. The Operator did not know that he had been made the subject of a direction the previous year. She referred to the urgent actions to recruit a replacement.

Her response appears to take comfort that management control was marked as “mostly satisfactory”. She erroneously refers to responsibility for compliance resting with the former transport manager. She states that when Mr Blackley was not in attendance, Mr Taylor, “assisted with this and the associated procedures/records on a day-to-day basis”. She offered no explanation as to why the management of maintenance was left to Mr Taylor. Mr Blackley and Mr Taylor apparently reported to the operations manager, either through him or directly to the directors. She does state that “the directors are now much more closely involved in the overall supervision of compliance responsibilities” and refers to OCRS and VOL. It was previously understood that the former transport manager downloaded data from the vehicle units on a regular basis and within the 90-day maximum. There is no explanation as to how this belief arose and it was only then discovered that the company digital card was missing. It was also her understanding that the analysis produced by the software included working time directive compliance but is only now being reviewed. She accepted that the checks of Driver licences and driver CPC/training were inadequate. I can see 2 up- to-date checks for drivers in the Operator’s bundle (pages 69 to 72). Assurances were given that reference would be made to the Senior Traffic Commissioner’s Statutory Documents when looking for a new Transport Manager.

The analysis of the digital data indicates that the vehicle tachograph unit was never downloaded. That shows a lack of oversight by the Directors.

In her statement of 21 July 2020, supplied for the purposes of this Public Inquiry, Ms Neves explains that Mr Blackley was originally employed as a driver and part-time Transport Manager. He left the company’s employment in 2017 but was retained as the Transport Manager. Coincidentally, this arrangement was only due to last until September 2020. She refers to reliance on the operations manager, Mr Moderasi, and site supervisor, Andrew Perring. There was no indication how they were qualified to oversee the transport operation or on what basis the Directors assumed (paragraph 4) that Mr Blackley was carrying out his duties. Mr Moderasi confirmed in evidence that he has never been trained although Ms Neves has paid for a course, which he is yet to attend.

The statement was completed before the results of the recent DVSA Desk Based Assessment or update were known. I am assured that her attendance at training has opened her eyes, but not enough to ensure compliance, as at the date of the Public Inquiry.

A further statement was provided on the day of Public Inquiry, which I was persuaded to admit as evidence. The new contract with Truck & Trailer Specialists has now been signed and I am asked to change the licensing record to reflect this. I was referred to a letter from TTS dated 27 July 2020, which suggests adopting what it terms ‘static brake tests’ for trailers i.e. checks of the brake drum and disc and the shoes/pads. No reference is made to air brakes and the usual weight calculations; it offers no brake performance test and does not accord with the Guide to Maintaining Roadworthiness. She accepts that there are gaps in the maintenance records where PMIs should have taken place. If an operator relies on the vehicle being off-road, then it needs to implement a proper VOR system. I have seen a vehicle tracking record, but it does not provide adequate dates or odometer readings. I have also seen a laden brake test report for MX07 EOJ dated 10 February 2020. Ms Neves tells me that she appreciates the importance of the declaration of roadworthiness. I am not sure I understand why there is still a 24-hour delay in the supply of completed inspection forms. It is intended to delegate cross-checks to Mr Kelly but I was impressed that Ms Neves will employ her own checks of maintenance and other compliance documentation to be employed at weekly meetings with Mr Moderasi.

3.1 Professional Competence:

I refer to the roadside check on 12 November 2019, the subsequent findings of DVSA and the correspondence submitted by Ms Neves. Mr Blackley was not contactable in advance of the DVSA visit on 12 February 2020. It then emerged that Mr Blackley did not enjoy a Certificate of Professional Competence and could not act in the capacity of Transport Manager. In any event, there was no system in place for checking drivers’ licences, there had been a failure to download and therefore analyse driver data, there was no evidence to show compliance with the Working Time Directive. Driver Taylor had assumed responsibility for the management of maintenance and record keeping. Mr Taylor could not recall when Mr Blackley had last been on site. What is described does not amount to effective and continuous management.

The operator made an application on 5 May 2020 to nominate Michael Kelly as Transport Manager. The licensing team of the OTC requested a completed TM1 form and details of Mr Kelly’s up to date training. The operator was notified that I would convene a Public Inquiry on 27 May 2020.

On 2 June 2020, an email was received indicating that the operator had contracted Linda Howes of Classic Transport Consultancy Ltd to act as a consultant. It also referred to certificates showing that Mr Kelly had undertaken a CPC refresher course on 29 and 30 April 2020, and to a TM1 Declaration.

Following the earlier commitment to Statutory Document No. 3, and in light of previous failings, I requested a statement on how Mr Kelly intended to meet the statutory requirements of the licence going forward. This request for further documentation was apparently sent on 30 June 2020. It was chased on 7 July 2020. I refer to the statement received on 9 July 2020.

I requested DVSA to provide me with an up to date assessment of compliance from an Examiner’s consideration of the Operator’s documents. I refer to the letter dated 21 July 2020 from Traffic Examiner Chris Slowley. I am aware of the notification of Directors and nominated Transport Manager.

• Mr Slowley appears to confirm that:

• the maintenance contract is unsigned
• vehicle and trailer inspection intervals have been extended
• defects listed on the PMI sheets are not shown as rectified
• there are no inspection records for trailer C101223, after 17 September 2019
• there is no evidence of brake tests being carried out
• that declarations of roadworthiness are not always signed.
• there is no evidence of a wheel retorque procedure being employed
• the forward planner does not show which vehicle/trailer is due for inspection
• in the period 19/3/2020 – 30/4/2020, there were infringements on 18 and 19 February 2020 with a power interruption of 53 hours and 25 minutes on MX07 EOJ on 8 May 2020
• there is still no WTD reference period and no work schedule.

Advice was required on forward planning, monitoring of defects at PMI and through the DDRS, with recurring defects. I refer to what has been produced for me today. I have noted the Forward Planner although my copy was difficult to read. It refers to MoT dates, appears to refer to quarterly brake checks and to insurance. A planner should also refer to calibration and VED dates. Mr Slowley was not provided with inspection records for the hired in vehicle.

Mr Kelly refers to his attendance at a two-day virtual CPC refresher course on 29 and 30 April 2020, with certificate of attendance attached. I was led to believe by Ms Neves that he has already commenced his duties but at paragraphs 6 to 12 he refers to reviews of the compliance systems which are yet to be carried out:

• DDRS and cross-checks with the Preventative Maintenance Inspections
• Gate checks, necessary to audit the quality of driver defect reporting
• Arrangements for the presentation of vehicles for inspection and brake tests and annual test preparation
• Wheel-off and retorquing arrangements
• Use of Novadata software for tachograph analysis and infringement reporting (11 and 24 April and 8 May 2020 noted)
• Safe loading

From my observations of the latest inspection available, that review needs to be commenced as a matter of urgency and may initially require more than the 6 hours which he will devote per week to this operation. Ms Neves tells me that he has been engaged. I therefore proceeded to ask him about the documentation produced and that handed in after the start time for the Public Inquiry today. Mr Kelly was impressive in his evidence and correctly identified that the Guide to Maintaining Roadworthiness advocates roller brake testing at every inspection. He shared my concern at the contractor’s proposals for trailer testing. I am told that these arrangements will change; they must.

I referred to the maintenance records supplied at pages 13 to 50 of the Operator’s Bundle and additional pages on the morning of the hearing. I could not find a single metred brake test. Items 71 to 73 were invariably left blank, even where work has been carried out on the brakes (page 48). Putting aside the 15+ week gap between 19 March 2020 and 30 June 2020, I was concerned to note the number of driver detectable defects and the number of defects without any apparent rectification work. Neither of those forms confirmed the roadworthiness of the vehicle, MX07 EOJ, nor is there a contractor’s stamp. The form for March does at least suggest that rectification work was carried out. The signature has not been copied on a number of other pages in the Bundle. The driver defect report for 20 March 2020, shows a Nil return, as does the report for 25 June 2020. Records between 12 January 2019 and 10 February 2020 show a mixture of similar issues and are occasionally counter-signed but with no brake test.

As per 2011/036 LWB Ltd it is for the applicant or operator to satisfy the Traffic Commissioner that the person concerned can fulfil the role of transport manager. I am persuaded that Mr Kelly meets the statutory criteria and is capable of exercising effective and continuous management in a way that Mr Blackley never did. He cannot allow himself to become a voice on the end of the telephone, commenting on the actions of Mr Moderasi, who was not qualified to assess the level of compliance. He assures me that he will resign rather than put his reputation and CPC at risk.

4. Determination

I am satisfied to the civil standard that I should make adverse decisions under section 26(1)(b), (e), (f) and (h).

As explained, my starting is the question posed in 2009/225 Priority Freight: how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime? The Transport Manager appointment offers some assurances as to future conduct but there is a considerable amount of work to do in order to become compliant.

As in 2012/025 First Class Freight:

While it is true that a transport manager must “effectively and continuously” manage the transport activities of the undertaking for which he or she works and is now required to be familiar with a wide range of topics, including the law in relation to operator’s licensing, that does not mean that the person or persons who control an entity which operates heavy goods or public service vehicles is or are absolved of responsibility. Such a person must know enough to ensure that someone employed as a transport manager is up to the job and they must also be able to supervise them to ensure that they do a proper job. It is, after all, for the director or directors of a company to set the standards which the employees are required to meet.

I retain real concerns in this case, for the reasons outlined above.

As the Upper Tribunal remarked in 2013/082 Arnold Transport Ltd:

The grant of an operator’s licence does not mean that an operator can then proceed on the basis that the requirements that must be met in order to obtain a licence can thereafter be disregarded. In our view it is clear both from the terms of the … Act and from Regulation 1071/2009 that these are continuing obligations, which an operator is expected to meet throughout the life of the licence.…… 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’s licence will be called into question. It will become clear, in due course, that fitness to hold an operator’s licence is an essential element of good repute…. The attitude of an operator when something goes wrong can be very instructive. Some recognise the problem at once and take immediate and effective steps to put matters right. Others only recognise the problem when it is set out in a call-up letter and begin to put matters right in the period before the Public Inquiry takes place. A third group leave it even later and come to the Public Inquiry with promises of action in the future. A fourth group bury their heads in the sand and wait to be told what to do during the Public Inquiry….. However, it seems clear that prompt and effective action is likely to be given greater weight than untested promises to put matters right in the future.

Ms Neves has attended OLAT on 23 April 2020 (Operator Bundle page 82). The Vehicle Test History for the last 2 years shows an initial pass rate of 50%, with two tests undertaken but the final pass rate is 100%. The operator has received no prohibitions or fixed penalties. That record is tempered by the failure to specify a vehicle in operation. I accept that there was no malintent, but other operators must be able to trust compliance by others or the system will fail.

This is the first Public Inquiry, but the operator has yet to achieve compliance even after the intervention of DVSA. As the Upper Tribunal has recently identified in 2019/025 John Stuart Strachan t/a Strachan Haulage: “one of the aims of the regime is deterrence, both for the appellant and for operators as a whole, who might be tempted to flout the system”. Such intervention is required here with the object of encouraging sustained compliance by this operator in future and to take the extra steps necessary to achieve the basic requirements of the Operator’s Licence. I listened to the cost of outsourcing and that operations are limited to two vehicles, although one has never been specified. The licence will be curtailed by 3 vehicles for one month commencing on 23:45 on 28 July 2020. Its repute is now severely tarnished but it has been allowed to continue operating.

To confirm, any application involving Mr Blackley will now need to be referred to a Traffic Commissioner.

RT/TC/28/7/20