Decision

Decision for Adnan Manzoor t/a CMH Haulage (OF2012950)

Published 23 October 2020

In the Eastern Traffic Area.

Confirmation of the Traffic Commissioner’s Decision.

1. Background

Adnan Manzoor, trading as CMH Haulage holds a Standard National Goods Vehicle Operator’s Licence authorising 9 vehicles only, granted from 31 May 2018. He has acted as the nominated Transport Manager since the date of grant.

There are one Operating Centre: Unit 3 Former EEDR site, Beacon Hill Industrial Estate, Botany Way, Purfleet RM19 1SR. There are two declared contractors showing on the licensing record: Imperial Commercials and Roger Pearce, undertaking Preventative Maintenance Inspections of vehicles at 6 weekly intervals. Written representations referred to the use of KA Commercials from January 2019, with notification having been sent to OTC.

The operator was issued a formal warning on 9 July 2019 in respect of an incorrectly fitted number plate. This operator was the Director and Transport Manager for CMH Haulage Ltd, which held OK1118818, authorising the operation of 9 vehicles. That licence was surrendered when there was a change of Operating Centre. A warning was issued in April 2017 due to maintenance failings, after the operator offered undertakings to address the deficiencies in maintenance.

The operator was also nominated as a proposed Transport Manager for Premier Haulage (UK) Ltd, OF1135092, having resigned as a director from 30 May 2019. An application to surrender was refused. The licence was revoked at Public Inquiry in June 2019. Mr Manzoor’s repute was severely tarnished, and he was issued with a strongly worded formal warning. I am told that the operator and his wife, Hina, purchased the share capital in February 2017 for £40,000. The previous Directors had resigned by 9 January 2018. He was appointed a Director on 23 January 2018, promptly resigned but was reappointed on 25 February 2018 with the intent of protecting his financial interest. The couple separated in April 2018. Mrs Mirza took responsibility for the major failings but Mr Manzoor was Director for a period. The operator displays insignia suggesting that he enjoys status as a registered waste carrier and FORS Gold fleet operator. Written representations submitted on behalf of the operator explain that ‘CMH Haulage’ is in memoriam of the operator’s late father. They confirm that he has no involvement with the business of his brother, Farrakh Manzoor, whose sole trader licence was revoked, and he was disqualified. The operator was Transport Manager for his sister, Negath Manzoor, from August to October 2013. He attended the hearing into OK1079602. That licence was revoked on 17 December 2013.

2. Hearing

The Public Inquiry was originally listed for 30 March 2020 but that was postponed due to the pandemic. It was relisted for today, 3 August 2020, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was present, accompanied by Terry Collins (manager of the maintenance contractor) and represented by Ms Carolyn Evans, a solicitor of CE Transport Law.

3. Issues

The public inquiry was called for me to consider whether there were grounds 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) condition to notify relevant changes and specifically in relatiion to maintenance
• section 26(1)(c)(iii) prohibition notices
• section 26(1)(ca) Fixed Penalty Notices
• section 26(1)(e) statement as to maintenance arrangements
• section 26(1)(f) undertakings and specifically relating to vehicles being fit and serviceable, driver defect reporting
• section 26(1)(h) material change;
• section 27(1)(a) repute, financial standing and professional competence by reference to the statutory requirements on the Transport Manager
• section 28 disqualification of the operator to be considered

The operator’s licence is in the name of the sole trader. I was told about the impact of the move in Operating Centre and the operator’s divorce. On the basis of representations about a ring-fenced account, I allowed a Period of Grace to establish financial standing until the date of the Public Inquiry and based on an adverse finding under section 27(1)(a). I refer to the averaging exercise, which shows sufficient funds (page 100, subject to the usual restrictions on disclosure).

4. Summary of Evidence

The operator was issued with an S marked prohibition on 15 November 2019 when vehicle SF17 WHG was found to have a tyre worn below the legal limit for tread and to be untaxed. The prohibition was reported by the operator. The tyre tread on the offside inner tyre on the 4th axle was measured at 0.82mm. The vehicle had been inspected on 11 October 2019 (just over 6000kms previously) when the tread was recorded as 2mm. In representations it was accepted that the defect should have been identified by the driver on a walk-round check. No driver report was produced and the previous two days had not been signed. Driver Daian received a written warning (page79 to 80) and has been instructed and monitored.

On 6 December 2019, Vehicle Examiner Peter Forshaw carried out an announced visit. Mr Forshaw identified the following shortcomings:

• High roadside prohibition rate (40%) with a large number of driver detectable defects
• Change of maintenance contractor, without notification, to K A Commercials.
• Concerns as to the validity of inspection forms, which also fail to refer to all relevant items in the Inspection Manual etc
• No evidence of driver walk-round on 15 November 2019
• Weaknesses in the DDR system, with inadequate pro-forma, missing signatures and first use checks including the date of the prohibition.
• Concerns regarding the qualification of the maintenance provider
• Concerns as to the currency of the operator/TM’s knowledge.

The Operator sent a response to this report (pages 86 to 87), in which he adopted the advice from the Examiner, provided a copy of the proposed mid shift tyre checks and the provisional form for completion after the YouTube video on driver defect reporting had been viewed by drivers. I have now seen records of checks carried out by CMH Haulage of YN15 2PT, SH66 FEO and YN64 LFA for 27 to 31 July 2020. Mr Manzoor stated that having passed his Transport Manager CPC in June 2012, he had attended a TM Refresher Course and New Operator Seminar. He blamed the DDR failures on one driver, and that new training procedures are in place along with vehicle inspection equipment. The driver responsible for missing the defect that lead to the prohibition was issued with a written warning and a fine by “the company”.

Operators are not asked to maintain a percentage of safety - the undertakings contain no such qualification. 5 of the 8 prohibitions issued in the last 2 years relate to issues with tyres (pages 58 to 65, including the photograph at 57). I am told that the operator is in the business of muck away. He is therefore aware that the vehicles are operating on unmade surfaces at construction and landfill sites. There is a high turnover in drivers. I was told in representations that he understands the need to adopt a risk-based approach to his compliance. In addition to mid-shift tyre checks, the operator has arranged for a commercial tyre company to attend at weekends. I have seen records produced by Proplant for 16 April 2020 and 25 July 2020. Mr Forshaw issued Driver Rut with an immediate prohibition notice on 3 February 2020, whilst driving WU14 EUJ. A piece of brick had become lodged in the tyre. The Driver had not prevented this. Additional driver defect training was delivered on 16 March 2020.

The Examiner was concerned about the oversight of drivers. I am told that the operator has been carrying out ‘occasional’ gate checks since 9 December 2019. These are now separately logged and I have seen a copy (at page 143) from December 2019 to March 2020, which confirms that drivers had missed defects. The log produced today shows 9 gate-checks carried out since the start of April 2020. I have noted that the operator had chosen to employ a weekly defect reporting sheet (example at page 136). I am unclear why training with Mr Buckell should have delayed the move to daily records. I have seen a log to confirm the issue of Defect Books to drivers on 7 April 2020. I noted the postponement of a consultancy visit/toolbox talk by TAC Transport, scheduled for 27 March 2020 (page 142). That will apparently take place on 14 August 2020. The correspondence indicates that toolbox talks and the DVSA video have been delivered. Photographs at pages 181 and 182 show a large gravelled area at the Operating Centre but the vehicles appear to be parked so closely together that an effective driver walk round would be difficult. I explored this further in the course of the hearing. I was concerned that previously not all rectification work was being logged. I have seen a manuscript list of work undertaken from pages 144 to 153. I am unclear whether there was an equivalent driver defect report for all or some of the 183 recorded incidents. The operator tells me that he now attends the OC for the start time of operations and has picked up far more driver detectable defects than the log would suggest. He fails to use the log for that purpose, which is not reassuring.

I am told that the operator has worked with the maintenance provider to determine the best training. I was told that the operator had moved away from Mr Pearce, in order to improve the regularity of inspections. He moved to KA Commercials after the ‘S’ marked prohibition on 6 June 2018, and immediate prohibition on 3 September 2018. KA Commercials is on the same site and has a roller brake tester. The new manager, Mr Collins, may not be IRTEC accredited but he gained master technician recognition whilst working with Volvo. I understand that he likes to keep his records in pristine condition but I expect to see the working notes produced as part of the full maintenance record.

I am referred to the 100% pass rate. Mr Forshaw expressed concerns at the physical state of the site, the qualifications of the fitter and the approach to when the forms were actually completed. The operator did not feel sighted on those criticisms. It appears that the FORS audit completed in 2019 did not identify the issues set out in this decision. The site has improved drainage and gravel surfaces, but no electricity in the parking area. FTA generated forms are said to be in use. I have seen examples from page 160 onwards. An example of the earlier version is at page 118 to 119. Inspections for YN64 LFA dated 13 March 2020, CM11 MUK dated 21 March 2020, WU14 EUJ same date, are all accompanied by roller brake printouts and electronic records of rectification work. The brake test of CM11 MUK shows that the secondary brake locked before reaching the required level of performance and the test of WU14 EUJ was not sufficiently loaded so that all brakes locked where brake pads had apparently been replaced. All of the inspections show a number of rectifications. A driver defect report on CM11 MUK shows that an ABS light, washer jets and marker light damage were identified on 20 March 2020 but signed off as roadworthy but only rectified on 21 March 2020.

The requested Desk Based Assessment was not completed and available for the purposes of this Public Inquiry. Many of the records were still with DVSA but I was able to view Preventative Maintenance Inspection records for S17 WHG. The operator told me that he was committed to roller brake testing of brakes at every other inspection. These records called this into question but also indicated that there was no brake test at the other inspections. This is particularly concerning where work on brake components has taken place, for instance the replacement of brake pads on 3 of the axles. In my examination of the inspection records I had cause to consider the daily driver defect reports. I saw a report for this vehicle which suggested that the vehicle had been permitted to travel some 400km with a tyre defect. I was then told that drivers alter the original record at first use, if a defect develops during the day. This results in inaccurate records, which are difficult to audit. The claim to improvements in the driver defect reporting system are somewhat undermined by the failures in recording, to which I have referred. That must be addressed immediately.

5. Determination

I am satisfied to the civil standard of proof that I may make adverse findings under section 26(1)(b), (c)(iii), (ca), (e) and (f).

Since grant in 2018 the Operator has been issued with 6 prohibitions (2 S-marked) and 1 fixed penalty notice. This Operator has a 100% pass rate at annual test.

I have seen copies of the operator’s training certificates, learning dashboard and proof of attendance at OLAT on 24 February 2016 (pages 88 to 91). He was due to attend a 2-day TM CPC refresher course with TAC on 23 and 24 March 2020 (page 142). In the hearing I saw a certificate for attendance with TAC on 29/30 June 2020. That has yet to be reflected in fully compliant systems.

I refer to the Guide to Maintaining Roadworthiness:

5.3 Braking performance assessment

As per the annual test, every safety inspection must assess the braking performance of the vehicle or trailer. It is strongly advised that a calibrated roller brake tester (RBT) is used at each safety inspection to measure individual brake performance and overall braking efficiencies for the vehicle or trailer to the annual test standards. However, it is also acceptable to use an approved and calibrated decelerometer to measure overall brake efficiency values for vehicles without trailers….

Brake testing should be undertaken with the vehicle or trailer in a laden condition in order to achieve the most meaningful results; however, due to basic design limitations or restriction caused by the type of cargo normally carried, this is sometimes not possible. Further guidance regarding the use of RBT’s can be found at this link: www.gov.uk/government/publications/the-heavy-vehicle-brake-test-bestpractice-guide/the-heavy-vehicle-brake-test-best-practice-guide

A printout of the brake efficiency test from either the RBT or decelerometer should be attached to the safety inspection record. If the brake test equipment cannot produce a printout, efficiency results must be recorded by the inspector on the safety inspection report.

As Ms Evans identified, the operator was given a very strong steer when he appeared at Public Inquiry in June 2019: “Mr Manzoor should consider his position very carefully. There can be no repeat of non-compliance where he is concerned. On the evidence the Traffic Commissioner has received, his fitness is severely tarnished. The Traffic Commissioner has issued him with the sternest of warnings as to his future conduct.” In representations I was told that “Mr Manzoor has been trying to ensure that compliance is maintained to a good standard in his business” since that hearing. At the date of the representations at the end of March, the operator was confident that this will bring about further improvements over the next 6 months. There is certainly further work to be undertaken. I have commitments to the following:

• Undertaking to organise the site so that there is a dedicated free space, similar to a testing area, which is at least 2 metres wider than the vehicles to be checked, to ensure that there is at least 1 metre free space on either side of the vehicle when the vehicle is being inspected, minor intrusions are permitted (defined as 0.2m depth by 0.2m width maximum). That must be kept free from all other vehicles so that it can be utilised for first use checks, wherever the above dimensions are not available around the parking space of specified vehicles.

• Undertaking for a laden roller brake test at every Preventative Maintenance Inspection. See the DVSA Guidance: Heavy vehicle brake test: best practice.

• Undertaking to have the brakes on vehicle S17 WHG retested on the rolling road tester to ensure that the DTp Code is correct and that the brake performance achieves a pass rate before the brakes lock.

• Undertaking to ensure that the driver defect reporting training due to take place on 14 March will address the erroneous amendment of driver reports so that there is no record of a first use check. If a defect develops during the day, a new defect report must be completed.

All of the above actions must be documented. This must be checked as part of the full compliance audit to be undertaken by a trade association (FTA/RHA/BAR/CPT), a professional body (IoTA/CILT/SOE/IRTE) or an OCR approved examination centre offering the management CPC qualification (PCV/LGV) not less than 5 months and not more than 6 months from the date of Public Inquiry. A copy of the audit, along with the operator’s proposals will be sent to the Office of the Traffic Commissioner within 14 days after the audit.

I noted the operator’s approach to the advice given by the DVSA Examiner. Improvements have been made although further work is required so that when I ask the question suggested by the Upper Tribunal in 2009/225 Priority Freight how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime – I believe that there are positives which will allow the Licence to continue. In all the circumstances my initial starting point is within the Moderate to Serious range. I noted that drivers were furloughed and the vehicles (except one) were parked up but for a relatively short period. The operator has been able to pick up additional work but is realistic in terms of the future of construction-related transport. Eight vehicles are in use but not 100% of the time. The challenge is to try and retain the 4 large customers. The Operator’s Licence will be curtailed by 2 vehicles for 14 days commencing 23:45 on 3 August 2020. I make a direction under section 26(6) preventing vehicle CM11 MUK being used on any other licensed operation during that period. His repute remains tarnished, as before.

RT/TC/3/8/20