Decision

Decision for BARRY MICHAEL SHIPP AND MICHELLE CAROLINE SHIPP, TRANSPORT MANAGER

Published 8 June 2022

0.1 IN THE EASTERN TRAFFIC AREA

1. BARRY MICHAEL SHIPP – OF0229331

AND

2. MICHELLE CAROLINE SHIPP – TRANSPORT MANAGER

3. TRAFFIC COMMISSIONER’S WRITTEN REASONS

4. Background

Barry Michael Shipp holds a Standard National Goods Vehicle Operator’s Licence authorising 5 vehicles and 5 trailers. The Transport Manager is Michelle Caroline Shipp.

There are two Operating Centres: Land adjacent to New House, Mildenhall Road, West Row, Bury St Edmunds IP28 8NT and Hammetts Farm, Mildenhall Road, West Row, Bury St Edmunds IP28 8NT. Written representations indicate that the first adjoins the family home and office, with the second located approximately 200 yards away. There two declared contractors showing on the licensing record: CB Automotive, P&P Safepac Co. Ltd, as well as in-house facilities, undertaking Preventative Maintenance Inspection at 8-weekly intervals of vehicles and 12-weekly for trailers. However, written representations now suggest that the Operator uses three maintenance providers, with P&P Safepac Ltd servicing two of the specified vehicles.

The operator attended a Preliminary Hearing on 5 March 2015 following a roadside encounter where it was found that a vehicle was being operated without a current annual test certificate. The Hearing also considered the annual test pass rate and Prohibition rate. The operator offered undertakings to address concerns with the maintenance arrangements, for the Transport Manager to attend refresher training by 5 June 2015 and to conduct spot checks of at least two drivers per week to ensure the drivers are undertaking their walk round checks correctly.

The operator lodged an application on 22 June 2021 seeking to increase authority from 5 vehicles and 5 trailers to 7 vehicles and 7 trailers.

5. Hearing

The Public Inquiry was listed for 11 April 2022, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operators were present in the form of Mr Shipp, operator, and Mrs Shipp, Transport Manager, represented by Laura Newton, solicitor, of Smith Bowyer Clarke.

6. Issues

The public inquiry was called at the request of the operator and following notice that I was considering 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:

• 26(1)(b) – condition to notify relevant changes,

• 26(1)(c)(iii) – prohibitions (pages 301 to 306)

• 26(1)(ca) – fixed penalty notice

• 26(1)(e) – regarding who would exercise effective and continuous management of the transport undertaking

• 26(1)(f) – undertakings (vehicles and trailers to be fit & serviceable, effective written driver defect reporting, maintenance records, drivers’ hours, and tachographs overloading)

• 26(1)(h) – material change:

• 27(1)(a) – good repute, financial standing and professional competence.

• 28 – disqualification

Michelle Shipp was called separately to consider whether she has met the statutory duty for effective and continuous management and whether she continues to be of good repute and professionally competent – section 27(1)(b)

In a letter dated 9 February 2022, the operator confirmed that he wished to pursue the application and must, therefore, satisfy me as to the relevant sections of the Act:

• 17 – variation application

• 13A(2)(b) – good repute

• 13A(2)(d) – professional competence

• 13C(2) – satisfactory arrangements to comply with the law regarding drivers’ hours

• 13C(3) – satisfactory arrangements so that vehicles are not overloaded

• 13C(4) – satisfactory facilities and arrangements for maintaining vehicles and trailers in a fit and serviceable condition.

The operator was directed to lodge evidence in support initially by 28 March 2022 but extended by a further 7 days, including financial, maintenance and other compliance documentation. Documents and written representations were received on 4 April 2022. However, whilst the balances appeared to be in excess of the prescribed sum, only copies of the financial evidence were received. The operator was eventually able to supply evidence which met both prescribed sums.

7. Summary of Evidence

The operator sought interim authority to operate the increased number of vehicles and trailers. An email of 13 July 2021 (page 113) sought to explain four undated failures at annual test: WX56 EXU, DE11 UCY x 2, and WR65 KLM. It refers to extra work sub-contracted by Turners of Soham.

The application was received on 22 June 2021, but was incomplete, with no advertisement and incomplete financial evidence. The operator was advised on this in a letter dated 30 June 2021. An advert was uploaded on 1 July 2021 with further bank statements provided on 6 July 2021. Further bank statements were uploaded on 12 July 2021. A response from the Office of the Traffic Commissioner dated 19 July 2021 (page 114) noted the operator’s attendance at the Preliminary Hearing in 2015, the annul test history and the limited insight provided. The letter also enquired into any continuing professional development undertaken by the Transport Manager since 2015. This letter was sent again on 21 July 2021. Mr Shipp responded on 27 July 2021 (page 121) with an indication that he had signed up with NTP Online Learning Ltd to provide services to himself and the Transport Manager. He indicates that NTP Online Learning Ltd will provide assistance for a year and supply updates. In a further email of 28 July 2021, the operator indicated that he and his drivers had received Driver CPC training to ensure walk round checks are carried out and states that a forward planner is in use. He repeats that he now keeps up to date on any changes in the law via news and the internet.

Following correspondence dated 30 July 2021, the operator confirmed the need for a time limited interim for a period of three months. Grant was confirmed in writing on 10 August 2021 (page 139) allowing until 10 November 2021 to submit a copy of the attendance certificate for the CPC refresher, in order that I might consider substantive grant. The letter advises the operator of the consequences if it fails to satisfy a Traffic Commissioner against the statutory criteria.

Following the operator’s application to increase authority, DVSA decided to conduct a desk-based assessment. The assessment was commenced on 30 September 2021 (pages 192 to 208). The Case Summary refers to the bulleted findings:

• PMIs – inconsistences with some of the dates. Roadworthiness declaration not always signed. – no brake test results.

• No system for safety defect and recall in place.

• DDR – no evidence of system provided.

• Concerns raised with facilities for carrying out PMIs in house.

• Below average MOT pass rate.

• No evidence of monitoring of Adblue usage.

• No evidence provided of wheel security or retorque procedures.

• No evidence provided of load security systems.

• Driving licences checked 6 monthly – no records provided of checks.

• No records kept of any driver training.

• One driver card downloaded outside 28 days.

• System in place for dealing with drivers’ hours infringements but no evidence provided.

• No evidence provided of disciplinary system.

• No evidence provided of monitoring of Working Time Directive.

• No evidence provided of compliance with undertaking to carry out random audit of at least two drivers walk rounds (accepted at preliminary hearing in March 2015).

DVSA noted an initial failure rate of 28.57% at annual test, representing 14 tests with 10 passes, 2 PRS and 2 fails. The last failure was recorded on 29 April 2021 against WR65KLM for spray suppression, wings etc. Advisory items also highlighted Glass and View of the Road. The operator’s explanation was as follows: “Super singles tyres was not covering the whole tyre even though extra suppression fitted, did not know rules changed from must cover the whole tyre, Not just the tread, Wheels swapped from Midlift and pass 30mins later”.

The joint response from the operator and Transport Manager dated 8 October 2021 (pages 210 to 213) suggests that the download period was missed due to a driver’s shift pattern. It refers to infringements being generated by the Tachomaster system, which the drivers then sign to confirm they had been advised of the offence. The discrepancies on the Preventative Maintenance Inspections are ascribed to mistakes by the operator. The letter suggests that, going forward, the Transport Manager will double check that the Preventative Maintenance Inspections are complete. A forward planner showing service and PMI dates and a separate planner for tax and MOT is now in use. Systems have been put in place for safety recall, VOR, Wheel security and Adblue usage. In respect of the concerns raised regarding the facilities available for in-house Preventative Maintenance Inspections (PMIs), Mr Shipp states that he now has permission to use a large workshop at Safepac. An induction process for new drivers has been implemented and driving licences will be checked every 6 months with records being kept. Drivers will be asked to sign a Working Time Directive form. Evidence of compliance with the undertaking to carry out random audits of two drivers walk round checks was submitted to the DVSA. Many of the adverse markings were due to a failure to supply evidence. The operator admits failures to record mileage at Preventative Maintenance Inspections, Preventative Maintenance Inspection records not completed with a declaration of roadworthiness, unacceptable facilities (lack of under-cover inspections in-house), lack of defect and recall system, no evidence of load training, no driver training records, extended driver card download. The queries raised about the annual test failures were not appealed.

Written representations describe a paper-based administrative system, with no digital records. The operator apparently found it difficult to scan documents to DVSA for the purposes of the Desk Based Assessment. I have referred to the licensing record above, but representation put me on notice that Mr Shipp had also been conducting ‘a lot of maintenance’, relying on facilities at his own yard. It was further confirmed that ‘a contractor’ from CB Automotive has been using these same facilities. (I was shown a photograph of a partially obscured pit.) He was described as an experienced mechanic with employment at Turners of Soham, where he receives regular training and updates, but there is no roller brake test facility. None of this was sufficient to prevent the application of out-of-date maintenance standards using dated Preventative Maintenance Inspection forms. Those have now been replaced, but only following the DVSA intervention. As Leanna Miles confirms, the forms used in-house dated from 2015, with those used by Safepac dating to 2012. The Guide to Maintaining Roadworthiness has been updated at least twice since those forms were created.

It is acknowledged that the second signature on the declaration was missed, indicating that the Transport Manager was not checking the forms closely enough. The operator had to be advised by Leanna Miles that the declaration of roadworthiness needed to be signed off. This is further confirmed in the evidence around the inspection of EA62 NNY. It was acknowledged that the dates on the Preventative Maintenance Inspections were wrong. The operator asserts that the inspections were carried out correctly and that the DVSA Examiner should have guessed that it was a 2020 date. The operator must equally accept that the Transport Manager has failed to exercise effective management. The Transport Manager further admitted that she had not added new vehicles onto the planner. I heard about improvements in the approach to planning and the Vehicle Off Road system was explained. The operator relies on a 6-monthly reminder to contact Scania regarding recalls and defect notices. The 6 monthly intervals apparently follow advice from Leanna Miles.

I was told that the operator has always relied on a record for retorquing following wheel replacement. Drivers complete a record requiring three retorques at specified intervals. However, the first retorque was set at 100kms but has now been reduced to 50kms, based on advice given by Leanna Miles. She found that mileage of the vehicle was not recorded when the wheel was removed and initially torqued. I was told that staff had undertaken in-house training on load security, to be reviewed periodically and as part of induction.

The operator had only recently been prompted to purchase a decelerometer and to only present vehicles for laden roller brake testing at every other Preventative Maintenance Inspection. I was also provided with some print outs from brake tests said to be undertaken prior to the hearing. The scanned copies were not that legible. The operator referred to a weekly brake temperature check, which is recorded as part of the maintenance regime. Mr Shipp is apparently able to observe whether there are any axle bearing or weight issues with this regular check. Mr Shipp appeared to be unaware that Electronic Braking Performance Monitoring Systems should conform with the methodologies described in ISO 21069. The annual test failure rate was ascribed to WR65 KLM and a non-compliant replacement cargo strap. Written representations referred to a further walk around check for any trailer which is collected. That raised questions about the maintenance of third-party trailers.

I was told that the operator utilises a Nil driver defect reporting system. Apparently, drivers had to be reminded that the walk around check must be recorded as other work. Reference was made to the operator using CCTV to observe the walk round checks in the yard. There is an undertaking on the licence to undertake gate checks. I can attach very little weight to an assertion based on spot checks of vehicles, when there has been no record keeping. Mr Shipp was said to conduct a monthly yard inspection, which includes a tyre check, but there was no evidence of cross-checks. This weas discussed with Leanna Miles at her recent visit leading to the introduction of a transport compliance folder.

1. Drivers were said to be trained monthly through in-house toolbox talks. CPC Training is organised by the Operator and the CPC expiry date is monitored at the Licence checks. The operator could confirm that driving licences are checked on the DVLA system which is electronically date stamped and retained. Leanna Miles has advised on the need to increase checks to a minimum of once per quarter and to adopt a risk-based approach based on points recorded.

The Operator apparently utilises Tachomaster software to analyse driver and vehicle data. The downloads had been close to the statutory maximum but have now been reduced to monthly downloads for vehicles and weekly for drivers. Again, this appears to result from Leanna Miles’ visit, as with the filing of records and infringement reports. Ms Newton accepted a single incident where a driver download had been stretched to 30 days. I was referred to the driver booklet and printout and asked to accept that infringements are ‘not overly frequent’ and limited to occasions where there is heavy traffic and a lack of available parking spaces. Missing mileage reports are generated and annotated after investigation, although the failure to record walk round checks is concerning. Leanna Miles refers to an apparent anomaly regarding KX17 RVJ where missing mileage of 502 km was identified but that does not accord with its use. Ms Miles records improvements in the performance of Driver Nurse over the last 2 months. The DVSA investigation has apparently prompted the operator and Transport Manager to ‘revise’ their knowledge regarding positioning journeys. I was directed to a written opt out agreement. The Operator uses a 17-week recording period. I was told that breaches are limited to infringements under 15 minutes, which supports the explanations given by drivers.

The written representations referred to a written audit. In reality, this appeared to be a note prepared by Leanna Miles recording her observations from her visit on 28 March 2022 rather than a full compliance audit. It records the alleged improvements and advice. That advice includes reference to the number of roller brake tests. Again, there is no explanation of why the starting point in the Guide to Maintaining Roadworthiness has not been adopted.

A dip sampling of the records produced in advance of the hearing disclosed the following:

KX63 NLK

• 1 April 2022 - Registration added to printout for laden (but weight not shown) roller brake test:47%, 40% 23%.

• 19 March 2022 – inspection using an inspection form dated 2015, with no brake performance check.

• 22 January 2022 – inspection using an inspection form dated 2015, with no brake performance check despite reference to brake pads but does record a defect with lamps but the last driver defect report was Nil and dated 20 January 2022.

• 11 December 2021 – inspection using an inspection form date 2004, with no brake performance check, but records defects with tyres and wings. The last driver defect report is dated 10 December 2021 and was a Nil return.

• 30 October 2021 – inspection using an inspection form dated 2015 with no brake performance check, but records defects on tyres. The last driver defect report is dated 29 October 2021 and was a Nil return.

• 18 September 2021 – inspection using an inspection form dated 2015, but with no brake performance test and brakes pads noted to be near the limit

• 7 August 2021 – inspection using an inspection form dated 2015, but with no brake performance test and brakes pads noted to be near the limit.

WR65 KLM

• 1 April 2022 – laden roller brake test: 52%, 35%, 21%.

• 12 March 2022 – inspection using an inspection form dated 2015, with no brake performance check.

• 30 January 2022 – inspection using an inspection form dated 2015, with no brake performance check.

• 18 December 2021 – inspection using an inspection form dated 2015, with no brake performance check and records nearside rear side light bulb – Nil driver defect report on 14 December 2021.

• 7 November 2021 – inspection using an inspection form dated 2015, with no brake performance check.

• 25 September 2021 – inspection using an inspection form dated 2015, with no brake performance check and records offside rear side light– Nil driver defect report on 24 September 2021.

• 14 August 2021 – inspection using an inspection form dated 2015, with no brake performance check

• 2 July 2021 – inspection using an inspection form dated 2015, with no brake performance check.

• 22 May 2021 – inspection using an inspection form dated 2015, with no brake performance check.

• 3 April 2021 – inspection using an inspection form dated 2015, with no brake performance check.

‘DHL Trailer’:

• 2 February 2022 – inspection using what appears to be an in-house generated inspection sheet, with no brake performance check and reference to a cracked lens (not apparently reported).

• 10 November 2021 – inspection using what appears to be an in-house generated inspection sheet, with no brake performance check and reference to a loose sideguard (not apparently reported).

• 19 August 2021 – inspection with brake performance check on 18 August 2021: 18% and 10% due to insufficient loads on axles 1, 2 and 3, and reference to a bumper and lamps (not apparently reported).

• 29 May 2021 – inspection using what appears to be an in-house generated inspection sheet, with no brake performance check.

• 6 March 2021 - – inspection using inspection form dated 2004, with no brake performance check and reference to a tyres, sideguard and wings, lamps, body condition (not apparently reported).

On 20 January 2022, OTC responded to the email of 18 January 2022 and reminded the operator that interim authority had expired on 10 November 2021. On 25 January 2022, OTC sought information arising from the DVSA investigation. The operator was apparently under the impression that interim authority was permitted for a period of 6 months. The operator subsequently suggested that vehicles would be the subject of brake testing at every Preventative Maintenance Inspection, either by decelerometer or a roller brake test, in addition a digital temperature gun will be used weekly with results being recorded.

Written representations refer to an increased demand for sub-contractors resulting from the pandemic, resulting in the application, which was lodged in July 2021. It is accepted that the operator was confused by the time limited interim and further acknowledged that the correspondence refers to a three-month period to allow the Transport Manager to complete a CPC refresher course. Instead of referring to that correspondence, the operator relied on the general advice on the licence documentation relating to the maximum period that an interim can be granted for. The operator was entitled to query why the document uploaded to the licensing record on 26 August 2021 referred to an authority of 6 vehicles and 6 trailers. This apparently prompted Licensing staff to then upload 3 documents on 14 September 2021: the substantive licence (5 vehicles and 5 trailers), an interim licence (6 vehicles and 6 trailers), a further interim licence (7 vehicles and 7 trailers). Representations suggest that there was no additional or explanatory correspondence. I was told that the operator now understands that interim authority was granted for three months, for the purposes set out in the initial letter. I was asked to treat this as a genuine mistake, in part due to a lack of familiarity with the VOL system. It is suggested that the operator was unable to secure a conversation with Licensing staff, despite telephone functions being restored during 2020. However, the operator was content to proceed without clarification and then complained that there was no further correspondence at the expiry of the interim period. That is not a legitimate complaint.

I was told that Mrs Shipp was appointed as the Transport Manager soon after obtaining her Certificate of Professional Competence. She underwent refresher training in 2021 and spent time with Leanna Miles of AS Miles Consulting Ltd, during a recent audit visit. Reference is made to an annual exercise to ensure that she is implementing ‘best practice’. She also attended a Driver CPC module on drivers’ hours and walk round checks. It was suggested that she has access to relevant reference material. Written representations claimed that Mrs Shipp is able to question the operator’s decisions. On advice from the consultant, meetings will now be minuted, with an agenda to cover all vehicle and driver matters, review any concerns etc.

The operator was given time to consider its approach to future operation. The audit was required to demonstrate progress since the Public Inquiry. It was required by 16 May 2022. The audit report completed by Leanna Miles of Miles Consulting Ltd following a visit on 12 May 2022 confirms that A1 Commercials utilise inspection forms stored via the R2C system and, whilst brake efficiency percentages are recorded, the full printout is not available. The inspections sheets provided by Safepac did not apparently comply with the current Guide to Maintaining Roadworthiness. A letter was seen (11 May 2022) confirming that laden roller brake tests would be carried out at every inspection and the inspection sheets have been updated. The audit suggests that the operator has chosen to work with Safepac. The auditor advises the operator to take up the offer of quarterly meetings with that contractor so that inspection sheets are returned with the vehicle allowing for checks of brake testing and to cross-reference against driver reports.

Written representations from Ms Newton refer to the previous use of a local mechanic. She explains that the paperwork employed by Truck East for KX67 SVL on 5 July 2021 was prior to purchase, in readiness for the sale. Mr Shipp is said to have now acknowledged the limited facilities and maintenance shortcomings. His “decades of maintenance experience” were not sufficient to avoid the shortcomings. The representations state that Mr Shipp has accepted that his capabilities were lacking. He has, therefore, decided to rely on Safepac and has met with representatives regarding Quality Assurance, which is evidenced in the letter. There will be a laden roller brake test at each PMI. The maintenance will be closely monitored by operator and Transport Manager, which has been supported by recent training. Ms Newton supplied me with the most recent inspection records and associated brake tests: Trailer BSHT1 – 24 April 2022: 47% and 23%; KR17 XTW – 30 April 2022: 66%, 25%, 25% (no printout), KR17 RVJ25 April 2022: 50%, 25%, 20%, KX67 SWF – 27 April 2022: 58%, 25%, 20%. A1 Commercials will still be used for one vehicle, and they will continue to undertake laden roller brake tests, as before.

I have been supplied with an email dated 10 May 2022 from a Stephen Flynn, who is the UK & Continental Operations Manager for P & O Ferrymasters. It states that all the relevant trailers are used in either UK or nearside Continental road operations, “spending much of their life sat idle on a ferry”, or Eastern European operations where they are being towed on Huckepacke train routes. He suggests that they are subject to much less mileage than UK domestic use. He refers to an annual APK (equivalent to the annual test) and a bi-annual “B service”, which is contracted to TIP maintenance. There are also Quality Safety Inspectors employed to check the road/rail worthiness of the trailer, the safe stowage of the cargo when they pass through ports. He adds “all our supply partners are instructed to adhere to our zero-defect maintenance procedure – whereby via TIP, a fleet of approved vendors can attend roadside defects, or equipment can be directed to approved workshops for more substantial repairs.” The email dated 14 April 2022 from Andrew Scarlett of Turners Distribution appears to be directed to its operator licence requirements and refers to service systems for trailer servicing, annual test, and defect reporting. He confirms that any trailer issued to a Turners sub-contractor will be subject to those requirements and will have an annual test. It also relies on robust driver defect reporting. I compare that with my observations above. No further information was supplied as to how this operator complies with the obligations under this licence.

I note with approval that Mrs Shipp is said to have implemented weekly auditing of the driver defect reports. This was identified as an area of potential weakness. Ms Miles notes improvements since her last visit so that errors are now infrequent. All inspection sheets and those brake test print out which are received are reviewed by Mr and Mrs Shipp.

Ms Miles has recommended additional spot checks on the cab and gate checks of the standard of walk round and of driver documentation. Licence checks are said to be carried out quarterly. Only one driver has points on his licence. Reference is made to checks on two casual drivers.

All drivers have signed an opt-out of the Working Time Directive relating to the 10-hour rule. The audit was unclear on whether this extends to the reference period. The audit describes weekly downloads of the driver cards and fortnightly for the vehicle units. Ms Miles assessed the infringement reporting. Not all infringement reports are being signed by the relevant driver. Ms Miles describes the operator’s reluctance to ask drivers to sign for minor infringements. As the audit explains, that needs to change, and advice has been given. The relevant reports are compiled using the Tachomaster system but not printed out.

The written representations refer to a level of suspicion from some drivers. The operator and Transport Manager have had to reassure drivers, who do not understand the requirements. Those representations illustrate the culture which the operator permitted. All drivers (bar one on holiday) are said to have attended driver CPC training on ‘Reducing Tachograph Infringements and Understanding Key Elements of an HGV’ on 7 May 2022.

8. Determination

Based on the evidence summarised above, I am satisfied that I should record adverse findings under the following sections of the Act: 26(1)(b) – condition to notify relevant changes, 26(1)(c)(iii) – prohibitions, 26(1)(ca) – fixed penalty notice, 26(1)(e) – statement regarding who would exercise effective and continuous management of the transport undertaking, 26(1)(f) – undertakings (vehicles and trailers to be fit & serviceable, effective written driver defect reporting, maintenance records, drivers’ hours and tachographs, 26(1)(h) – material change.

I have taken some care to describe the positives in this case, not least the improvements noted by the auditor. In summary, drivers are now trained to report all defects; systems to monitor drivers’ hours and infringements have been strengthened with additional training given. Reference is made to the limited missing mileage suggesting that breaches were effectively monitored and investigated. Training has been undertaken, with a further day to review progress since the recent visit. Ms Miles continues to mentor the Transport Manager.

The Operator gave evidence, corroborating what had been suggested in email correspondence, that for a short period, vehicles had been used in excess of authority. This is described as genuine confusion and that as soon as the operator was made aware, the vehicles were taken off the road. It is suggested that the operator was undertaking regular checks to ensure that the Licence was being administered properly.

It was apparent even from the earlier written representations that this operator allowed himself and operations to become dated. This may be due to a lack of IT skills, but that is really no excuse. The restrictions imposed around the pandemic have shown that operators need to be able to adjust and to function in the modern world. That is particularly relevant when I consider the question posed by the Upper Tribunal in 2009/225 Priority Freight, namely: how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime? On any standard licence I am entitled to expect the Transport Manager to have met the statutory duty and ensured compliance with the basic requirements of the licence.

Representations suggest that the operator and Transport Manager have woken up due to the investigation and Public Inquiry process. Ms Newton refers to high levels of stress. They have decided that they wish to remain in the industry. It is suggested that the call to Public Inquiry has had the desired effect. It is accepted that multiple negative factors were present at the Public Inquiry and suggested that these are no longer live. The representations refer to co-operation, tangible changes and a lack of ‘S’ marked prohibitions. On that basis, it is suggested that significant deterrent intervention is required. The case is put on the basis of an operator who got things wrong.

It is submitted that this is not a case where there was a desire to cut corners. The shortcomings are ascribed to Mr Shipp’s over reliance on decades of outdated experience rather than ensuring that systems were up to date. Representations refer to the efforts put into running a professional business, which have involved empowering the Transport Manager, to be able to challenge the operator and service providers. The abilities of the Transport Manager are relevant to the Priority Freight question. It is suggested that Mrs Shipp had limited outside experience to allow her to assess her own practices. There appears to be no reason for her not seeking advice. As the representations confirm, she instead trusted in Mr Shipp’s abilities and knowledge and permitted the above shortcomings. I accept that she has been more than just a name on the licence, but she has lacked the necessary skills and experience. I am told that she has taken the times to study the public guidance as well as undertaking the refresher training. I am told that she now has the confidence to challenge service providers, but I cannot avoid the fact that she still requires mentoring by Ms Miles. I refer to the approach to third-party trailers, which has still not been addressed.

The written representations suggest that Mr Shipp has had to learn to trust third parties. The operation involves the hauling of third-party trailers supplied through P&O Ferrymasters and Turners. Written representations indicate an acknowledgement by both Operator and Transport Manager that there must be more than trust, when considering the roadworthiness of third-party trailers. As Ms Miles advises, the operator needs to be able to ensure that those trailers are in a fit and roadworthy condition, as per the Road Vehicles (Construction and Use) Regulations and the Operator Licence requirements. However, despite having given the operator additional time, the emails to which I have been referred are insufficient.

The Guide to Maintain Roadworthiness acknowledges the challenge but, for the avoidance of doubt, operators providing traction-only services to third-party trailers are responsible in law for the condition of that trailer when in use. Transport managers are also required by law to manage the transport operation continuously and effectively. The operator’s licence requires “satisfactory facilities and arrangements for maintaining the vehicles used under the licence in a fit and serviceable condition.” In that context, “vehicles” includes any trailer (including those from abroad) being drawn. An operator providing traction-only services must have trailer authority on that licence and must specify an inspection period. The trailer provider is likely to have its own inspection periods, which should be based in part on the age and characteristics of the trailers and work involved. The operator needs to satisfy themselves that it is appropriate. The operator must ensure that any trailer it operates meets the stated frequency for inspection. If the operator cannot satisfy themselves that a suitable assessment has taken place, then the operator must make their own assessment, as per the declared intervals.

An operator should, therefore, expect access to information which indicates the annual test expiry, the date of the last Preventative Maintenance Inspection, for trailers not fitted with electronic brake performance monitoring, date of last roller brake test and confirm that this was laden, contact details for reporting of defects. Drivers will require appropriate training on conducting an effective walk-around check including noting the trailer’s annul test expiry and confirming that it has been inspected and brake tested within the stated period. That training should be documented. Operators should refer to the current DVSA Guide to Maintaining Roadworthiness, the link to brake testing guidance and may be further assisted by reference to the IRTE publication: Roadworthiness: Industry Best Practice for third party trailer operators, Appendix VII includes a suggested “Co-operation request letter to trailer owner.”

I must, therefore, disagree with Ms Newton’s suggestion that the time permitted since the hearing has allowed the operator to show that it is capable of ensuring compliance. Some changes have been put in place and I can give credit. However, any updated knowledge has not been sufficient to address its operating model. Accordingly, I cannot reach a positive conclusion.

I am invited to find that Mrs Shipp retains her good repute, but I cannot avoid the comments of the appellate Tribunal in 2014/050 Andrew Harris trading as Harris of Leicester: “Given the importance attached to operators complying with the regulatory regime and given that transport managers must: “effectively and continuously manage the transport activities of an undertaking holding an operator’s licence”, 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.” The Tribunal has confirmed in 2014/058 Angus Smales trading as Angus Smales Eventing, that being Transport Manager is far more than just holding the qualification. I find that Mrs Shipp, despite her best efforts, has not demonstrated the ability to meet the statutory duty and that continues to be the case. In the circumstances, and as was confirmed in 2015/049 Matthew Reynolds, I must find that she has lost her repute as Transport Manager pursuant to section 27(1)(b)

The representations confirm that there are no formal contracts with customers. Ms Newton refers clients who return due to the reliability and service offered. That would be impacted if there were any intervention. Ms Newton suggests that there is a real risk that the operator would be unable to return to the rota as another operator will have filled that gap. However, she is unable to quantify the impact beyond stating that the loss of work would have a serious impact and put the business in serious jeopardy. She describes the operator’s decisions to only undertake work which allows for full compensation. Ms Newton also refers to the additional pressures of retaining drivers in the current market. It is suggested that it would be sufficient to refuse the application and deal with the non-compliance through statements of intent. For the sake of completeness I record that the operator has failed to satisfy me as to the following sections: 13A(2)(b) – good repute, 13A(2)(d) – professional competence, 13C(2) – satisfactory arrangements to comply with the law regarding drivers’ hours, 13C(4) – satisfactory facilities and arrangements for maintaining vehicles and trailers in a fit and serviceable condition, so that the application must be refused under section 17.

For the reasons set out above, I cannot reach a positive conclusion in response to the Priority Freight question. In addition, the operator no longer has access to a Transport Manager who can rely on her Certificate of Professional Competence. Given the basis of that finding it is difficult to specify a rehabilitation measure, although Mrs Shipp is at liberty to apply to vary that direction but I am obliged to disqualify her for the minimum period of 12 months She would be well advised to work with an experienced CPC holder exercising Transport Manager duties if she is to seek to persuade a Traffic Commissioner that she is capable of meeting the statutory duty in future. I accept that the operator has had to make significant changes and has shown a commitment to getting things right. The fact that compliance has still not been achieved indicates why I must remove the operator from the industry. I accordingly record those adverse findings under section 27(1)(a).

There was a previous intervention, although some 7 years ago. In not making an order for disqualification, I acknowledge the changes which the operator has been able to implement, many at the instigation of Ms Miles. This may allow the operator to return to the licensing regime, but it will require a very different approach to compliance. The revocation date reflects the submissions made on behalf of the operator. That will take effect from 23:45 on 27 June 2022.

R Turfitt

Traffic Commissioner

1 June 2022