Decision

Decision for BWC Haulage Limited

Published 1 March 2022

0.1 SOUTH EAST AND METROPOLITAN TRAFFIC AREA

1. DECISION OF THE DEPUTY TRAFFIC COMMISSIONER

2. PUBLIC INQUIRY HEARD AT IVY HOUSE, IVY TERRACE, EASTBOURNE ON 14 FEBRUARY 2022

2.1 OK2008587 BWC HAULAGE LIMITED

2.2 REPUTE OF TRANSPORT MANAGER KELLY KNIGHT

3. Background

The operator BWC Haulage Limited is the holder of a standard national licence authorising six vehicles granted on the 30 January 2018.The sole director of the company is Ben William Clifford and the transport manger is Kelly Knight.

On the 1 October 2019 the licence was curtailed from 6 to 4 vehicles for 28 days following unsatisfactory reports from a vehicle examiner and a traffic examiner. The repute of the transport manager Kelly Knight was marked as tarnished. Identified failings included driver detectable faults being found at maintenance inspections with no follow up action being taken by the transport manager and an absence of a driver disciplinary system or policy. An undertaking was agreed for an audit to be carried out within 5 months of the inquiry. The audit was generally satisfactory, and the undertaking removed from the licence.

Kelly Knight had also been a transport manager on a licence held by D & D Recovery Limited and she was called to inquiry with that operator on the 18 November 2021. Ms Knight attended the inquiry, but the operator did not. I heard evidence from Traffic Examiner Glass that during 2019/2020 vehicle units were not being downloaded and that there was insufficient data to show that driver’s hours were being analysed and disciplinary action taken when necessary. Evidence showed that the operator was still trading in August 2021.

Ms Knight had indicated in a letter to TE Glass in June 2021 that she was checking driver records and investigating infringements although no evidence was produced subsequently to evidence this. Ms Knight said that this was a result of a laptop being damaged by a flood. She also claimed to have sent some data to Ms Glass although there was no record of this being received and she had not kept copies of the material. The laptop she had been using subsequent to the flood had been taken by the operator and any written materials destroyed when the business closed.

I revoked the licence in relation to D & D Waste Recovery Limited and deferred my decision in relation to the repute of Kelly Knight pending the outcome a desk-based assessment of the current operator. Ms Knight told me that this would show that she could fulfil her transport manager role effectively and that the reasons for the failings of D & D Waste Recovery Limited were a result of the pandemic and the actions of the operator.

The process for a desk-based assessment commenced on the 3 December 2021 when the DVSA sent a letter as an attachment to the nominated e mail address for Ms Knight. No reply was received to that letter and a follow up letter was sent on the 14 December 2021. In both instances confirmation was received that the e mails were delivered to the nominated address. In the absence of any response to the request for information a decision was made to call the operator and transport manager to public inquiry.

4. The Public Inquiry

Mr Clifford attended the inquiry and Ms Knight did so virtually. Both parties were represented by Ms Evans. Prior to the inquiry Ms Evans had helpfully submitted written representations and attached a bundle of documents. Ms Knight had sent in copies of PMI sheets, driver walk round check forms and drivers’ hours records.

5. Evidence

Ms Knight told me that she had not received the e mail requests for information relating to the desk-based assessment. A check had been made on her computer and no trace had been found of the e mails so it was suggested that they could have gone into “junk mail” and been automatically deleted thereafter. She had prepared the material in anticipation of the assessment, and this could still be produced if required. In the week prior to the hearing, I had been asked by Ms Evans to postpone the inquiry to allow the assessment to be conducted but decided to proceed with the information that was available and the option of adjourning for further assessment if necessary.

I pointed out to Ms Knight that I had been sent 13 drivers’ walk round check sheets. 9 of these were from the period October to December 2020, 1 from October 2021 and 3 from November 2021. I asked why there were none from the period between those dates and why there were so few. She said that she must have sent the documents from the wrong folder, and she did have many more nil defect forms but had not sent them.

I highlighted my concern at the number of maintenance related prohibitions that had been issued in 2020/2021 and said that many of them were in respect of faults that should have been picked up by drivers if walk round checks were being properly carried out. I also pointed out the number of driver detectable defects being identified at maintenance inspections. This had been a feature of the failings which led to the inquiry in 2019. Ms Knight said that “gate checks” and Toolbox Talk training has been carried out and a new procedure was planned involving Mr Clifford’s brother who was now working for the company. She confirmed that no disciplinary action had been taken against any drivers and that any action had been “verbal only”.

In respect of drivers ’hours infringements Ms Knight said a final written warning on the 17 December 2021 had been issued to one driver. Other drivers were being spoken to about infringements, but these were mainly related to working time directive errors. Explanations from the drivers were recorded but no examples of this had been submitted.

Mr Clifford outlined the history of the company and said that a transport consultant had recently been engaged, new policies and procedures were being adopted, refresher training was planned, and the involvement of his brother will be a positive change. Brake tests are now being carried out on at least four occasions per year and are laden tests.

Ms Evans submitted that Ms Knight should be allowed to retain her repute and the operator to remain in business. Ms Knight plays an active role in the business and has regular contact with Mr Clifford. Many of the failings found in 2019 have been addressed and whilst it is recognised that there are still areas that require policies and procedures these are being addressed with training and the assistance of a transport consultant.

6. Findings and Decision

There have been breaches of Sections 26 (1) (c) and (f) of the Goods Vehicles Act, 1995 in this case. The schedule of prohibitions issued since the inquiry in October 2019 is of particular concern as are the number of driver detectable defects found on the preventative maintenance inspections sheets produced for the hearing. I was assured that action was now being taken or is planned to remedy these failings, but the question remains why this has not happened to date.

In determining the seriousness of this case, I need to balance the negative aspects with any positives I can identify. The negatives are evident from the summary of the evidence and the findings detailed above. This is an operator who was given a chance to improve following the previous inquiry and has made some advances as is shown by the outcome of the audit and compliance with the recommendations made. I also give credit for the appointment of a transport consultant and adopting new policies and procedures but note this happened close to the date of the inquiry and following advice from Ms Evans. My conclusion from the balancing exercise is that the negatives outweigh the positives.

In accordance with the guidance given by the Senior Traffic Commissioner in Statutory Document 10 I need to consider the level of seriousness in this case, and I have concluded that it is in the serious category. I reach this conclusion because of the history, the lack of pro-activity by the operator and transport manager in achieving compliance and the risks to road safety of vehicles being used with defects such as serious tyre damage. In considering whether the licence should be revoked as a consequence I have to ask myself the question set out in the case of Priority Freight Limited & Paul Williams i.e. how likely is it that this operator will operate in compliance with the operator’s licensing regime? In other words, can the operator be trusted going forward? This case is borderline, and I am prepared to allow the operator a further opportunity to demonstrate that they can be trusted. However, I emphasise that if this operator is called back to another inquiry the chances of revocation are very high. The repute of the operator is marked as severely tarnished. As a separate conclusion I have decided that Kelly Knight has lost her repute as a transport manager and the explanation and reasons for this are detailed below. This will require a new transport manager to be appointed and I allow a period of two months from 28 February 2022 for this to be achieved by directing that a period of grace is allowed. The person appointed must be prepared and able to deal with the urgent issue of driver’s compliance with walk round checks and driving hours and be fully informed of the background. It may be that the transport consultant will be able to assist in recruiting the best candidate.

Having determined that this case is serious I need to take proportionate action and order that the licence is curtailed to four vehicles for a period of 28 days with effect from the 28 February 2022. I note that this is the same order as made on the last occasion but also note that Mr Clifford said that any curtailment at this time would be a “big blow” and put drivers out of work. I request that the DVSA undertake an assessment of the maintenance and transport compliance of this operator in August 2022 if practicable.

In relation to Kelly Knight I consider that her failings as a transport manager are cumulative. Her repute was tarnished following the inquiry for this operator in 2019 and the evidence I heard in relation to D & D Recovery in November 2021 was that vehicle units were not being downloaded and that there was insufficient data to show that driver’s hours were being analysed and disciplinary action taken when necessary. Whilst Ms Knight said that this had been happening, she could not produce any evidence to support this claim and the case of V Larkin Ltd t/a Olympic Scaffolding 2019/011 is authority to say that adverse conclusions can be drawn when there is a failure to produce documentation.

Having been given a further chance to demonstrate her competence in relation to the current operator the evidence sent in did not do so. The driver defect forms were mainly from 2020 and limited in number and the PMI sheets, including the most recent, showed several driver detectable items. Despite this there was no disciplinary procedure in place for drivers for this failing and only a very limited and recently introduced process for driving hours infringements. For all these reasons I find that Kelly Knight has lost her repute as a transport manager and remove her authorisation with effect from the 28 February 2022.

Having decided that repute is lost I am obliged to order a period of disqualification and have concluded I can limit this to 18 months starting on the 28 February 2022. I believe that Ms Knight is well intentioned in what she has done but has failed in terms of focus, assertiveness and organisational skills which are required. At the end of the period of disqualification, if she wishes to re-enter the profession, she will need to have completed some update training, be able to show that she has learned for the current experience and demonstrate what she will do differently. She will need to consider during the period of disqualification if she is really suited to transport management.

Mr Clifford indicated on several occasions during the inquiry that he had plans to increase the size of the fleet of vehicles on his licence. In my view it is very unlikely that any increase will be approved until he has demonstrated a satisfactory level of compliance for a sustained period.

John Baker

Deputy Traffic Commissioner

16 February 2022