Decision

Decision for D & P Luxury Toilets Ltd (OF1070539)

Published 8 October 2020

In the Eastern Traffic Area.

Confirmation of the Traffic Commissioner’s decision.

1. Background

D & P Luxury Toilets Ltd holds a Restricted Goods Vehicle Operator’s Licence authorising 4 vehicles. It was originally granted for 2 vehicles, commencing on 3 July 2007. There are two Directors: John Francis Curtis and Theodore Terkelsen. Mr Terkelsen was appointed as a director from 21 December 2018. He was only added to this licence on 14 February 2020. The Operating Centre is at Coldharbour Cottage, Winchbottom Lane, High Wycombe HP10 9QE. There is one notified contractor, P & W Commercials Ltd, which is said to inspect vehicles at 10 weekly intervals.

The Licence record indicates that the operator was called to Public Inquiry in May 2017 following an earlier maintenance investigation. The decision at page 77 records the Deputy Traffic Commissioner’s findings under sections 26(1)(b), (c)(iii), (ca), (f) – fit & serviceable, DDRS, records. She accepted a number of undertakings referring to a “transport manager” to work one day a week, that a member of office staff will attend OLAT, and an audit to be completed in September 2017. On that basis she allowed the licence to continue but was curtailed by one vehicle for a period of 5 days. Fitness was found to be tarnished.

An increase in authority was granted following receipt of a further audit in 2018.

I was told that Mr Curtis bought the business in 2013 but it started in approximately 2005. It operates a mixed fleet of 4 larger vehicles with around 10 smaller vehicles. The operator supplies outside temporary toilet facilities to events, weddings, shows, fairs, and places of interest using the following vehicles: 18 tonne DAF tanker LT19 EKG; 7.5 tonne DAF tanker RO08 CVA; 7.5 tonne box vehicle DAF GN54 HHX (for carrying modular luxury toilets); and 5.2 tonne Iveco Daily tanker van GN11 AFK GVW 5.2t –a van with twin wheels at the rear axle. ## Hearing

The Hearing was heard today, 22nd July 2020 in, Tribunal Room 1 of the Office of the Traffic Commissioner, Cambridge. The operator was present in the form of a Director, John Francis Curtis, accompanied by Nicholas Paul Taylor (General Manager), Sally Anne Wojniak nee Curtis, Operations Manager, and represented by James Backhouse, a solicitor from Backhouse Jones. The OTC was notified that Mr Backhouse had been retained in an email dated 15 July 2020.

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:

• 26(1)(e) – statement of intent (for vehicles to be inspected at 10-week intervals)
• 26(1)(f) – undertakings (vehicles to be kept fit and serviceable; effective written driver defect reporting; complete maintenance records to be kept for 15 months; rules on drivers’ hours and tachographs)
• 26(1)(h) – material change with regards to fitness and financial resources
• 28 – disqualification

The Operator was first put on notice of these issues in correspondence dated 19 March 2020 (page 56).

3. Summary of Evidence

The Office of the Traffic Commissioner was notified on 19 October 2018 (pages 80, 82, 84 and 85) that Scott Sinton intended to step down from his position as acting “transport manager” due to other commitments. Mr Curtis provided assurances in a letter dated 29 December 2018 (pages 86 and 87) and operations were apparently permitted to continue.

The DVSA then attempted to carry out a desk-based assessment (DBA) but there was initially a difficulty in obtaining documentation. The TE, Ms Smith wrote to the operator on 6 January 2020, requesting documents to be sent by 20 January 2020. There was no response. On 29 January she sent a chaser, extending the deadline to 5 February, with document received on 4 February.

The DBA was eventually completed in February 2020. Both TE and VE investigations were marked as unsatisfactory. The Operator was informed under cover dated 12 February 2020. Mr Curtis responded separately on 17 February 2020 and included documentation. The Traffic Examiner described an inability to supply some records, with an absence of evidence of Working Time Directive compliance. The Vehicle Examiner noted a lack of Training and management of Preventative Maintenance Inspections, with intervals exceeded) and weaknesses in the Driver Defect Reporting Systems. I summarise the relevant evidence as following:

TE, Ms Smith, findings:

• Initially only data for two vehicles was produced, leaving two remaining, although one appears to an analogue recording device. That had to be chased.
• LT19 EKG was locked in with the Company card on 25 May 2019 but not specified on the Operator’s Licence. That has now been specified, with a disk issued by the OTC.
• There weas no visible data produced for RO08 CVA beyond 31 January 2020. The vehicle was apparently not used during that period.
• No analogue records were produced for GN54 HHX but apparently the vehicle was not used during this period.
• Vehicle W5 POO has only now been removed from the Operator’s Licence. At the time it was SORN but still specified.
• GN11 AFK was driven without an appropriate card for 1 hour and 25 minutes from 12:55 on 14 October 2019 to 15:52 on the same date (42 km). The Operator blamed a part-time summer driver; who is no longer employed.
• LT19 EKG was driven without an appropriate card for 14 minutes from 16:04 on 29 October 2019 until 17:08 (3 km) and again for 17 minutes from 15:20 on 31 October 2019 until 16:52 (3 km). I note that some of the Operator’s vehicles fall within the ‘welfare status’ arrangements and are exempt.
• The Operator failed to produce raw tachograph downloaded data files for: DP58 LOO; DP02 LOO; DP03 LOO; DP04 LOO; DP51 LOO; MX13 YHM. The registrations had shown up on the analysis but would not appear to fall within scope.
• Drivers were not recording their walk-round checks on the majority of occasions. The Operator has apparently reminded them of their responsibilities.
• There were no manual entries created for periods of other work undertaken by the drivers. The Operator claimed that this was not uncommon.
• The Operator only provided one example of a driver infringement report, this was dated in August 2019 and therefore outside the requested period.

In representations I was told that driver cards are now downloaded every Monday, with a fall back of every fortnight. Digital Vehicle Units are apparently now downloaded weekly, with analysis by the RHA. Mr Taylor conducts interviews if the matter is considered serious but the main issue is with insufficient breaks (WTD) because the drivers do not record their breaks correctly. I am unclear how that behaviour will be changed. I noted that there can be significant periods when drivers remain on site during set up and dismantling of an event. I am assured that the risk of offence is minimised.

VE, Mr Thornhill, findings:

• No evidence of QA checks of driver walk-rounds or defect reporting. The Operator then adopted a spot check register.
• No evidence of a driver non-compliance system. The Operator indicated that it would seek further training through the RHA in order to implement a system for recording.
• Recurring driver identifiable defect recorded on PMI records with no corresponding DDR. The Operator proposed a spot check system supported by toolbox talks, driver instructions and disciplinary processes.
• The Operator took steps to ensure the retention of maintenance records.
• Two inspection intervals were extended to 11 ISO weeks. The Operator indicates that the fitter left it too late to write up the PMI form. The promised change in contractor was eventually implemented (as above).
• In response to a recurring “high emissions light” with no evidence of repair, the Operator indicated that it had been advised by the contractor to minor the defect. That needed to be recorded as part of the maintenance record and evidenced. The Operator promised to monitor all DDRS going forward to ensure that rectification work signed off and filed in the vehicle maintenance folder. This was part of the commitment made to quality check on the maintenance and the use of duplicate driver defect reports for auditing.
• The Operator indicated that the maintenance contractor had been instructed to carry out periodic laden brake tests. The limited inspection records available due to the pandemic confirm that laden brake tests are taking place.
• Procedures were subsequently put in place to identify a lack of wheel-of and VOR systems
• In response to comments on a lack of training, the Operator referred to attendance at an RHA briefing with a presentation from Backhouse Jones; and that drivers would attend a half-day session on DDRS on 28 February 2020. There would also be tool-box talks and information packs issued.

The operator was put on notice of the potential seriousness of these findings in correspondence dated 19 March 2020 (pages 56 and 57). The Operator was invited to provide further assurances. The response dated 9 April (pages 58 and 59) referred to a change in maintenance contractor and other proposals for weekly downloading of driver cards for analysis by the RHA but the Working Time Directive was not addressed.

A further letter was sent to the Operator on 4 May 2020 enquiring about the ability to offer undertakings that might address compliance concerns, with reference made to the Working Time Directive. A succession of brief emails was received. To the Operator’s credit reference was made to attendance on a hybrid Operator Licence Awareness course provided by the RHA on 7th May 2020 (evidenced on 22 May 2020). It was attended by John Curtis and Theodore Terkelsen. No other undertakings were offered. Following the DTC’s assessment of the necessity of a CPC holder and, in light of the above, it was perhaps inevitable that a Public Inquiry would be called.

In advance of the Public Inquiry I was supplied with copies of licence checks for Drivers Secker, Bezman, Marin and Taylor. From the analysis seen Mr Secker has not driven. Only Mr Marin and Mr Taylor drove in July 2020. There is no analysis for Driver Pelin as he is currently in Romania. I have seen two analogue charts for Mr Marin. It appears that Mr Taylor attended a CPC course organised by the RHA on 28 February 2020. It will be for Mr Taylor to manage the driver defect reporting and to deal with matters arising from the inspections. I have seen an agreement with PW Commercials dated 1 March 2020 with a computer-generated forward planner.

I am informed that the operator changed contractor on 9 April 2020. All maintenance is conducted by the maintenance provider. The inspections are forward planned, using the wall chart and Outlook diary. The contractor is provided with a copy. The new contractor has full facilities including a rolling road brake tester and utilises FTA forms. I was told that the operator now appreciates the need for laden tests should be undertaken at every inspection. All four vehicles have since been tested. 20. I have seen maintenance records produced for the period since February 2020. As indicated above, they confirm that brake tests are being carried out as promised. I have seen electronic inspection forms which appear to have been produced by the previous contractor. They appear to show a number of driver detectable defects for which I could find no report. I use GN11 AFK – 16 April 2020, but there is a handwritten report for that date as well and GN54 HWX – 11 February 2020, as examples. I cannot help but contrast the lack of driver detectable defects on the latest inspections. In truth this probably reflects the limits in work during the lock down period.

4. Determination

I am satisfied that there is sufficient evidence upon which to base adverse findings under the following sections: 26(1)(e) and 26(1)(f).

I take account of the test passes since the last hearing. This is reflected in the DVSA targeting tool with OCRS at green/green. There have been no prohibitions or penalty notices since the last public inquiry. A letter requesting further assurances was sent by OTC on 4 May 2020. The responses did not best serve this Operator, although I again attribute this to the exceptional period of restrictions, and the pressure on the operator. In the last few months, the operator has seen its business drop by around 85%. The prospects for the type of seasonal work during the Summer and Autumn months upon which this operator relies, are now uncertain. The trading environment has required the operator to lower its charges and to extend the radius of work, thereby increasing its costs. That work usually involves 3 of the smaller vehicles but the licence is required to maintain the flexibility and capacity, which hopefully customers will soon return to and demand.

The Upper Tribunal suggested in 2013/007 Redsky Wholesalers Ltd that the “Priority Freight” approach might be adopted in considering fitness. I therefore started with the question 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? As with many elements of the Operator Licence, actions often speak louder than words. I take into account the representations made to me. On the Director’s own admission, there is still more work to impress what is required on the drivers. They need to show more care in the recording of their work and breaks. If they drive off-road, they need to consider the need for additional walk-rounds. The support available through the Foster consultancy undoubtedly adds to the assurances and mirrors in large part what was said to Ms Davis at the last Public Inquiry. I can see from the responses and the manner of this Director that he gives the business and compliance equal priority.

I have accepted undertakings amounting to the following:

• To employ a consultant to work with the operator to update compliance systems and to supply appropriate training and induction material to all parties relevant to this operator’s compliance under the Operator’s Licence;
• To have a compliance audit, in the terms of the accompanying letter, by 31 August 2021, with the report to be lodged with OTC by 19 September 2021.

This is a second Public Inquiry but there has been improvement. As indicated by the Contingency Statutory Document, I am permitted to weigh into the balance the impact of the restrictions in demonstrating compliance. Current trading conditions allow me to take deterrent action against the Operator’s Licence, without threatening its ability to meet immediate demand. The Operator’s Licence will be curtailed by 1 vehicle for a period of 14 days commencing 23:45 22 July 2020. I make a direction under section 26(6) that vehicle GN54HHX will not be used on any other regulated operation during that period. Due to the exceptional pressures on the licensing teams, I am content for Mr Backhouse to hold the relevant disc during that period.

RT/TC/22/7/20