Decision

Decision for Drinkwater Ltd (OF2011063) and Lee Drinkwater – transport manager

Published 26 October 2020

In the Eastern Traffic area.

Confirmation of the Traffic Commissioner’s decision.

1. Background

Drinkwater Ltd holds a Standard International Goods Vehicle Operator’s Licence authorising 4 vehicles and 1 trailer. The Licence was granted on the 5th April 2018. The Directors are David Lee Drinkwater and Lee David Drinkwater, who is also the Transport Manager. The operator has applied to increase that authority to 8 vehicles. That application was received on 14 January 2020 but delayed by the coronavirus restrictions. could be achieved- although this would be delayed due to Covid 19 disruption. Correspondence of 3 June 2020 suggest that the operator may only require an increase to a total of 6 vehicles.

There is one Operating Centre: Royal Ordnance Depot, Harmans Way, Weedon, Northampton NN7 4PS. The applicant proposes to have maintenance conducted by New Euroline with DCP Vehicle Services retained as an alternate, as was the case during the lockdown.

The Operator has not previously attended a Public Inquiry or faced regulatory action taken against the licence.

Records show that Mr Lee Drinkwater is one of four Transport Managers named on OF1085540, held by David Watson Transport Ltd. In the TM1 form, Mr Drinkwater committed himself to working 40 hours per week in that position.

2. Hearing

The Public Inquiry was listed for today, 13 August 2020, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was present in the form of Mr Drinkwater, who appeared unrepresented.

3. Issues

The Public Inquiry was listed for me to consider whether I needed to intervene specifically in relation to the following sections of the Goods Vehicle (Licensing of Operators) Act 1995:

• section 26(1)(c)(iii) – prohibitions (page 62)
• section 26(1)(ca) – fixed penalty notice (page 64)
• section 26(1)(f) – undertakings to ensure that vehicles and trailers are in a fit & serviceable condition, to have an effective written driver defect reporting system, to have complete maintenance records and retain them for a period of 15 months to be made available upon request
• section 26(1)(h) – material change
• section 27(1)(a) – repute, financial standing, professional competence by reference to Mr Drinkwater’s position as Transport Manager.
• section 28

and to allow the applicant opportunity to pursue its application by reference to the equivalent provisions in relation to the application under section 17, 13A(2) and 13C.

Mr Drinkwater was called to Public Inquiry in his role as Transport Manager and by reference to section 27(1)(b), Schedule 3 and Article 4.

4. Summary of Evidence

On 20 December 2019 a vehicle authorised to the Operator, RX13LMJ, received an S-Marked prohibition due to a wheel loss. Inspection showed the wheel hub to be damaged and that the washers were loose enough to be turned using fingers. A fixed penalty notice was issued. There is no available evidence that shows that the operator contacted OTC to advise of the prohibition being issued.

The application to increase authority followed, on 14 January 2020.

On 13 February 2020, Vehicle Examiner, Mr McAlindon, undertook an unannounced visit to the Operating Centre (page 57). He was met by Lee Drinkwater, Director and Transport Manager. Mr McAlindon’s findings (page 49) can be summarised as follows:

• Preventative Maintenance Inspection forms not filled in correctly with missing targets and missing rectification work against some defects
• Driver detectable defects leading to the prohibition issued to vehicle RX13 LMJ
• A lack of facilities for Randell & Sons to carry out weekly inspections at the Operating Centre
• There is only one roller brake test in the nine preventive maintenance inspection sheets seen for EF61 GOC.
• For EJ63 NJT there were only two roller brake tests amongst the 7 inspection records seen.
• For RX13 LMJ 3 roller brake tests in the six inspection records seen.

The operator’s response (page 54) refers to invoices for rectification work and that systems have been put in place to prevent the above shortcomings. The operator also claimed the driver defect reporting system had been updated and that the maintenance contractor, Randall and Sons, had been advised inspections were undertaken at another facility. The operator also claimed to have notified the Office of the Traffic Commissioner of the wheel loss incident.

A request for an explanation was sent to the operator under cover of a letter dated 8 April 2020 (page 71) seeking a response in regards to the minimal brake testing, the absence of toolbox talks and confirmation as to whether the details of the current maintenance provider had been provided to OTC. The operator was put on notice that I was not minded to grant an increase in authority following the above report. The operator responded on 9 April 2020 and advised that the maintenance contractor had been changed to that currently notified on the Operator’s Licence. The operator committed to brake testing at every Preventative Maintenance Inspection and provided a copy of a driver defect reporting sheet which was to be employed daily. The operator was unable to provide a copy of the letter which it claimed have been sent to the OTC.

It was noted that the Preventative Maintenance Inspection forms, which the new contractor proposed to use, were not up to date. It was also noted that the operator proposed to adopt a weekly driver defect reporting system meaning that there was a risk of vehicles being driven when not in a roadworthy condition. A further request for an explanation was sent to the operator on 11 May 2020 (page 86). That letter put the operator on notice that unless I could satisfy myself as to its future compliance, I would be forced to consider matters at public inquiry.

The operator responded on 14 May 2020 and stated that daily defect reports would be adopted going forward. The operator accepted that the previous system had resulted in vehicle RX13LMJ having been used despite defects having been identified. The record failed to note what rectification work had been undertaken. There is reference to the change in maintenance provider to DCP Vehicle Services (but Euroline was to be retained) and a commitment to tapley brake testing every six weeks with a roller brake tester being used quarterly but only fully loaded ‘where possible’.

The bundle contains a further email on 3 June 2020, developing its brake testing regime, and indicating that a consultant had been retained to assist in a bid for FORS accreditation.

5. Determination

I am satisfied that there is sufficient evidence upon which to base adverse findings under sections 26(1)(c)(iii), (ca), and (f) - vehicles and trailers to be in a fit & serviceable condition, to have an effective written driver defect reporting system, to have complete maintenance records.

The wheel loss incident occurred on 20 December. Mr McAlindon attended for the maintenance investigation on 13 February 2020. The operator and TM had the intervening period to assess the compliance systems. In email correspondence with OTC he made an argument against his own weekly driver defect reporting system which was in place at the time and, which failed to prevent the most serious infringement. The incident has had a serious impact on the scoring made by DVSA but I have noted the 100% annual test pass rate and the single prohibition with FPN.

However, that incident automatically requires me to consider a loss of repute. I do not expect to hear a TM has ‘trusted’ a maintenance contractor and not managed them. I specifically referred to the absence of an undercover facility and inspection pit with intermittent brake testing. The weekly DDRS suggested that defects were left without rectification whilst the vehicle continued to be operated, including a brake warning light. That should have been anticipated by the Transport Manager. I also noted that the two PMI sheets produced immediately afterwards, did not appear to refer to IM 1 and 58. The attached brake tests appeared to have been carried out under-laden with the inevitable result and no attention was been paid to the obvious imbalances.

I acknowledge the efforts made by the operator and TM to engage with OTC during the lockdown period. In correspondence the operator implied that operations have been reduced with at least some drivers having been furloughed. Mr Drinkwater proposed the implementation of a daily DDR system, which I have now seen. That appears to be having some effect but really only around that inspection period. I noted that relevant instructions had been given to drivers, for them to sign upon returning to work. Concerning the apparent failure to repair defects reported as seen on the weekly DDR sheet for RX13 LMJ, Mr Drinkwater explains that both defects had been inspected and found to be still serviceable. He acknowledges that investigations should have been fully recorded on the sheet.

I have seen evidence of the move away from tapley tests to use of a rolling road. The operator is actively managing the maintenance – after the cost of brake chambers it was noted that the DTp reference on the plating certificate for EJ63 UJT was incorrect. This was raised with DVSA in correspondence in July. Mr Drinkwater was ‘already aware’ of the recommendation to conduct fully laden RBT at every PMI and during correspondence clarified the operator’s position. I have dip sampled the records produced today and noted the regular use of RBT and a general decrease in driver detectable defects being left until PMI. The operator quickly realised that it could not rely on mobile inspections carried out at its own site; both current contractors are said to have ‘full undercover facilities with inspection pits / vehicle lifts’.

Mr Drinkwater assures me that he is doing all he can to ensure compliance. The Operator has obtained FORS Bronze accreditation and has sought assistance from a consultancy in that regard. Online FORS training has been undertaken by all drivers and managers. There is an aim to attain FORS silver. The operator is aware of the need to ensure that operator licence requirements are also met and properly audited.

When I apply the starting question suggested by the Upper Tribunal in 2013/007 Redsky Wholesalers Ltd, by reference to 2009/225 Priority Freight: how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime – there are many positives to weigh into the balance and which occurred after the event. However, the fact that the most serious infringement occurred in the first place inevitably damages the repute of the operator and its Transport Manager. As the Tribunal stated in 2006/277 Fenlon: operators must be able to trust other operators to observe the relevant laws, rules and regulations. If trust between operators breaks down and some operators believe that others are obtaining an unfair commercial advantage by ignoring laws, rules or regulations then standards will inevitably slip and the public will suffer.

The risk materialised in the form of a wheel-loss shows there is a need for deterrent action to ensure future compliance. I quote from a recent appeal case: 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”. Simple refusal of the application by reference to section 13C(4) does not provide sufficient indication of the seriousness, but the actions taken subsequently provide significant mitigation. I was therefore careful to take account of the impact on the business, which is only now starting to recover from the lockdown period, but there can be no repeat. The Licence will be curtailed by 1 vehicle for a period of 14 days to commence 23:45 on 16 August 2020. The relevant vehicle details are to be supplied to the OTC by tomorrow. That vehicle will be prevented from use on other operations during that period, under section 26(6). The Transport Manager is warned and has already indicated his intention attend TM CPC refresher training

RT/TC/13/8/20