Decision

Decision for Electrification Construction Services Ltd

Published 11 December 2023

0.1 IN THE NORTH WEST OF ENGLAND TRAFFIC AREA

1. ELECTRIFICATION CONSTRUCTION SERVICES LTD

1.1 OC2029420

2. TRANSPORT MANAGER JAMES ASHTON

2.1 CONFIRMATION OF ORAL DECISION OF THE TRAFFIC COMMISSIONER

In the matter of the Goods Vehicle (Licensing of Operators) Act 1995

3. Public Inquiry held at Golborne on 20 November 2023

4. Introduction

Electrification Construction Services Ltd (“The operator”) has held a goods vehicle operators’ licence OC2029420 since 18 February 2020. This was initially a restricted licence authorising the use of 2 vehicles and 2 trailers. The licence was varied to a standard national operators’ licence in September 2021 and further varied in July 2023 to authorise the use of 4 vehicles. There is currently 1 rigid vehicle in possession.

The operator’s directors are Shane Williams and Charles McLauchlan. The internal Transport Manager is James Ashton who has been in post since 15 February 2022.

In March 2022 the DVSA conducted a desk-based assessment of the Operator’s compliance, this being shortly after Mr Ashton’s appointment as Transport Manager. The DVSA report found numerous unsatisfactory issues relating to both compliance with the expectation of vehicle maintenance and driver management. The findings appeared to be primarily based on the failure to provide evidence of proper records and effective systems.

The Operator responded by accepting its shortcomings which it largely attributed to the unsettling period of transition between its former external Transport Manager and Mr Ashton. It accepted that it did not hold or had lost some records. The Operator pointed to a change of maintenance provider and adoption of the R2C digital record keeping app amongst several steps it submitted would address the issues.

The DVSA did not refer the matter to me at that stage but arranged a follow up Maintenance Investigation Visit by a Vehicle Examiner in July 2022. That report found much in the way of improvement and acknowledged that Mr Ashton was making changes whilst still relatively new in post. However, there were there were still unsatisfactory aspects that needed attention, including actions previously identified by the desk-based assessment report in March 2022.

The Vehicle Examiner was content with the assurances given by the Operator and did not refer his report to my office. However, the DVSA decided it would undertake a further assessment in July 2024.

In September 2022, the Operator applied to increase the authority on the licence to 4 vehicles. The application was considered by a Deputy Traffic Commissioner in March 2023. Having considered the previous history, the DTC determined that the application could be granted. The DTC noted it was some time yet before the follow up assessment would be available and did not feel the application needed to be held in abeyance until that time.

The further desk-based assessment was completed on 1 August 2023. The overall assessment remained graded as unsatisfactory albeit fewer issues were identified that in the two previous reports. The examiners noted that there were still outstanding issues that had been marked as unsatisfactory in the previous assessments namely, the use of the Operator’s own premises to undertake inspections when it did not have adequate facilities and insufficient training of drivers on load security.

Additionally, concerns were raised about the effective use of the forward planner as three inspections had fallen into the 7th ISO week and the lack of evidence of management of drivers’ hours and the working time directive. There also appear to be some confusion as to the identify of the operator’s maintenance provider between the evidence provided and the information held on the licence record. The examiners drew attention to the absence of evidence that the MoT failure had been investigated.

No evidence was provided to the DVSA examiners that Mr Ashton had undertaken continuing professional development (although I am aware from records held by my office that he had attended a refresher course in 2021). Their findings prompted the examiners to question if Mr Ashton was only exercising partial control of the licence.

The Operator in its response explained the vehicle was leased from MV Commercials (named as a provider on VOL) and it arranged inspections with Motus Commercials. If those could not be accommodated at Motus, technicians would carry out the inspection in the Operator’s own workshop. Further evidence was provided of those facilities.

Mr Ashton said he could not find details of any annual test failure since his appointment. In fact, vehicle L24 ECS failed at initial presentation on 10 May 2023 for a steering defect.

Neither the Operator nor its directors or TM Ashton had been called to a public inquiry previously. There was no record of any prohibitions issued and the annual test outcomes since the licence was granted were unexceptional with one initial failure out of five presentations and no final failures.

The series of DVSA reports raising concerns and the apparent lack of progress led to the Operator and TM Ashton being called to this public inquiry.

5. The Call to Public Inquiry

The Operator and Transport Manager Ashton were called up to the public inquiry initially by letters dated 10 October 2023 and with a proposed hearing date of 14 November 2023. Mr Ashton asked for an adjournment as he had a pre-booked holiday, and I agreed the matter could be relisted for today. Revised call up letters were issued on 1 November 2023.

The call up letter to the Operator gave notice that the grounds for regulatory action in Sections 26(1)(b), 26(1)(e), 26(1)(f) and 27(1)(a) of the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”) were to be considered as well as the provisions for disqualification in Section 28 of the Act.

The call up letter to TM Ashton gave notice of consideration of the requirement of good repute and professional competence in Schedule 3 of the Act.

6. The Public Inquiry

The Public Inquiry was heard at Golborne today.

The operator was represented by its directors, Mr Williams and Mr McLaughlan.  TM Ashton was also present. The parties were represented by Darren Finnegan of counsel instructed by Logico Transport Consultants.

7. Evidence

In advance of the hearing, I was provided with a comprehensive bundle of evidence by the Operator.

This included an overview of an audit by Logico Consultants (who are also the Operator’s appointed representative). That contained a 45-point action plan with the actions varying in urgency and importance but including matters previously identified by the DVSA.

The supporting documentation revealed a continuing confusing picture as to maintenance providers. The vehicle currently in possession had been inspected 4 times since July 2023 but by 3 different providers, one of whom (Wigan Truck) was not specified on the licence. The only evidence of brake testing for the vehicle was at its annual test and that recorded it was insufficiently laden.

Shortly before the hearing I received written submissions from Mr Finnegan. These fairly conceded that the Operator’s past failures could fall into the category of “severe to serious” for consideration of regulatory action by reference to the guidance in the Senior Traffic Commissioner’s Statutory Document Number 10. However, it was argued that the positive features including the action taken since the DBA in March 2022 rendered the matter more suitable for consideration of action in the moderate to serious category.

I heard evidence today from Mr Williams as the director who leads on licence compliance and TM Ashton.

They confirmed that the vehicle operated was leaded from MV Commercials and that the hire company arranged the servicing. They accepted this had not been to the standard expected in the past. They have now refused to allow PMIs to be undertaken at their operating centre as they accept it does not have the necessary facilities. All inspections since August 2023 have been at a dedicated service facility.

Mr Williams and Mr Ashton have a meeting arranged with MV Commercials to set out their expectations that the hire company meets its obligations to ensure the vehicle is properly maintained and records kept so that any non-compliance by the Operator in future is avoided.

Mr Williams is booked to attend OLAT training on 29 November 2023. The Operator also indicated that it would commit to laden roller brake tests of its vehicle at every preventative maintenance inspection.

Mr Finnegan in closing submissions conceded that regulatory action must be taken but again asked me to limit this to action in the “moderate” category.

8. Findings of fact

The relevant evidence submitted showed sufficient financial standing. I am satisfied that the failings have not arisen due to any lack of resources or attempt to gain a commercial advantage. In fact, the evidence indicates that the Operator has not received value for money from its maintenance provider or a service that reflects the terms of the contract between them.

I find that the evidence submitted beforehand and confirmed at the hearing confirms that the following grounds for regulatory action are made out:

• There have been failures to promptly notify changes of maintenance providers. This satisfies the grounds for regulatory action in S26(1)(b) of the Act.

• Statements made on applying for the licence have not been fulfilled including adherence to the stated 6 weekly maintenance inspection intervals, and that the inspections would be carried out by MV Commercials. This satisfies the grounds for regulatory action in S26(1)(e) of the Act.

• The Operator has not fulfilled the undertakings it gave on applying for the licence that it would keep its vehicles fit and serviceable, observe the rules on drivers, tachographs and keeping proper records, and that it would ensure drivers recorded defects promptly and in writing.  This satisfies the grounds for regulatory action in S26(1)(f) of the Act.

These findings call into question the good repute of the Operator, but I draw back from finding it is lost.

I also find that the evidence I have seen and heard demonstrates that James Ashton has not been exercising fully effective and continuous management of the licence as Transport Manager.

9. Decision

Having reached the findings of fact recorded above, I have considered the balancing exercise and have considered the positive and negative features by reference to the guidance in the Senior Traffic Commissioner’s Statutory Document Number 10.

The positive features that I identify are:

• There do now appear to be appropriate systems and procedures in place to prevent operator licence failings.

• There are appropriate analysis procedures in place to detect falsification, drivers’ hours and/or Working Time Directive infringements.

• Changes have been made with tangible evidence in support, to ensure compliance.

• The Operator and TM Ashton co-operated with the DVSA inspection visit.

• This is the Operator and TM Ashton’s first public inquiry.

• There is no record of prohibitions, and the MoT failure rate overall is not troubling.

These positives must be balanced with the following negative features:

• The Operator failed to co-operate fully with the desk-based assessment process on both occasions as it failed to take sufficient care to make sure that all relevant evidence requested was made available to the DVSA.

• The Operator has failed to make all the changes that it was asked to address in previous DVSA assessments.

• The Operator and TM Ashton have failed to heed the warnings and guidance that was given in the two DVSA reports in 2022 and have not acted with sufficient expedition to address all their licence compliance failings.

Having balanced these features and focussed on my perspective of the operator’s current compliance, I determine that this is a case that falls in the category of “moderate to serious” for the purposes of assessing the starting point for regulatory action.

I have gone on to consider the Priority Freight question of whether I can trust the operator to be compliant in future? I answer that question in the affirmative given the changes it has made to date and the absence of evidence that the failings in their approach have resulted in tangible concerns such as prohibitions or fixed penalties.

Mr Finnegan properly referred to the categorisation of Operator approaches to public inquires as set out by the Upper Tribunal in NT 2013 82 Arnold Transport Ltd. I agree with his submission that this Operator falls into the second category of those who only recognise the problem (or the extent of it) “when it is set out in a call-up letter and begin to put matters right in the period before the Public Inquiry takes place.”

The failure to act more promptly on all the findings of the DVSA assessments is a concern. Had the Operator acted with more urgency and purpose after the July 2022 DVSA visit, it could have avoided this call to public inquiry. The DVSA involvement has not been sufficient to influence the degree of improvement expected and for that reason I consider that I now need to take regulatory action to ensure the Operator is left in no doubt about its obligations as a licence holder.

Regulatory action will also serve the purpose described in the judgment of Thomas Muir (Haulage) Limited (1999) SC  86 of “deterring the operator or other persons from failing to carry out their responsibilities under the legislation”.

I consider that the appropriate and proportionate regulatory action in this case should take the form of a curtailment to 2 vehicles and 2 trailers until further order. This reflects the current extent of the operation and has the effect of reverting the licence to its original size prior to the variation in March 2023.

That action is supplemented by the acceptance of the undertakings offered as set out above and which add to my confidence in future compliance.

Whilst I do not set a fixed duration on the curtailment, I do not exclude the possibility of a future application for increase being considered favourably if the Operator has fulfilled the undertakings satisfactorily and can demonstrate tangible progress has been made on the outstanding issues.

The same considerations apply to my assessment of Mr Ashton’s good repute as Transport Manager. The issues drawn to my attention raised troubling questions about his effectiveness in that role. However, there are sufficient positive features to balance the negative aspects and persuade me that a finding of a loss of good repute would be disproportionate. However, I find that Mr Ashton’s good repute as Transport Manager is tarnished. I record a formal warning on his record as Transport Manager.

9.1 Gerallt Evans

Traffic Commissioner for the North West of England

20 November 2023