Decision

Decision for Ground Construction Limited (OF1001870) and Former Transport Managers: Danielle Middlemass & Sean Conroy

Published 14 May 2024

0.1 In the Eastern Traffic Area

1. Written Decision of the Deputy Traffic Commissioner

2. Public Inquiry held on 27 March 2024 at Cambridge

3. Operator: Ground Construction Limited (OF1001870) and Former Transport Managers: Danielle Middlemass & Sean Conroy

4. Background

The operator company, Ground Construction Limited T/A GCL, holds a Standard Operator’s Licence, granted in January 2002, to operate 30 vehicles and 54 trailers. Directors, Trevor Diviney and Stephen Bell, attend the public inquiry, authorised to act on behalf of their fellow directors and the operator company.

Following the issue of an Immediate S-marked prohibition in respect of a trailer used with tread worn below the legal limit, DVSA conducted an unannounced Maintenance Investigation Visit Report (MIVR), in August 2023.

The investigation raised concerns regarding:

• Late safety inspections,

• Maintenance documentation not being correctly completed, with discrepancies in tyre wear and brake performance, incorrect/incomplete sign off,

• Deficiencies in driver defect reporting systems,

• Safety critical defects found at MOT test in 2023,

• Ineffective wheel torquing arrangements,

• No safety recall notification system in place.

Most seriously, DVSA Examiner, John Hudson, recorded, “There is clear evidence that the brake test printout results have been altered for vehicles”.

Director, Trevor Diviney, responded on behalf of the operator company. One of the vehicles subject to the late inspection was said to have been off-road. However, DVSA Examiner Hudson, noted that 177km were completed during the “off-road” period.

The operator company submitted a folder containing “Toolbox Talks from FORS Policies and Procedures”. 12 different subjects of toolbox talks were included with attendance register forms purportedly signed by the transport manager and attendees. The DVSA Examiner noted, “All 13 toolbox talk attendance register forms have been duplicated/signed with identical signatures and dates. Dates are not in order”.

The director, declined to comment on the falsified brake test reports stating that the operator company was conducting a disciplinary investigation into the creation and production of the records.

The operator company and the 2 transport managers designated at the time of the investigation, Danielle Middlemass and Sean Conroy, were called to public inquiry by letters dated, 23rd January 2024.

The letters identified that the good repute of the operator company, its directors and the transport managers, were in issue having regard to the false records. Breaches of undertakings in respect of fit and serviceable vehicles/trailers, maintenance records and driver defect reporting systems were also specified.

The initial inquiry, scheduled for 26th February, was adjourned until 27th March 2024.

5. The Public Inquiry

At the public inquiry, the operator company attended through directors Trevor Diviney and Stephen Bell, legally represented by Mr Tim Ridyard, Solicitor.

Transport manager, Danielle Middlemass, attended represented by Mr Andrew Woolfall, Solicitor.

Transport manager, Sean Conroy, failed to attend. He had not responded to the call-up letter served in respect of the February hearing date and had not acknowledged receipt of the adjournment letter.

Director Trevor Diviney confirmed that Sean Conroy was still in the employment of the operator company/Group and stated that Mr Conroy was aware of the hearing. Mr Diviney had expected Mr Conroy to attend and had tried to contact him on the morning of the public inquiry. Mr Conroy had some “personal issues”.

Whilst documentation in the brief referred to him as a “zero-hours” transport manager, his designation as a formal transport manager at the time of the issues carries legal responsibilities and I deal with his failure to attend, or offer any response/explanation, and his good repute in this decision.

DVSA Vehicle Examiner, John Hudson, was not requested to attend by the operator company and his evidence was not challenged at the inquiry.

Prior to the inquiry, I received a file of evidence on behalf of the operator company and shortly before the hearing I received documentation from Mr Woolfall on behalf of Danielle Middlemass.

I heard evidence from the directors and Ms Middlemass and representations from Mr Ridyard and Mr Woolfall.

6. Findings on the Evidence

I find grounds for action against the licence under the following provisions of the Act:

i. Breach of undertakings (Sec. 26(1)(f)) – there is a breach of the general undertakings on an operator’s licence in respect of;

• keeping vehicles fit and serviceable – Immediate “S-marked”   prohibition issued at roadside encounter and prohibition at annual Test.

• Keeping complete and correct records of maintenance safety inspections – incomplete and late inspection reports.

• Driver defect reporting system – Driver detectable prohibitions and defect reporting/rectification records incomplete.

ii. Failing to meet statement of expectations (Sec. 26(1)(e)), in respect of maintenance intervals and arrangements.

iii. Prohibitions issued against vehicles/drivers (Sec. 26(1)(c)(iii)).

As indicated in the call-up letter and the brief, the issue of false brake test and training records must give rise to consideration of the operator company’s, and the transport managers’, good repute.

In respect of the operator company, and the transport manager Ms Middlemass, there is no challenge to the DVSA Examiner’s assessment of the records as being false. The records clearly show the same precise test results data for different vehicles at different times and records for certain vehicles did not correspond with inspection dates.

As far as the directors are concerned, they emphatically deny having any knowledge of the falsifications until the DVSA examination findings. Transport Manager, Danielle Middlemass, takes responsibility and she stated that no director of the operator company pressured her, or was involved in their production, to DVSA.

In these circumstances, I do not find the operator company culpable in commissioning the false records. However, I do find that the directors have failed to have sufficient control of compliance systems and they should have had greater oversight of documentation produced to DVSA.

Persons who control an entity which operates heavy goods or public service vehicles must have sufficient knowledge to exercise proper oversight. (First Class Freight Ltd (2012/025).

None of the Directors (including the previous director with line management responsibility for the transport manager) had attended any formal training in operator licensing despite the licence having been granted in 2002. It was not until October 2023 that Trevor Diviney and Stephen Bell attended an Operator Licensing Awareness Course, a minimum expectation for at least one director of a company authorised to operate 30 vehicles.

Danielle Middlemass produced the minutes of past Transport Management meetings which were heavily biased in monitoring cost over compliance. She also produced an Employee Appraisal Form from 2022 where she had identified,  “Having the title of Transport Manager but not feeling as if I am fulfilling my full role”, with no apparent response or remedial action from the operator company.

The evidence from Trevor Diviney failed to convince me that there was an appropriate level of knowledge/oversight of the transport compliance regime prior to the involvement of DVSA in August 2023. The operator company has demonstrated far too much reliance on appearance rather than substance in its transport management arrangements, and, the lack of detailed consideration of key performance indicators and record keeping prior to the investigation is unacceptable for an operator with this profile and scale of business.

The directors had recognised/taken good advice that this needed to change and current minutes produced to the inquiry showed a far more acceptable balance between compliance key indicators covering maintenance, drivers’ hours and performance as well as cost.

I find that Transport Manager, Danielle Middlemass, was, at least, wholly negligent/reckless in the production of the falsified brake test results. On her own evidence, she had made no attempt to check the accuracy of the reports before producing them to DVSA. That, in itself, is unacceptable and inconsistent with the trust that Traffic Commissioners place in transport managers. Loss of good repute is appropriate and proportionate in these circumstances.

On the facts, I have no doubt that Danielle Middlemass knew that the documents were falsified. I have regard to Mr Woolfall’s cautionary submissions about the most serious allegations requiring the most cogent evidence. Whilst there was no formal finding in the disciplinary as to Ms Middlemass’s involvement in the creation of the  false records, that was because she chose to resign before the disciplinary hearing alleging gross misconduct. The investigation by the operator company appears thorough and comprehensive and identified substantial concerns about her role in the creation of the records. The report includes an IT log of the request for records being made by Ms Middlemass with statements acknowledging that brake tests were missing because they had not been done. This appears to back up the interview statement of “RG,” the Group IT Manager.

The investigation report details uncontested evidence that brake tests were produced to DVSA on dates when it would have been obvious to Danielle Middlemass that authentic records were not available. For example, on dates when the PMI sheet states “brake machine not working”, or “brake test failed”, or, “PMI in Elstree” where there was no brake test machine. I note that it was Ms Middlemass’s practice as transport manager to sign off the PMIs as “safe and roadworthy”, which would have alerted her to the fact that certain rolling road brake test reports were missing. Her statement in the investigation that she checked the date, time and result of the brake test for accuracy before passing on the records to DVLA is patently untrue.

I consider her oral evidence at the hearing which was hesitant and unconvincing, even allowing for the personal stresses and nervousness of appearing at a public inquiry. No satisfactory attempt was made, either in a written statement before the hearing, or in her oral evidence, to explain the obvious discrepancies detailed in the operator company’s investigation report other than flat denials, or, lack of recollection.

I take into account the fact that she knowingly produced inauthentic training attendance logs, photocopying the signature sheets for one module across several other modules. It was only the module subject and her name and signature that was changed at the top of each attendance sheet and she stated in her oral evidence that no-one else was involved in the production of those records.

Her evidence that the modules on any one date could be covered in 10-15 minutes in total, with questions, was wholly unbelievable, even if they were “refresher” sessions. The sessions signed off on one date include subjects as diverse and detailed as; health and safety, In-vehicle tech, drivers’ hours and working time, vehicle manoeuvring, Personal safety, counter-terrorism, load safety, wheel torquing and driver defect reporting. I conclude that these photocopied attendance sheets were just “window dressing” rather than meaningful (and necessary) training.

I also note her willingness to sign off Preventative Maintenance Inspection records as “evidence that the vehicle was in safe and roadworthy condition” despite admitting that she did not have the technical qualifications and competence to make such a declaration.

A transport manager has a professional duty to provide continuous and effective management, and producing important safety related documentation without sufficient regard to the accuracy of its contents is contrary to that duty.

Regarding the brake test results, Danielle Middlemass should have known from her “continuous and effective management” that brake test results were missing from PMI sheets that she had signed off as evidencing safe and roadworthy vehicles. In all the circumstances her explanation that she had merely asked for print-outs of tests she believed to have been carried out is wholly unconvincing.

7. Considerations and Decision

In considering the good repute of the operator company, I firstly address the Priority Freight (T/2009/225) question; “how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime?”

There can be no doubt that if the operator company had directed the production of the false brake test records or had knowingly submitted them to DVSA, loss of good repute would follow. Senior Traffic Commissioner’s Statutory Document No. 10, Annex 4, places attempts by an operator to conceal failings in the “Severe” category where revocation and disqualification are potential outcomes.

In the case of Arnold Transport and Sons Ltd. v. DOENI [2013]NT082, the Upper Tribunal stated;

“The attitude of an operator when something goes wrong can be very instructive. Some recognise the problem at once and take immediate and effective steps to put matters right”.

The evidence submitted by the operator company demonstrates that immediate action was taken following the DVSA investigation report. A detailed disciplinary investigation and process was initiated and whilst this was not seen through to its conclusion, new transport management arrangements were implemented.

Apart from the training attended by the directors, a new transport manager, Michael Durkan, has been appointed by the operator company and he appears suitable and competent to perform the role.

I have considered the DVSA Vehicle Examiner Report dated 21st March 2024 and note that there are still “many discrepancies in the records” received. VE Hudson doubts whether headlight aim equipment is being correctly utilised, although the operator states it is.

VE Hudson states, “PMI scheduling is not being managed” and discrepancies in tyre tread depths and missing odometer readings have been identified. Improvements have been recognised in brake test arrangements but, taken overall, it cannot be said that the steps taken have been fully effective in putting matters right.

I place the operator company’s failings in the “Serious” category in Annex 4, Statutory Document No 10. The positive steps taken following the investigation and the absence of previous serious regulatory findings, lead me to the determination that the operator company can be trusted to run a compliant licence in the future. That is dependent on the directors putting into practice their stated good intentions in respect of supervision and monitoring of compliance systems.

I mark the regulatory failings identified in the DVSA report and the operator company’s lack of oversight of documentation produced to DVSA by a Curtailment of the number of vehicles authorised on the licence overall from 30 vehicles to 20. The operator is required to inform the OTC within 14 days of the specified number of vehicles operated from each of the 3 operating centres.

I place the following undertaking on the licence:

Independent Audit of maintenance and traffic compliance systems to be conducted in March 2025. Copy of report to be sent to OTC Cambridge by 1st April 2025 with detailed actions to address any recommendations.

In considering the matter of good repute of the transport manager, Danielle Middlemass, I take into account her relative youth/lack of wider experience as a transport manager, her excellent character reference from her new employer, the testimony as to the previous high regard the operator company had for her work, the lack of support/ senior management oversight and her personal circumstances.  Nevertheless, producing false records and thereby attempting to deceive DVSA examiners in a formal investigation is wholly incompatible with the  trust traffic commissioners place in transport managers and the good repute required, and, loss of good repute is determined in this case.

Under paragraph 17B(2) of Schedule 3 (as amended by the Road Transport

Operator Regulations 2011), where a traffic commissioner determines that a transport manager has lost their good repute, the traffic commissioner must order the person to be disqualified from acting as a transport manager.

I have regard to the positive features above in keeping that disqualification to the very minimum commensurate with the seriousness of the conduct. On loss of good repute, Danielle Middlemass is disqualified from acting as a transport manager on any licence for a period of 12 months. I make no formal rehabilitation order and in order to regain her good repute, continued good performance in her role within her present operator/employer company, and, a recognition of the responsibilities that go with the statutory role of transport manager, will count heavily in her favour.

Sean Conroy has failed to respond to any communicatons from the OTC and fails to attend the public inquiry. The operator company referred to him as a “zero hours  transport manager” which is not a concept familiar or acceptable to me at all. The only formal documentation I have seen on OTC records is a nomination for him on a seocnd licence for the operator company where it states that he would be working “45 hours per week” having declared a 45 hours commitment to the operator company. Surprisingly, this does not seem to have generated an enquiry from the OTC, but, in any event, the operator company and Mr Conroy, as a qualified transport manager, should have ensured he was removed from the operator company’s licence if he was not carrying out any transport management functions. A transport manager can never be a manager “in name only”.

On failing to respond to a formal call-up letter, and, failing to attend a public inquiry called in respect of serious regulatory issues, Sean Conroy loses his good repute as a transport manager and he is disqualfied indefinitely from acting as a transport manager. Should he wish to regain his good repute he may apply after a minimum period of 12 months under Schedule 3, para. 17 of the Act.

The call-up letter identified environmental issues regarding the operator company’s site at 250 Toddington Road, Luton, LU4 9DZ. Following confirmation of planning permission amendments, and with the consent of the operator company, the following environmental condition is placed on the licence in place of the existing restriction on any operation outside normal business hours;

“With the exception of 8 movements between 06.00 and 08.00 and 4 movements between 18.00 and 19.00 Monday to Friday, there will be no operation, movement, loading or unloading of unauthorised vehicles or trailers at the operating centre before 08.00 and after 18.00 Monday to Friday; before 08.00 and after 13.00 on Saturdays; and there shall be no operation, movement, loading or unloading of authorised vehicles or trailers at the operating centre on Sundays and Public Holidays.”

Anthony Seculer
Deputy Traffic Commissioner,

12th April 2024.