Decision

Decision for Hilton Ltd (OF1095757)

Published 11 April 2024

0.1 In the Eastern Traffic Area

1. Confirmation of the Traffic Commissioner’s Decision

1.1 Hilton Ltd (OF1095757)

2. Background

Hilton Ltd holds a Restricted Goods Vehicle Operator’s Licence authorising 4 vehicles only. The Directors are Peter Andrew Hilton and Sarah Ann Hilton.

There is one Operating Centre at Hilton Coachworks, Unit D Raynham Road, Bishop’s Stortford CM23 5PJ. Preventative Maintenance Inspections were said to be carried out in-house, at 8-weekly intervals. I saw electronic Truckfile records produced by MOTUS Truck and Van. The record was updated by Mr Rand to add MOTUS and Harlow Truck Centres (for repairs).

Mr and Mrs Hilton held a Standard National Goods Vehicle Operator’s Licence OF103254 from 19 May 2004 until its surrender on 1 September 2010. This operator was issued with a warning in June 2015 following late payment of the renewal fee.

3. Hearing

The Public Inquiry was listed for today, 6 March 2024, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was present in the form of Mr and Mrs Hilton, Directors, accompanied by Mr Cottenden, a consultant and CPC holder, Paul Underdown (Head of business operations) and Bradley Rand (Workshop Controller, who has internal day to day responsibility for O Licence compliance), represented by Richard Pelly of Pellys Transport & Regulatory Law.

4. Issues

The Public Inquiry was for me to consider whether I needed to intervene in respect of this licence and specifically by reference to the following sections of the Goods Vehicle (Licensing of Operators) Act:

•        26(1)(b) – conditions on licence to notify changes, in this case relating to maintenance.

•        26(1)(e) – statements relating to maintenance and inspection intervals, and to abide by conditions on the licence.

•        26(1)(f) – undertakings (vehicle to be kept fit and serviceable, driver defect reporting, with complete maintenance records).

•        26(1)(h) – material change: fitness to meet the licence obligations and finance to support maintenance.

•        28 – Disqualification.

The operator was directed to lodge evidence in support by 21 February 2024, including financial, maintenance and other compliance documentation. An email of 2 February 2024 from a Paul Underdown, Head of Business for Hilton Coachworks the trading name of Hilton Ltd, acknowledged those Directions. He notified me that Simon Smith was no longer with the business (see below). The operator had employed Bradley Rand to review and improve vehicle operations using the Examiner’s recommendations. He was asked to provide evidence of the processes, systems, and procedures now in place. Matthew Bloom was assisting him.

The Examiner questioned the nature of transport operations and the type of operator’s licence required. He noted that the operator returns the repaired vehicles to the owner which fell outside the scope of a restricted licence.

Financial evidence was sufficient to demonstrate an available average to meet the required sum to support maintenance. Mr Pelly also lodged 4 files including CVs for Peter Hilton, Sarah Hilton, Paul Underdown, Bradley Rand, and Matt Bloom. I was also supplied with audit standards sample material from Jaguar Landrover, Mercedes Benz, Tesla, VWG and the car transporter specification. The bundle also included contract agreements and Sample invoicing, with Stansted Audi Sub-Contract Agreement and On Hire Limited SLA Supplier Agreement.

5. Summary of Evidence

Vehicles LN17 EHL and LN17 EHK were both observed on operation following the expiry of their respective annual tests on 31 October 2022. DVSA sought an explanation under cover dated 23 March 2023. In the response of 3 April 2023, the Director, Peter Hilton, suggested that the operator had a ‘full safety and service’ contract in place with Motus Commercials, but there had been staff changes. In other words, the planning of Preventative Maintenance Inspections, services, and annual tests was left to the maintenance contractor. The operator acknowledged that overall responsibility lies with the operator and that processes had been adopted to prevent recurrence. Annual tests had been scheduled for those two vehicles on 14 April 2023 and safety inspections were said to be up to date. 

The circumstances prompted DVSA to conduct a maintenance investigation in August 2023. The Vehicle Examiner, Mr Penny, attempted to contact Mr Hilton on several occasions to arrange the visit. The Examiner was eventually contacted by Simon Smith, Operations Director, to arrange the visit. 

The visit involved an assessment of maintenance systems only. There was no fleet check. Mr Penny engaged with Simon Smith and a Matthew Bloom, Compliance Manager. The Examiner commented:

“There is some doubt with the work the vehicle’s are undertaking collecting vehicles from customers and returning them after being repaired. Also stated at the time of the visit that some vehicles were able to be driven to the workshop for repair but are collected and returned which would mean the operator would need a SN licence.”

He noted that the Operating Centre consists of a mix of modern repair workshops and showroom offices with storage and parking within a gated yard.

However, the Examiner identified the following areas of concern:

5.1 Inspection / Maintenance Record

the maintenance provider is shown as in-house. New vehicles are under service/maintenance contract with Motus Truck and Van – Hatfield (Witham branch). Motus Truck and Van, was noted to use an electronic inspection form provided using Truckfile software. The inspection numbers and details differ from the pro-forma in the Guide to Maintaining Roadworthiness. They appeared to be a service sheet package used by the main dealer with ISO weeks not shown, brake performance readings recorded but no printouts attached and unladen and no indication which wheels had locked.

5.2 Planning

Reference was made to a manual diary, but no evidence was produced, so relies on the contractor to advise of inspections and annual test. The Vehicle Off-Road consisted of verbal instruction, with no record or other systems. Safety defect and recalls relied on the main dealer. The Preventative Maintenance Inspection records were not available at either Operating Centre or office and had to be obtained from the maintenance provider, but not all were available, with concern as to how the declared interval of 8 weeks was managed:

5.3 LN17 EHK

• Due ISO Week 04 carried out week 05 – 60 days.

• Due ISO week 13 carried out week 14 – 66 days.

• Due ISO week 23 carried out week 29 – 99 days.

• Preventative Maintenance Inspection on 7 October 2022 not signed off as roadworthy until 10 October 2022

• Preventative Maintenance Inspection on 30 January 2023 final sign off as roadworthy on 10 February 2023. Incorrect load rated tyres had been fitted to axles.

• Preventative Maintenance Inspection on 6 April 2023 and 19 July 2023 state wheels were not re-torqued.

5.4 LN17 EHL

• Due ISO week 28 carried out week 29 – 65 days.

• Due ISO week 15 carried out week 15 – 161 days.

• Preventative Maintenance Inspection on 18 May 2022 stated brake bind and no record of repair or second roller brake test: states resolved after check.

• Preventative Maintenance Inspection on 11 April 2023 – states wheels were not retorqued. Not signed off until 14 April 2023 as roadworthy.

5.5 LN65 LPX

• Due ISO week 17 carried out week 33 – 168 days.

• Due ISO week 51 carried out week 51 – 69 days.

• Due ISO week 07 carried out week 21 – 207 days.

• Preventative Maintenance Inspection on 5 March 2022 – not signed off as roadworthy until 8 March 2022

• Preventative Maintenance Inspection on 20 August 2022 – not signed off as roadworthy until 25 August 2022

• Preventative Maintenance Inspection on 15 October 2022 – not signed by inspector. Not signed off as roadworthy until 19 October 2022.

• Preventative Maintenance Inspection on 23 December 2022 Not signed off as roadworthy until 27 January 2023.

5.6 Driver Defect Reporting

Driver Luke Powell’s reports have no sections completed even when defects are recorded. Preventative Maintenance Inspection records show driver related defects with either ‘nil defect’ or no report. No quality assurance just reliant on driver CPD with no system for dealing with reported defect. Driver defect reports repeatedly record the same defect, without rectification.  

5.7 Wheel and Tyre Management

no wheel security system in place. Operator claimed that drivers checked wheel nuts with a calibrated torque wrench. Tyre company was contracted but no system in place for recording re-torque requirements, although wheel nut indicators are fitted. The Preventative Maintenace Inspection records suggest that it has fitted incorrect load rated tyres (which could lead to the tyre failure when laden).

5.8 Load Security

Ineffective load security management, with no records of checks for load and no formal training recorded.

The Examiner understandably questioned the standard of compliance management. Mr Smith responded. That was delayed for some reason. The responses did not suggest a grasp or understanding of the inspection format and maintenance records. The operator was under the impression that Motus was in full control of safety checks including recording of relevant information and referred to the service agreement. It now realises its responsibilities and intends to hold Motus to account for the shortcomings identified in the DVSA report, suggesting that Simon and Matthew would ensure maintenance checks and reporting going forward. The response admitted that they had not understood the deriver defect reporting requirement, thinking that Motus would deal with issues during safety inspections and confirm roadworthiness. They were unaware of the need to notify me of changes in maintenance. They now understand that they require a better grasp of what is going on. They were unable to explain missing annual test dates. Mr Smith was delegated this responsibility, but he departed in December 2023.The absence of annual test had not been recorded on any subsequent inspection record. The operator also has its own in-house Mecedes trained technicians, who carry out maintenance work on the vehicles, depending on the nature of the repair. The response admits an absence of reporting (log) of maintenance work. The operator has now established an internal job card process.

The operator relied on the experience of drivers. It was apparently unaware of its duties to management load security. They now realise that they must ensure the safe loading of vehicles and that staff are appropriately trained. As the business grew, they had failed to manage compliance. They, Simon and Matthew, were looking to be trained and to increase their knowledge. The experience had been an eye opener for the operator.

I was variously referred to documentation provided on behalf of the operator including Tachograph infringement and driving policies as applied to Drivers Joe Burnett, Luke Powell, Kevin Skinner, with Driver CPC bookings. (I contrasted the standard of driver defect report completed by Mr Powell against that of Mr Skinner). I saw evidence of attendance by Drivers Burnett, Powell and Skinner at a wheel torque, tyre check and inflation module on 15 March 2024 with Peninsular Logistics Ltd. I was also referred to a sample Driver Infringement Investigation Letter, the Staff handbook and Driver Infringement Report, Lead-In Reports, Overspeed Reports, Vehicle Unit Download Reports, and manual printouts to illustrate how the processes are implemented. Those three are full-time drivers and employed under PAYE. They were said to be skilled in loading and unloading the vehicles to be transported. I heard evidence about the app, which had been developed with the involvement of the drivers. It generates email reports, which are also copied to Mr Bloom and are quality assured by Mr Rand.

The operator accepted Mr Penny’s findings. His intervention followed the use of two of its three lorries without an annual test: LN17 EHK was due on 31 October 2022, delayed to 14 April 2023, and LN17 EHL due on 31 October 2022, delayed to 14 April 2023. LN65 LPX was tested on 27 January 2023, having been Off-road at the maintenance provider from 23 December 2023. The operator apologised for the shortcomings.

It was explained that from approximately 2012 Hilton’s HGV operation was run internally by a Simon Smith. He was not properly supervised by either Mr. Hilton or Mr. Underdown. The operator relied upon its maintenance provider (MOTUS) to notify when an annual test was due, but there was a breakdown in communication. I was referred to the resulting communications. Mr Hilton and Mr Underdown only learned of this on 23 March 2023 and assumed that there had been a mistake on the part of MOTUS. Mr Smith was instructed to clarify the situation. Mr Hilton’s response to DVSA was written by Paul Underdown. They were both aware of Mr Penny’s visit on 23 August 2023, but did not meet with him. They did not see his report until around 24 January 2024. Mr Smith apparently dissuaded Mr Hilton from earlier involvement and told him that the meeting with Mr Penny had gone well; ‘a few things’ needed to be put right but the meeting had been constructive. He did not tell Mr Hilton or Mr Underdown that Mr Penny had identified serious issues of non-compliance. Mr Hilton had little knowledge of the correspondence with Mr Penny. Mr Smith had emailed Matt Bloom and Paul Underdown on 13 November 2023. Serious misconduct then led to Mr Smith’s dismissal. Mr and Mrs Hilton felt seriously let down by him.

It was accepted that the operation was not run compliantly. Mr Smith’s failings were not identified. Mr Hilton believed that everything was in place as vehicles were purchased from new and serviced, maintained and safety inspected by a Mercedes main dealer. The transporter bodies were purchased from a specialist manufacturer. He understood that Mr Smith and the (“experienced and loyal”) drivers knew what was expected of them and he put no limits on the cost of compliance. A false sense of security apparently developed from the test history and lack of enforcement history. The drivers were said to be treated well. It was suggested that there was no reason for Mr Hilton or Mr Underdown to suspect that anything was seriously wrong. It is now acknowledged that the Directors should have been managing compliance through effective oversight. Following Mr Smith’s dismissal, Bradley Rand assumed the responsibility for running the HGV operation. Mr Rand reports to Mr Underdown and Mr Hilton.

The short, written statement from Peter Hilton, he acknowledged that there had been shortcomings in the approach to vehicles, drivers, and safety, for which he took full responsibility. He expressed shock that this had led to the Public Inquiry. I was told how the operator had been established in 1984 and developed on the basis of his love for classic car restoration, specialising in MGBs and TVRs. He started doing accident repairs for friends and others he met socially and by working hard, saved to buy a unit at Gold Business Park, Elsenham. The unit was used for a new spray booth and paint mixing room. They (2 of them) started working for a local Mercedes-Benz dealer and focussed as a manufacturer-registered body-shop, guaranteeing repairs to pre- accident conditions, using factory-trained technicians. The operator continues to work with dealer of “prestige brands”, repairing vehicles post-accident. As such the operator is the subject of annual audits by the relevant manufacturers, which includes staff training, tools, repair methods, and customer satisfaction. I was referred to the four 4 main customers. Vindis Group, Group1 Automotive, L&L Automotive, and Lookers Plc. The statement described how a ‘customer’ drops a car at a particular dealer site, collects a courtesy vehicle, and the operator then transports the customer vehicle to the body-shop, using a vehicle transporter, repairs it and then transports it back to the dealer for the customer to collect. The transporters were described as vital to the business as they enable the operator to move multiple vehicles safely and to serve a wider area.

These points were further developed in written representations from Mr Pelly. The contractual arrangements were said to demand a high level of compliance with a rigorous pre-approval process and annual auditing. I noted the reference to the ‘second accident’ standard. Accordingly, safety is at the heart of the operation and its reputation. I was referred to the above documents as evidence of the facilities, accreditations, audit standards and contract agreements.

Mr Penny usefully provided an update report based on the documents provided for the Public Inquiry. He referred to the following Preventative Maintenance Inspection records: LN65  LPX dated 9 October 2023, 19 December 2023, 16 February 2024 plus 23 December 2022; LN17 EHK dated 14  November 2023, 22 November 2023, 4 and 19 January 2024; LN17 EHL dated 16 January 2024, 13 and 20 February 2024, all completed by MOTUS and recorded on a 7 page Truck File service sheet. In evidence I heard that the confusing dates of those reports may have been caused by the Truckfile system updating the records when they were generated for the purposes of the Public Inquiry. Again, this suggested a lack of scrutiny.  Mr Penny observed, as I did, that those sheets do not refer to Inspection Manual numbers (TM instead). He found the format to be fragmented which does not align with the DVSA recognised standard format. Mr Rand told me of the action which he took and is reflected in the latest records. The records seen by Mr Penny referred to an in-house retorque procedure but are ticked to indicate that “no wheels removed”. Mr Penny was not supplied with details of the torque process or tools.

The Examiner observed that

5.9 for LN65 LPX:

• inspection dated 19 December 2023 exceeded the 56-day max period by 15 days but there was no record of the Vehicle having been Off-Road. The inspection dated 9 October 2023 was not signed off as roadworthy until 25 October 2023. That recorded driver detectable defects with oil level low (3ltrs required), EGR coolant leak and rough idle, with no discernible driver defect report.

• Inspection dated 19 December 2023 disclosed various driver detectable defects including low coolant, air leaks from equipment, catwalk bolts loose, off-side front step cracked, damaged fuel tank, window rim screws missing, again no discernible driver defect report. The inspection record refers to “Rear Brakes Drifting (needs to keep an eye on)” but signed off as roadworthy.

• inspection dated 16 February 2024 refers to various defects including driver detectable items with air leaks from equipment, daytime running light inoperative, off-side front step cracked (again), window trim screws missing, both sideguards taped up, fuel tank damaged again no discernible driver defect report. The inspection again concern refers to “Rear Brakes Drifting (needs to keep an eye on)” but signed off as roadworthy, but not until 19 February 2024.

5.10 LN17 EHK:

• inspection dated 14 November 2023 disclosed various defects: EGR coolant leak requires seal (just topped up), number plate surround insecure, defective marker lamps, nearside rear reflector and bracket missing, loose indicator lenses, oil leaks and key battery low warnings, with no discernible driver defect report applicable, and not signed off until 27 November 2023.

• inspection dated 22 November 2023 and 8 days after the last inspection (apparently now referencing the DVSA Inspection Manual numbers), shows various defects already identified with additional wiper surround damage and windscreen crack, but no discernible driver defect report. On this occasion there is no brake performance test attached. The inspection refers to the same readings as on the previous record (dated 14 November 2023).

• inspection dated 4 January 2024 (with brake test the day before) records low engine oil low (3 ltrs required), no rectification of the oil leaks and no discernible driver defect report. The record is not signed by the fitter.

• Inspection dated 19 February 2024 records low engine oil (again) and not rectified, both indicator lenses loose, and no discernible driver defect report. The oil leaks were apparently reported on 9 October 2023 to 14 November 2023 to Simon Smith and/or Brad Rand or Curtis Towell. The oil leak repair was not recorded until a Harlow Truck Centre invoice dated 3 February 2024 referring to a Rocker Cover Gasket replacement, but no sump gasket as identified on the inspections.

5.11 LN17 EHL –

• Inspection dated 16 January 2024 – refers to oil leaks, nearside bumper  panel adrift, uneven tyre wear & offside outer near wear limit also nearside inner deep cut with cords broken and visible. There was no discernible driver defect report. It also records that nearside brake pad linings have 11mm remaining so replaced. There is one brake test report, but not signed off as roadworthy until 25 January 2024.

• inspection dated 13 February 2024 (28 days from the previous) with similar defects including AdBlue/ emission faults, oil leaks, ABS valve fault, nearside brake problem, offside rear inner and outer tyres near wear limit, but no discernible driver defect report. Mr Penny noted the S&B brake report dated 19 February 2024 after the inspection, but the figures did not match those in the inspection record and the record was not signed off 19 February 2024

• inspection dated 20 February 2024 (7 days from the previous but the mileage is reduced) records oil leaks, bonnet stay rusty, driver’s seat belt buckle not releasing properly, driver’s door seal split, rear axle offside and nearside inner tyres showing uneven wear but no discernible driver defect report. It also records that the rear axle and DPF require maintenance. He referred to the brake report dated 31 October 2023 showing the same readings. I heard evidence that there had been a recording issue.

The defect spread sheets require True or False entries. All those on LN17 EHL show True but then lists defects. The driver did identify ‘False’ for the cam cover gasket, but other driver defects recorded on the inspection were not reported. The defect sheet for LN65 LPX shows ‘False’ for warning lamps but no defect in the applicable section. Several entries on the defect spread sheet referred to an obligatory reflector missing. Defect sheets were not signed. The register only records who the defects were reported to. The Examiner expressed concern that the driver defect reporting system was not working, suggesting that it had not been audited. On wheel security, Mr Penny confirmed the logbook used for LN17 EHL. The STS/Central Tyre work sheet only records the torque setting used but not the equipment used. Confusingly, the Motus contract plan refers to two different inspection intervals of 56 and 42. Mr Cottenden told me this was an error by MOTUS. As identified above, the declared interval is 56 days. Mr Rand was said to be in charge of scheduling. Mr Penny advised of the need to improve forward planning and to ensure that they work to one schedule, with reference to week numbers. It was unclear how the planner operates or who manages it, with only service contract schedules and no signed contract for either contractor.

Mr Cottenden provided a commentary dated 16 March 2024, in which he confirmed that MOTUS had adopted inspection pro-forma with correct Inspection Manual references. He had not been able to confirm but was assured that the torque wrench and equipment had been properly calibrated. This was presented during the hearing. He confirmed that the Preventative Maintenance Inspection of LN65 LPXwas15 days late in being signed-off, due to a gear box issue. The vehicle was treated as VOR. He suggests that drivers would not be expected to access the oil dipstick on this vehicle or LN17 EHK, as it is located under the cab, with relevance to rough idling, when cold. I was told that a reduction of 25% would not show on the dashboard. Whilst accepting that defects listed on 9 December 2023 and 16 February 2024 should have been identified by drivers, he argued that damage to the fuel tank which had been present for 3 years was not notable. The inspection on 19 December 2023 records this as a dent but requires risk management. I accepted the explanation in respect of rear brakes drifting, but it further illustrated the need for increased recording or annotation. That was again confirmed by the lack of detail regarding the oil leak identified by Driver Skinner. Mr Cottenden identifies the challenge in drivers inspecting the inner tyres, but that also confirms the need to ensure evidence of inspection by the tyre contractors.

6. Determination

6.1 Type of Licence

Written representations of 12 March 2024 suggested that the operator was “willing and able to do whatever is needed in order to operate its lorries lawfully”. It was suggested that until the call up letter of 24 January 2024, Mr. Penny was the only person to have questioned the appropriateness of a Restricted operator’s licence. The operator’s understanding was that this referred to the growth of the business. It was suggested that the use of the licence was either lawful or inadvertent. As I made clear during the hearing, if there were evidence that its use was a deliberate attempt to circumvent the jurisdiction, the operator would have experienced a very different style of Public Inquiry.

I accepted that the operator acted on advice in applying for its licence. The Statutory Document explicitly refers to the position presented by the Upper Tribunal’s decision in 2020/020 Parker Body Repairs Ltd, i.e. after the application date. This licence followed an earlier partnership licence.  It is hoped that the appellate decision has now put to bed the common misconception or ‘shorthand’ regarding the ownership of goods. As the Senior Traffic Commissioner has explained, that is but one element in determining the correct form of licence. That reflects section 3. 

It is perhaps ironic that the operator sought to rely on paragraph 6 of the Preamble to retained Regulation (EC) 1071/2009, as those provisions relate to standard operations. The Senior Traffic Commissioner also refers to the interests of fair competition, which require the common rules to be applied as widely as possible to all transport undertakings. Great Britain enjoys additional provisions relating to restricted operations. It was argued that it would have only a small impact on the transport market to allow this operator to continue to operate under a Restricted operator’s licence. That is not how the provisions should be read, particularly where Parliament has made provision in section 4 of the Act.

The way in which the legal principles might be applied are set out the Senior Traffic Commissioner’s Statutory Document No. 0. It was accepted that the transport is an ancillary part of the overall service. I heard that Mr Hilton had been open regarding the business model and in the period of expansion since July 2010. It does not apparently rely on any additional insurance of the goods despite the value of the branded vehicles but does hold a separate goods in transit policy to cover any damage or loss to those vehicles. I am unclear how that insurance policy will now extend to this operation or whether the insurer has been notified of the Upper Tribunal’s decision.

The facts of this case were almost on all fours, with both operators engaged in recovery operations and, the vehicles having been repaired, use an HGV to deliver repaired vehicles back to customers. The Upper Tribunal concluded that, having been repaired, the delivery of the vehicles was not part of the recovery operation. Mr Pelly referred to the Upper Tribunals’ reasoning in full but then attempted to reargue how section 3(3) should be read, i.e. in a manner advantageous his client. The way in which the Upper Tribunal included reference to payment for a service can leave little doubt as to application to the facts of this case.   

Arguments that payment is made in respect of the repair work (and are not affected by the subsequent transport) did not assist this operator. This operator accepted that its charges for vehicle repairs including an element to cover the transport of the vehicle on return and after its repair. Attempts by PSV operators to argue that payments to cover overheads did not amount to a reward, have failed in no uncertain terms.

The submissions questioned whether the decision in Parker Body Repairs was right. It is not for a first instance decision to review an appellate decision, particularly where it is difficult to distinguish the case on either facts or law. An important point which is often overlooked, even by the Upper Tribunal when considering the test laid down by the Court of Appeal in Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport [2010] WECA Civ. 695 is that section 4(4) of the Public Passenger Vehicles Act 1981 and section 1(2) of the Goods Vehicles (Licensing of Operators) Act 1995 requires that traffic commissioners to act under general directions of the Senior Traffic Commissioner and, in contrast, that they shall have regard to any guidance issued by the holder of that office. If a Traffic Commissioner complies with those provisions, it is difficult to see how that individual Traffic Commissioner can be said to be plainly wrong on the application of the relevant law.

This issue has already been litigated before the Upper Tribunal and for the reasons set out in that appellate decision, I determined that a standard operator’s licence is required for this type of operation. I therefore recorded that there had been a material change under section 26(1)(h).

6.2 Further findings

The findings of Mr Penny were not disputed. I therefore recorded adverse decisions under the following sections: 26(1)(b) – conditions on licence to notify changes, in this case relating to maintenance, 26(1)(e) – statements relating to maintenance and inspection intervals, and to abide by conditions on the licence, 26(1)(f) – undertakings (vehicle to be kept fit and serviceable, driver defect reporting, complete maintenance records).

The Upper Tribunal decision in 2023/255 Kevin Roy Greggs t/a KDP Skips and Waste Removal may have caused some confusion as to how the question posed in 2009/225 Priority Freight might be applied. It benefitted this operator to follow the established approach suggested by the Upper Tribunal in 2013/007 Redsky Wholesalers Ltd and 2018/010 Ingram t/a T.I.P. Skips have preferred to approach. I therefore posed the question – how likely is the operator to comply in future.

I heard evidence from Mr Hilton. The realisation that the Directors had failed to exercise oversight was evident. Mr Smith had been allowed to assume a leading role in the business without sufficient checks. Even the letter from DVSA of 23 March 2023 was not enough to wake them up. They were content to allow Mr Smith top deal with the Maintenance Investigation when Mr Penny visited on 23 August 2023. The fact that the Directors were unaware of any issues does not represent good governance and should act as a warning to all Directors of the need to implement key performance indicators which reflect the requirements of the operator’s licence. He referred to some of the control measures now employed: Mr Cottenden checks the vehicles and records, driver defect reports are cross-references with additional gate checks taking place, the planner processes introduced by Mr Rand with computer and wall planner and the use of Truckfile to book inspections, individual truck records and driver files, the driver defect reporting app, and a technician on site to deal with immediate repairs. Mr Hilton was visibly disappointed by what I heard. He described the operator being in the business of health and safety: the failings were “not what we are about”.  There is a weekly meeting with Heads of Department on a Monday, following which he and Mr Underdown meet with Mr Rand to scrutinise licence compliance. The need to update and review the operations was further illustrated by the admissions regarding use of a minibus to transport members of staff into work without a PSV operator’s licence.

I was referred to the efforts made since the call up letter and the costs incurred. The benefits of proactive compliance should never be under-estimated. Legal advice had been obtained and Mr Cottenden was retained. I heard from him briefly.  A contract for services was yet to be completed and an application lodged for a standard national licence. Mr Hilton, Mr Underdown and Mr Rand all attended OLAT courses and Mr Rand is booked to undertake Transport Manager training and to then sit the exam. Mr Cottenden has provided training to the drivers on walk round checks, safe loading and drivers’ hours and record keeping. He described them as having varying degrees of experience but were keen to learn and adapt.  I had the benefit of hearing from Mr Rand at the hearing. He confirmed that maintenance, driver defect reporting, emissions, and load security were now the subject of management scrutiny. I heard that MOTUS has test weights or the operator will load the vehicles for the purposes of brake testing, as evidenced by the recent reports.

Drivers now download their digital driver cards daily and vehicle units are now downloaded weekly. The maintenance contract with MOTUS has been updated on advice from DVSA and to reflect the current Guide to Maintaining Roadworthiness. A second contractor has been retained as a contingency (Harlow Trucks Centre Ltd). MOTUS etc will therefore provide Preventative Maintenance Inspection records in the correct format. I was assured that inspections and brake tests are in order. I was referred to the report prepared by Mr Cottenden. He described the engagement of Mr Hilton and Mr Underdown and offered his opinion on Mr Rand and his abilities. That had stopped by the date of the Public Inquiry. Mr Cottenden was impressed by Mr Rand’s approach and by the willingness of the operator to change. I accepted an undertaking for every driver to be individually trained in load security within 12 weeks of the date of the hearing.

That said, it was accepted that the two missed annual tests and subsequent DVSA findings would point to a starting point of at least ‘SERIOUS’ by reference to the Senior Traffic Commissioner’s Statutory Document 10.  Even taking the positives (identified above) into account, I found there to be a need to take deterrent action to make clear top this operator and others, that Directors must ensure that licence requirements are met. There can be no repeat of these shortcomings.

I took account of the fact that this a specialist transport operation relying on trained drivers and specific vehicles. They are not used every day but that also attracts risks, which need to be managed. At least one of the lorries was used on most days of the week (Monday – Friday). The operator’s licence is an integral part of the business. It is a great pity that this was not reflected in the Directors’ care for such a valuable asset. I took account of the progress made to date, with compliance systems and Director involvement now in place, but I was satisfied of the need to take deterrent action so that there can be no doubt of the consequences were the Directors to lose sight of this in future.

6.3 Order

I accepted that the use of a restricted licence was inadvertent, although also symptomatic of a false sense of security and a lack of attention to detail. I made clear that parts of this operation could not continue under a restricted licence. That service is integral to the business model. Whilst I revoked the operator’s licence due to a change in operations, under section 26(1)(h), I set a date to allow an application to be pursued. The operator had sought an interim standard operator’s licence, but that was not before me. The operator has already entered into an agreement with Mr Cottenden in the hope that Mr Rand might gain his CPC following examinations due to take place after training on 15-26 April 2024. As an applicant, it will still need to address the requirements of Schedule 3 and in particular paragraph 14A(1)(d). I noted that Mr Hilton has asked Mr Cottenden to audit, advise and train. This licence will be revoked from 23:45 on 10 June 2024. In the meantime, I was persuaded to allow a temporary exemption under section 4 from the requirement to hold a standard licence, due to the specialist nature of these operations and the matters outlined above.

R Turfitt
Traffic Commissioner

18 March 2024