Decision

Decision for Jeffrey Lawrence Dyer & Peter Richard Blois t/a L D Transport (OF0099970)

Published 18 December 2020

In the Eastern Traffic Area

Confirmation of the Traffic Commissioner’s Decision

1. Background

Jeffrey Lawrence Dyer and Peter Richard Blois together hold a Standard National Goods Vehicle Operator’s Licence authorising 4 vehicles only. The Transport Manager is Sally Ann Taylor, who was appointed on 7 January 2020. She was not called to this hearing.

There is one Operating Centre at Unit W1/W2 Tickfield Industrial Estate, Tickfield Avenue, Southend-on-Sea SS2 6LL. There is one declared contractor showing on the licensing record: Hockley Repairs, undertaking Preventative Maintenance Inspections of vehicles at 6-weekly intervals. In evidence it became clear that most of the inspections were undertaken by Mr Blois himself. He told me that this had been the case for around two years but my office was never informed.

DVSA wrote to the operator on 5 November 2019 seeking cooperation with a remote assessment of the maintenance arrangements. A follow-up letter was sent on 29 November 2019. Due to the operator’s failure to respond, the operator was referred to my office.

The potential consequences of a failure were explained in correspondence dated 13 December 2019. In reply, Mr Dyer claimed that the emails sent by DVSA had not been received. He referred to a telephone conversation with the DVSA office and said that he was awaiting instructions as to which documents were required.

The position of the operator was reviewed at a Preliminary Hearing on 11 February 2020 before Deputy Traffic Commissioner, Ms Davis (page 38). She directed that the Transport Manager and Operator needed to address the following as soon as possible:

• Preventative Maintenance Inspection (PMI) sheets need to be checked and properly signed off;
• Roller brake or calibrated brake testing must occur at every PMI;
• Reference to the Guide to Maintaining Roadworthiness to ensure full compliance.

She accepted an undertaking for the partners to complete a 3-day introduction to Operator Licence and Compliance course by 30 April 2020, with certificates of attendance to be lodged with the OTC within 14 days. On that basis she issued a formal warning.

2. Hearing

The Public Inquiry was listed for today, 16 November 2020, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was present in the form of Mr Blois alone.

3. 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:

• Section 26(1)(b) - condition to notify change in events which affect good repute and financial standing;
• Section 26(1)(f) - licence undertaking;
• Section 26(1)(h) - material change;
• Section 27(1)(a) - repute and financial standing;
• Section 28 - disqualification.

In an email dated 12 November 2020, the operator was reminded of the clear guidance in the call up letter and advised that the photographs submitted by email at 2.30 pm that day would not be admissible evidence as to the availability of finance. The operator was requested to supply original evidence. The partial photocopies included in the operator bundle appeared to be annotated summaries. Full statements were finally produced at the Public Inquiry.

4. Summary of Evidence

The failure to submit the proof of attendance at training was not noticed by staff in the OTC until it was followed up in email communications dated 22 July 2020 (page 40). There was no response and as a result, a further proposal to revoke was sent on 9 September 2020 (page 41).

A consultant, Terry Hattle, responded on behalf of the partners under cover of a letter dated 18 September 2020. Mr Hattle indicated that both Mr Dyer and Mr Blois had been required to shield during the pandemic.

Government Guidance provides the definition of clinically extremely vulnerable groups who are at very high risk of severe illness from coronavirus. This was generally communicated in writing by a clinician or General Practitioner. New measures were introduced from 1 August 2020. I have now seen a certificate completed by a Dr N K Shah of the North Avenue Surgery in Southend on Sea, dated 17 September 2020, in respect of Mr Dyer, which confirms that he would have fallen within that advice.

Mr Hattle communicated Mr Dyer’s claim that he made contact with OTC in April 2020 by telephone to explain why they were unable to comply with the undertaking. He was unable to remember who he spoke to and there was no email communication. The operator requested a public inquiry. Mr Dyer did not attend nor did he supply a statement or response to the concerns clearly expressed in the Case Summary; unfortunately for Mr Dyer, DVSA closed the tribunal facilities and sent all OTC staff home from 18 March 2020. There was no-one manning the telephones during April 2020. There is no record on the licensing system to indicate any contact with this operator. OTC gave clear and public guidance that the staff would receive electronic communications during that period.

Certificates of attendance at the training promised to the Deputy Traffic Commissioner were eventually lodged on 12 October 2020 but the circumstances clearly undermined the trust, which was placed in the operators. The operator’s bundle contained a certificate of attendance by Mr Blois at OLAT dated 12 October 2020. At the Public Inquiry I saw a certificate issued to Mr Dyer confirming he had attended training delivered by Mr Hattle on 27 September, 3 and 4 October 2020. He felt unable to attend this hearing.

Had the training been attended as promised, it might have avoided some of the issues now evident from the maintenance documentation. I refer to the records in respect of L448 RJN. For some reason there is no record of any check of the brakes at the inspection on 4 October 2020. The vehicle was not signed off as roadworthy. The previous inspection on 29 August 2020 relied on a road test. Again, the roadworthiness declaration was not completed. There was no brake check on 14 July 2020, despite there having been a 12-week gap since the previous inspection on 21 April 2020, which consisted of a road test but not signed off. There was a nil driver report from Mr Blois that day, but the inspection record refers to wiper damage. The analogue tachographs produced suggest that recorded time is allowed before the vehicle moves off. The record for 2 March 2020 suggests that there was no inspection due to lock down, which commenced on 23 March 2020 but the driver records 3, 6, 17, 19, 31 March and 8 April, with tachographs for 3, 6, 17, 19, 30, 31 March and 8 April. The odometer readings were as follows:

• 25 January 2020 051379
• 21 April 2020 051596 DDR 5 May records 051570
• 4 July 2020 051834 DDR 31 July records 051689
• 29 August 2020 051834
• 4 October 2020 051950

The operator appears to have had brake checks on T992 JAW but not L448 RJN. The inspection for 29 September 2020 did not record a test but attached was a print-out indicating a pass on a rolling road on 1 October 2020. The PMI also identified driver detectable defects but there was only a nil driver report the day before. The vehicle was signed off as roadworthy, with a stamp from Hockley repairs. None of the other inspections are signed off or stamped in that way. The inspection on 29 August records a brake test on 24 September 2020 but the percentage efficiency was below that of a pass on the service brake There was a road test on 18 May 2020 after the intervals were exceeded by 8 weeks. The records suggest that the inspection was not carried out on 4 April 2020 due to lock down restrictions but the driver records 23, 24 March, and 2 April, with tachographs for 23, 24 March, 1 and 2 April. I am unclear whether there was an inspection on 26 February 2020 as the form is incomplete. The odometer readings were as follows:

• 26 February 2020 456091
• 18 May 2020 456610
• 29 August 2020 456992 DDR 28 August records 457084
• 29 September 2020 547329 DDR 6 October records 457243

Mr Blois was unable to confirm when the operation had ceased. He indicated that occasional operations had continued during the period of lock-down, but he thought that there had been a relaxation of the requirements. He could point to no apparent source but referred to a relaxation of annual testing. I refer to the Response to Covid 19 – Operator Licensing, Local Bus Service Registration and Vocational Driver Conduct - Advice for Operators issued on behalf of Traffic Commissioners at the start of the initial lock down and updated during that period. Question 6 refers: I cannot maintain my vehicles in line with the stated intervals that I made a commitment to:

You should never operate a vehicle in an unsafe condition. You should adopt a risk-based approach as you should know your business and where the greatest risks may be. Maintenance intervals can exceptionally and in limited situations, be extended in line with the principles set out below.

These principles only apply to standard licence holders (in any sector) or to restricted licence holders carrying out essential transport services involved in the delivery of food, non-food (personal care and household paper and cleaning), door to door refuse collection and disposal services, health services and over the counter pharmaceuticals, Fuel (transport and heating) or essential utility services (water, gas, electricity, telecommunications, road maintenance, etc) where their normal maintenance arrangements are affected by Covid-19. Where the concession is used, robust daily driver checks and effective use of vehicle monitoring systems are even more important. The principles are as follows:

• PMI intervals can be extended by up to 50% with a maximum of 17 weeks, whichever is the lesser, if it’s not possible to obtain the PMI under the normal inspection arrangements. This needs to take in to account whether any monitored defects were reported on the previous safety inspection.

• There is no need for a fresh maintenance contract but operators should update their licence records online. Use the box provided for the maintenance suppliers address briefly to record the temporary arrangements. You can access your records here: https://www.gov.uk/manage-vehicle-operator-licence

• Evidence of the justification for the reduction such as a letter or email from your workshop confirming unavailability is to be kept with the PMIs and to be produced on request to OTC/DVSA/police, etc.

• Where the workshop facility is unavailable, consider using mobile inspections at operating centres. The inspection would need to be as full as possible and comply with the site’s health and safety requirements. An instrumented brake test should still be conducted.

• DVSA has indicated that Examiners will not take enforcement action for vehicles operated with ‘in-service reported’ non-safety critical minor and major defects, where either parts or workshops are unavailable. This does not include using a vehicle or trailer with and any dangerous defects. Operators would need to keep evidence on the maintenance file where repairs have needed to be deferred due to these exceptional circumstances. The judgement of whether or not the vehicle is allowed to stay in service should be made by a suitably qualified technician. Guidance on the definition of minor, major and serious can be found in the DVSA HGV and PSV Inspection Manuals.

• DVSA has also indicated that it will temporarily suspend delayed prohibition action; the defects will be reported on an inspection notice and the operator must keep on the maintenance file evidence that the defects have been rectified in a timely manner.

• Where prohibitions are issued, depending on the nature of the defect, DVSA may be able to remove the prohibition by electronic submission of a fresh preventative maintenance inspection report and evidence that the defects have been repaired.

However, as confirmed in evidence, Mr Blois could have carried out and recorded an inspection.

I was left asking how Ms Taylor had permitted this situation to develop. It then became clear that her visits to the OC on a Saturday morning had become more infrequent and were limited to occasions when she visited her elderly parents. Ms Taylor is apparently paid in cash. She was not present to answer my questions, but I was left in real doubt as to the standard of management employed. Mr Blois accepted much of the blame but the issues with the maintenance documentation were obvious. There has been no apparent improvement since nor has there been any apparent effort to implement the strong direction given by the Deputy Traffic Commissioner. All has carried on as before, with no notification to the Office of the Traffic Commissioner.

5. Deliberation

I am satisfied to the civil standard of proof that there has been a repeated failure to notify me of relevant changes over a number of years, which necessitate adverse findings under sections 26(1)(b) and (h). The failure following the appearance before the Deputy Traffic Commissioner goes beyond just the failure to comply with an undertaking under section 26(1)(f) and goes to the very management of compliance.

I have attempted to identify those positives, such as the time spent and recorded on the driver walk round, but beyond the frank acceptance of his shortcomings by Mr Blois, there is limited other to mitigate findings of persistent offending, ineffective management control and insufficient systems and procedures to prevent compliance failings, and a failure by Mr Dyer to be open and frank with me, even after the previous intervention by the Deputy Traffic Commissioner. My starting point places this case in the Serious to Severe category.

As the appellate Tribunal explained in 2006/277 Fenlon: trust is one of the foundation stones of operator licensing. Traffic Commissioners must be able to trust operators to comply with all the relevant laws, rules and regulations because it would be a physical and financial impossibility to police every aspect of the licensing system all day and every day. Paragraph 58 of Statutory Document No. 1 on repute and fitness explains the seriousness of the situation by reference to appellate case law, including 2002/009 George Gollop & Direct Movement Services Ltd: Any attempt to deceive a traffic commissioner is serious conduct that cannot be condoned…. Similarly, operators who deliberately deceive and present false evidence to traffic commissioners, either in correspondence or at public inquiry, are also liable to prosecution through the criminal courts and are likely in serious cases to receive a custodial sentence.

I have taken account of the difficult trading environment for removal companies, but this operator must meet the same standards that other similar operators strive to meet even during the pandemic. I referred Mr Blois to the advice and guidance issued by traffic commissioners to assist operators. However, paragraph 70 of the Contingency Statutory Document puts operators on notice of the negative impact where Traffic Commissioners find, amongst other issues:

• use of coronavirus as a device to evade specific operator’s licence requirements and undertakings, without first notifying the Office of the Traffic Commissioner;
• lack of metred brake performance testing for vehicles in use during the coronavirus restrictions;
• failure to complete an effective first-use inspection or equivalent in accordance with the coronavirus maintenance guidance.

All of the issues go directly to the question suggested by the Upper Tribunal in 2009/225 Priority Freight: how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime? My trust in the partners has been seriously undermined. The decision of Ms Taylor not to attend leaves serious questions about the value of her involvement. I stress that she was not called in her own right, but this did not prevent her making submissions. The circumstances described here will be relevant to any future consideration of her ability to meet the statutory duty.

In all those circumstances, I cannot reach a positive conclusion. Mr Blois offered me the same promises which the operator had failed to deliver on. My trust has been so eroded that the only real conclusion is for the operator to be removed from the industry, with a loss of repute under section 27(1)(a). I listened carefully to Mr Blois’ description of work commitments, although the market is difficult to predict. I have set a revocation date, which takes that and the festive period into account – 23:45 on 4 January 2021. Mr Dyer has 14 days to make representations as to why I should not disqualify him under section 28.

Richard Turfitt

Traffic Commissioner

16/11/2020