Decision

Decision for Jordan Wormall (PF2041375) and as Transport Manager

Published 3 April 2023

0.1 In the Eastern Traffic Area

1. Written Decision of the Traffic Commissioner

1.1 Jordan Wormall (PF2041375) and as Transport Manager.

2. Background

Jordan Wormall holds a Standard National Public Service Vehicle Operator’s Licence authorising 5 vehicles. Mr Wormall has acted as his own Transport Manager since grant.

There is one Operating Centre at The Compound, Old Wharf Road, Grantham NG31 7AA. Preventative Maintenance Inspections are said to be carried out by Liam Wormall (in-house), Paul Burgoine (in-house), Colas Ltd, and Ian Mansell at A C Williams Coaches at 6-weekly intervals.

The licence is subject to restrictions on the type of vehicle to be operated.

3. Hearing

The Public Inquiry was listed for today, 22 March 2023, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. Jordan Wormall was present.

4. Issues

The public inquiry was called at the request of the operators and following notice that I was considering grounds to intervene in respect of this licence and specifically by reference to the following sections of the Public Passenger Vehicles Act 1981:

• 17(3)(aa) – undertakings (vehicle to be kept fit and serviceable, driver defect reporting, complete maintenance records)
• 17(3)(c) – prohibitions
• 17(3)(e) – material change:
• 17(1)(a) – repute, financial standing, and professional competence
• 28 of the Transport Act – Disqualification.

Mr Wormall was called separately to consider her repute as Transport Manager, by reference to the statutory duty to exercise effective and continuous management – section 17(1)(b), Schedule 3, and to consider whether I should make a direction in respect of his Certificate of Professional Competence.

The operator was directed to lodge evidence in support by 8 March 2023, including financial, maintenance and other compliance documentation. The financial evidence submitted in advance was described as an on-line copy. That suggested sufficient funds to meet the mandatory requirement for financial standing but that could not be proved. The operator failed to provide original or verified statements in an admissible form, despite the instruction in the call up letter dated 15 February 2023. I noted references to the payment of wages but also to bill payments. It was confirmed in evidence that two drivers hold themselves out as self-employed: Driver Murphy (whose wife is paid because he does not have a bank account, and the operator’s brother, Martin.

5. Summary of Evidence

The operator was issued with a Prohibition Notice as part of a roadside encounter on 3 February 2022, when vehicle X7 FFC was stopped during a routine school drop-off. The issuing Examiner found that the brake load safety valve had seized (page 102).

That prompted DVSA to commence an investigation on 23 February 2022. The Vehicle Examiner, Marcus Barstow, conducted a fleet check, resulting in a further two delayed Prohibition Notices. Vehicle CV69 DWK was found to have an engine light displaying a fault, and vehicle MV12 0DX had a defective seatbelt, as well as a faulty engine light. His report also refers to a failure to implement a system in place to monitor individual usage of ad blue. Mr Barstow was concerned that the last three Preventative Maintenance Inspections had failed prevent prohibitions being issued.

At page 36, Mr Barstow noted that some inspection records were not signed-off to show the vehicle as roadworthy. He noted that only one record was produced for X7 FFC. The planner did not include tachograph calibration dates. There was no evidence of safety defect/recall checks, but the operator said he was aware. The Examiner found weaknesses in the Vehicle off-road process. Mr Barstow commented that the driver defect reporting system relied on individual reports but he concluded that it was not working effectively with only four reports submitted during a 15 month period and those only related to bulbs.

Mr Barstow supplied his findings to the operator on 23 February 2022, to which the operator responded on 8 March 2022 (page 49). The response apologised for some of the deficiencies and sought to provide explanations and to address future compliance. He indicated that Ford had advised him that it was permissible to use the vehicles even though the engine light was illuminated, whilst the part was ordered, under warranty. He acknowledged that the defect should have been recorded. The ABS light was reported to the workshop in the defect book. Further driver training had been organised in response to the defective seatbelt. He gave assurances that inspections would be conducted at six weeks, without fail. Adblue would be checked at the same time utilising a new process for monitoring and recording. Specific assurances included improvements to inspection and maintenance recording, with inspection intervals managed and monitored. The response referred to a system to record safety related defects, and to future driver training. The operator apparently disputed the fault which led to the index Prohibition Notice. It was claimed that the control valve worked when the vehicle was returned to the in-house workshop. The operator referred to the involvement of a transport consultant to review the processes going forward.

The Vehicle Examiner was assured by the response and noted the plans to implement more stringent control measures. A response supplied via the Traffic Examiner appeared to refer to a different operator.

The Traffic Examiner, Leon Jackson, completed a report (page 73) dated 3 March 2022 which identified:

• ineffective system to monitor drivers’ hours.

• failure to retain Working Time Directive records.

• calibration dates not added to wall planner (as above).

Mr Jackson indicated that, whilst the operator appeared to have policies and procedures in place, they had not been updated. However, he recorded improvements on his second visit on 2 March 2022. He conducted a further visit on 30 September 2022, with a further report dated 10 October 2022 (page 88). That records further improvement but also highlighted issues arising from use of the mode switch and that driver rest periods were not being complied with. Drivers were due to attend training that month. He was also due to attend Transport Manager professional development training.

In evidence I heard that the operator relies on the Tachomaster system, with reports considered by Mr Wormall and Mr Gore, the transport consultant. The operator was alerted to the difficulty in disciplining or controlling non-employee drivers.

Due to the nature of prohibitable defects, many of which should have been obvious to the driver, such as the warning lights, and defective door, the fact that the seized load-sensor was identified by the ABS warning, it was determined to review those untested promises at Public Inquiry. I was therefore interested to consider the compliance documentation lodged in advance of the hearing. I noted the schedule prepared by Operator Licence Assist Ltd (Ricky Gore) and the photograph of a wall planner. Vehicles off road are apparently recorded on a white board. The brake tests reflect an absence of secondary braking devices on the Sprinters. I and made the following observations from my dip sampling:

5.1 CV69 DWK - the inspection pro-forma date from 2013

• 2 March 2023 – inspection with brake test: 80% and 40% only, but brake pads appear to have been fitted after the brake test. The screen washers were topped up.

• 19 January 2023 – inspection with brake test: 85% and 47% only. It also records defective passenger seat (the driver was apparently given a verbal warning), missing first aid sign, with no tachograph roll (but stored in another part of the vehicle) and the screen washer to be topped up. A defect report had been returned on 5 January 2023.

• 15 December 2022 – inspection with brake check: 56% and 26% only. It also records rear dot codes (advisory following a change of tyres by Tanvies) and defective number plate bulbs (soiled casings). A defect report was returned on 23 November 2022.

• 7 November 2022 – inspection with brake test: 63% and 25% only and after repair of pads 70 and 75% worn.

• 29 September 2022 – inspection with brake test: 69% and 27% only, presumably after the rear pads were addressed. It also records defective tyres and was booked into Tanvies for the following day. There was a driver defect report from 28 September 2022.

• 18 August 2022 – inspection with brake test: 68% and 28% only. It also advises monitoring tyres.

5.2 YJ64 HFG DWK - the inspection pro-forma date from 2013 or 2026 on 17 July 2022.

• 16 February 2023 – inspection with brake test: 64% and 36% only after the pad warning light was illuminated.

• 5 January 2023 – inspection with brake test: 66% and 38% only. It also records a defective washer – not reported.

• 22 November 2022 – inspection with brake test two days later: 63% and 32% only. It also refers to the handbrake with discs and pads cracked.

• 12 October 2022 – inspection with brake test: 74% and 43% only (on separate sheets). It records a crack in a window but no discernible driver defect report, bit no further detail was recorded.

• 31 August 2022 – inspection with brake test: 84% and 49% only after a brake pipe leak. It also records a defective seat and fog light with no discernible driver defect report. PUT

• 19 July 2022 – inspection with brake test: 79% and 41% only after discs worn. It also records the screen as cracked, mirror case damaged and defective wiper blades with no discernible driver defect report. PUT

The driver defect reports are apparently stored in equivalent vehicle files. The operator was alerted to concerns over the aged standards being applied. He was under the impression that Mr Gore had identified this shortly after the DVSA visit. I referred to the recent inspection above, apparently conducted by A C Williams Coaches. Going forwards the inspections need to be against up-to-date standards and stamped by the relevant contractor. The licence record will be updated to show inspections being completed at AC Williams Coaches or alternatively in-house. AC Williams Coaches has its own roller brake tester.

6. Determination

In 2019/54 Bridgestep Ltd & Tom Bridge, the Upper Tribunal referred to the practice of drivers classify themselves as self-employed. The Tribunal commented that the legitimacy or otherwise of a driver’s self-employment status is fact specific but referred to HMRC guidelines. The Upper Tribunal referred to a conscious decision to enter into an arrangement with the company’s drivers which was highly questionable if not a sham. The reasons for doing so were anti-competitive being as they were, concerned solely with the cost of employing the drivers and by reducing that cost, gaining a competitive advantage over other compliant operators. The Tribunal went on to describe the vast majority of operators making the right decision to employ their drivers, paying national insurance, pension contributions, holiday and sickness entitlement. The consequence in that case was that the company and Transport Manager felt unable to give any instruction to drivers whether it be in relation to route planning or otherwise and consequently, were unable to have continuous and effective management of the transport operation. In the period of driver shortages, it might also result in an unfair competitive advantage.

Based on the evidence summarised above, I was satisfied that I should make adverse findings under the following sections: 17(3)(aa) – undertakings (vehicle to be kept fit and serviceable, driver defect reporting, complete maintenance records), 17(3)(c) – prohibitions, 17(3)(e) – material change by reference to 17(1)(a) – financial standing. I referred to the copy documents and was able to grant a Period of Grace to show financial standing by 31 July 2023. That financial evidence should also show that drivers are now employed and therefore under the control of the operator/Transport Manager.

It was accepted that those findings did not amount to effective or continuous management by the Transport Manager. His repute was therefore tarnished by that failure.

The operator is involved in the provision of home to school services for Lincolnshire County Council, which was aware of his attendance at the hearing. He also undertakes work for the Cromwell Housing Association through the Home Office. In both cases he is responsible for vulnerable persons. He was warned that this was a final opportunity to resolve matters outstanding from the DVSA investigations. I weighed the following additional undertakings into the balance:

• All regular drivers will be made employees of the operator within two months of the date of this hearing, so that National Insurance and PAYE can be deducted at source from 30 April 2023.

• The operator to supply a full compliance audit undertaken by a trade association (RHA/BAR/CPT) or other suitable, independent body to assess the systems for complying with the operator licence requirements, and the effectiveness with which those systems are implemented, to cover the applicable elements in the annex to be supplied by the Office of the Traffic Commissioner. A copy of the audit report, together with the operator’s detailed proposals for implementing the report’s recommendations, must be sent to the Office of the Traffic Commissioner in Cambridge by 29 September 2023.

The operator was warned as to his future conduct and that there can be no repeat as to the shortcomings, outlined above.

R Turfitt

Traffic Commissioner

22 March 2023