Decision

Decision for JPA Transport Services Ltd (OC1129848)

Published 8 June 2022

0.1 In the North West Traffic Area

1. Written Decision of the Traffic Commissioner

1.1 JPA Transport Services Ltd OC1129848

1.2 Richard Brownhill former Transport Manager

2. Background:

JPA Transport Services Ltd is the holder of a Standard International Goods Vehicle Operator’s licence for 30 vehicles and 8 trailers. The licence was granted in September 2014 and the sole director is John Ashurst. The business is engaged in sub-contracted parcel delivery.

An outstanding application for an increase to the licence made on 25 August 2021, for an additional 10 vehicles and 1 trailer, is before me.

A previous Public Inquiry in October 2020 was prompted by the discovery that drivers were making false records by “pulling” of drivers’ cards and failures to take a break of 45 minutes after 4.5 hours driving. The operator’s systems were inadequate to prevent such occurrences. There were other concerns about drivers’ hours compliance. The operator’s licence was curtailed by 3 vehicles down to 27 vehicles for a period of 8 weeks and a formal warning was issued. An undertaking requiring laden rolling road brake tests at every other preventive maintenance inspection was agreed by the operator.

The TM on the licence at the time of the 2020 Public Inquiry (and until he left the business in November 2021) was Richard Brownhill. In 2020 TM Brownhill’s good repute had been marked as “tarnished” but not lost; and a warning was then recorded as to his future conduct.

The former TM was called-in to this hearing. Unfortunately, Mr Brownhill had chosen not to attend. He had though submitted a written representation dated 13 May 2022. He was robustly critical of me, the Office of the Traffic Commissioner and DVSA. He explained that during the pandemic it had been a struggle to meet the vehicle maintenance schedule for reasons beyond his control but argued that safety had not been prejudiced. He indicated that he was not working as a TM, nor would he ever be in the future. His correspondence ended “Feel free to ban, censure or cancel my Transport Manager Authority, it will not matter to me.”

The newly appointed TM, Adam Ashurst was present (but not called) alongside his father, John Ashurst. I heard from both of them and the proposed additional TM/Operations Manager, Ben Spence and have taken into account the evidence of Grahame Robinson and his report on compliance, which was positive in tenor. They were represented by Mark Davies, solicitor.

3. Circumstances leading to the calling-in:

This calling-in to a hearing arises following a maintenance investigation with an adverse outcome by VE Powell on 2 November 2021. Whilst 9 of 12 assessment areas led to ‘satisfactory’ or ‘mostly satisfactory’ findings, 2 fell into the ‘unsatisfactory’ category and another required to be reported to the Office of the Traffic Commissioner. The assessed TM performance was stated as ‘mostly satisfactory’.

There were concerns about the quality of record keeping including the caption declaring vehicles fit for use on the road, stretching of maintenance frequencies and driver detectable defects found at PMI. The bespoke undertaking requiring the provision of rolling road brake tests in laden condition was not met. There were some brake tests but while some were not laden (or were inadequately laden), others were ‘road tests’, unmeasured and therefore limited in value.

The operator had itself commissioned the RHA to carry out an independent audit of compliance some five weeks after VE Powell’s visit. Its findings substantially mirrored those of DVSA, including in relation to stretched maintenance frequencies and the breached undertaking about brake testing.

4. The hearing:

For the most part, the DVSA evidence was accepted by the operator, although subsequently some missing inspection sheets had been located, which appeared to reduce the extent of the stretching. I noted that the RHA audit had sampled some different vehicles in its report, but similar stretching was raised. Mr Ashurst referred to problems with certain of the contractors carrying out work for him, which had since been addressed.

In relation to brake testing, it was contended by the operator that whilst it was accepted that the strict terms of the undertaking about laden state was probably breached, there were a number of examples where tests were carried out under some load. In some cases, it was claimed the design axle weight borne was at least 65% but positioning was such that the warning message “Insufficient load on axle 2 and 3”, or the like, was still recorded. I accepted the broad point that testing with some load was much better than none, but it was beholden on any operator with a specific undertaking about brake testing, fully to achieve the requirement.

John Ashurst acknowledged that his supervision and oversight of Richard Brownhill had been inadequate, and that it was now evident to him that his TM had ‘cherry-picked’ what he had produced at their monthly meetings. It appears from what I heard that relationship between director and TM that should always be business-like or arms-length, had become too friendly and familiar, and that this provided a context that militated against the level of challenge that was needed.

I heard extensively from the operator about steps taken to address issues raised:

• After an internal investigation, the dismissal of Richard Brownhill as he was said to be “no longer suitable” from his role as TM, and his replacement by Adam Ashurst,
• Putting Ben Spence through the TM CPC qualification with a proposal to add him as an additional TM. His appointment coming well before the visit of VE Powell,
• Rationalising maintenance arrangements through fewer contractors,
• Further training arranged for the director and TMs,
• Fully-minuted monthly transport compliance meetings held,
• Preparation for making application for ‘earned recognition’ and achieving ISO accreditations,
• The proposed ongoing support until at least December 2022 of Jake Lane, a transport consultant, in helping the new TMs to transition from theoretical understanding to being practically aware postholders.

5. Findings and decision:

6. The operator:

In reaching this decision, I have taken into account the Senior Traffic Commissioner’s guidance in statutory document No.10. I have balanced the positive and negative factors.

There are clear positives relevant to the greater likelihood of future compliance, which I have set out in paragraph 13 above. The appointment of Ben Spence has added weight to the operator’s argument that I can have trust going forward. He was indeed an impressive witness with an apparent understanding of the bigger picture.

It is the case that road safety concerns are not mirrored (as they sometimes are) by high levels of prohibition or a very inadequate MOT history

A significant negative is that the previous call to Public Inquiry has been shown to have been insufficient to bring things back onto the track. A basic failure of the director to call to account the TM has been a disappointing feature, e.g., he had not even ensured that the response to the DVSA investigation had been approved by him. It is well established that directors cannot hide behind the supposed deficiencies of their TMs (not that this director seeks to do that and admits his responsibility).

The failure to meet a specific undertaking set down at Public Inquiry is highly regrettable, particularly one that relates to safety critical aspects of an operation. Similarly, failures to maintain vehicles in accordance with promises made about timeliness will necessarily increase risk to other road users.

The operator accepts that systems in place have not supported entirely compliant operation, even when I take into account that the true picture is probably less serious than initially found by DVSA. I conclude that ‘serious to moderate’ regulatory action is appropriate.

I judge that suspension for this operator would be a significantly disproportionate outcome.

As to curtailment, I am told that the full fleet is engaged daily but that there is some level of 24/7 running already (i.e., two shifts operating day and night using the same vehicle). It may be that the operator will need to entertain further such usage. The operator’s shortcomings have however brought it to this point, and it may well be the case there will be commercial impact and disruption that will result from the direction I now give. In determining the extent of the order that I make and the period over which it must endure, I seek to balance the need to mark the failures and their seriousness, alongside the steps taken to date to secure compliance sustainably.

Curtailment will be of 2 vehicles for a period of 10 weeks. I shall provide the operator with the opportunity to re-arrange business so that there is a reduced likelihood of unintended consequences of the order made. The direction will take effect at 23.45 hours on a date of the operator’s choosing before 30 June 2022 and conclude 10 weeks later at the same time. The director will notify the registrations of vehicles to be removed by Friday 3 June 2022, unless the start date is before then, when it will be no less that one working day. I direct that the vehicles removed may not be used under any other operator’s licence during the curtailment.

An application to vary the licence, by the addition of 33% more vehicles, made 10 months after the last Public Inquiry, predates the adverse findings of DVSA. As is often the case, there is considerable irony in determining an increase application at the same time regulatory findings demand a reduction. The appointment of Adam Ashurst is recent, and the additional appointment of Ben Spence is yet to be made. It is not possible for me to justify increasing the licence in the manner requested at the end of the curtailment. I am however prepared to grant half of the increase, to take effect at that point. For the avoidance of doubt, the licence will take effect as authorising 35 vehicles and 9 trailers once the curtailment concludes.

I record appropriate statements of intent above.

7. Richard Brownhill, Transport Manager:

As to the absent former TM, Richard Brownhill, I am unable to conclude that his good repute is maintained. As he will know, he ought to have attended the hearing, particularly in circumstances where he had so recently been to Public Inquiry with regard to his repute, and within which it had been tarnished. I have heard evidence from his former employer that included criticism of him. I judge that criticism of him to be justified and reasonable. Despite the obviously difficult context in which businesses were operating in 2020/2021, there were fundamental failures here which ought to have been better managed and addressed by him. Whilst it is creditable that he has indicated he has removed himself from the role for good, I do not find the matter capable of closure through his effective retirement, without making a formal order.

I mark his good repute as being forfeited, I declare him unfit to hold the role and as I am required to, I disqualify him from acting as TM in any traffic area.

In the circumstances, in his absence, I am unable to identify suitable rehabilitative steps (and from what he says, setting them down would be of no value), or to calculate an appropriate period of disqualification, and therefore settle on an indefinite disqualification. If at some future point he did wish to return to the role, he would need to make application to vary the period of disqualification.

Simon Evans

Deputy Traffic Commissioner

for the North West of England

01 June 2022.