Decision

Decision for MAK Haulage Ltd (OF1142690) and Mihail Kuksov – Transport Manager

Published 8 October 2020

In the Eastern Traffic Area.

Confirmation of the Traffic Commissioner’s decision.

1. Background

MAK Haulage Limited holds a Standard National Goods Vehicle Operator’s Licence authorising the operation of 11 vehicles and 11 trailers. The sole Director and Transport Manager is Mihhail Kuksov. There is one Operating Centre at Compound 1, Callen Road, Riverside Industrial Estate, Boston, PE21 7TN. There are two notified maintenance contractors: Guest Trucks in Boston and Commercial Vehicle Services in Grimsby, both to inspect vehicles and trailers at 8 weekly intervals. In the course of the hearing I was told that the latter contractor is no longer used.

The licence was originally granted from 1 February 2016 to operate 3 vehicles and 3 trailers. A variation application to increase authorisation by 2 vehicles and 2 trailers was granted in August 2016. A further variation in April 2017 led to the current authorisation of 11 vehicles and 11 trailers.

Following unsatisfactory reports from a Vehicle Examiner and Traffic Examiner, the operator was called to a Public Inquiry on 12 July 2018. The presiding Deputy Traffic Commissioner apparently accepted nine undertakings. The following remain attached to the licence:

• The operator will engage Pater Gale of 2 Roads Consultancy to provide compliance, consultancy and auditing until 12 January 2020.
• Compliance systems will include;
• A satisfactory driver defect reporting system and monitoring of the effectiveness of this by analysis of driver defect reporting records in manual maintenance inspection records;
• Spot checks of driver defect report walk-rounds of both vehicles and trailers.
• Rolling road brake tests and records thereof will be included in all planned maintenance inspections.
• Peter Gale will perform a repeat audit and report of compliance systems as per undertaking number 2, at quarterly intervals after 12 September 2018 until the completion of his engagement and the reports will be provided to The Office of The Traffic Commissioner within 14 days of completion of the audits. Contracts for the supply of drivers’ services will be evidenced in writing setting out inter alia the disciplinary consequences of infringement of compliance requirements and will be supplied to The Office of The Traffic Commissioner by 12 August 2018.

Mr Kuksov is also the nominated transport manager for Technical Event Company Ltd.

2. Hearing

This case was originally listed on 2 April 2020 but had to be postponed due to the Covid-19 restrictions. It was heard on 14 July 2020 in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator and Transport Manager appeared, represented by Lucy Whitaker, a solicitor, of Pragma Law.

Mrs Whitaker asked that Mr Weightman attend to give evidence and that Mr Gale, a transport consultant, be permitted to attend the hearing by video link. No statement or report was provided in advance of the hearing.

3. Issues

A variation application was submitted on-line on 11 April 2019, seeking to increase authorisation at the existing authorised operating centre from 11 vehicles and 11 trailers to 16 vehicles and 16 trailers.

The Public Inquiry was called for me to consider whether I needed to intervene in respect of this Operator’s Licence and specifically by reference to:

• section 26(1)(c)(iii) – prohibitions (page 71)
• section 26(1)(ca) – Fixed Penalty Notices (page 83)
• section 26(1)(f) – undertakings to ensure that vehicles and trailers are in a fit & serviceable condition, to have an effective written driver defect reporting system, to have complete maintenance records and retain them for a period of 15 months to be made available upon request
• section 26(1)(h) – material change:
• section 27(1)(a) – repute, financial standing, professional competence by reference to the Transport Manager.
• section 28

and the equivalent provisions in relation to the application under section 17, 13A(2) and 13C.

The operator failed to comply with Directions and maintenance documentation including, maintenance inspection sheets, annual test documentation, brake test print outs were received on 9 July 2020. The current working restrictions meant that Mrs Whitaker was only able to send those in piecemeal fashion. It has proved difficult for OTC to compare those records and to identify those reports which should be attached to which vehicle. Two more brake reports for SF64 BBK dated 4 November 2019 and 9 April 2020 were emailed during the course of the hearing. All brakes locked service 41, 23, 16 and 47, 54, 21 respectively. Again, they showed significant axle imbalances.

An email was sent to the solicitor requesting the financial evidence on 9 July 2020. That financial evidence proved to be satisfactory.

4. Summary of Evidence

The operator was the subject of a joint DVSA investigation by a Vehicle Examiner, Mr Weightman, (page 52) and a Traffic Examiner, Mr Hornby (page 59), on 20 September 2019. To the credit of the operator the latter was mostly satisfactory. However, Mr Weightman identified a number of concerns

• Annual test initial pass rate since the public inquiry in July 2018 at 62.5% based on 16 tests with four ‘PRS’ and two failures.
• 11 roadworthiness prohibitions issued since the public inquiry in July 2018: six immediate, three delayed, two variations and one variation and refusal.
• Nine Fixed Penalty Notices issued to company drivers.
• Forward planner is not amended to reflect any changes to dates to maintenance inspections.
• Driver detectable defects are being found on the maintenance inspections.

Mr Kuksov responded to the Examiner by email on 24 September 2019 (page 57) referring to individual planners for the vehicles but acknowledged that the operator may not have printed out the most recent version. He also claimed that the number of driver detectable defects had reduced. I have noted from my dip sampling of the records that there appear to be written defect reporting, although the handwriting makes those reports and rectification almost illegible. I also noted a recent example of a driver report app, in use, with photographs taken.

Mr Kuksov queried a number of prohibition notices, describing them as ‘unjustified’, but then acknowledged that he had failed to appeal them. The response appears to put blame on the Examiners, but I could not discern any real basis for that criticism. In the absence of appeal, those notices stand as a matter of public record. There was an apparent acceptance of the maintenance related prohibitions with reference to new systems for checking test certificates and maintenance standards. The operator had apparently changed maintenance contractor, in order to address these concerns. He refers to a workshop being available at the port.

The decision on the variation application was held in abeyance until the compliance audit due in June 2019 was received. However, the operator was called to attend a preliminary hearing on 8 January 2020. Deputy Traffic Commissioner. Mr Dorrington, identified issues of non-compliance (page 117), which required to be considered at Public Inquiry and specifically:

• roller road brake testing, when vehicle is not properly laden;
• first time pass rate at annual test;
• lack of formal transport manager development;
• lack of robust disciplinary procedure for drivers;
• high prohibition rate; and
• effective driver defect reporting system.

The DTC directed that the matter was referred for consideration at public inquiry. He also directed that the variation application to increase the licence authorisation to 16 vehicles and 16 trailers would be considered at the public inquiry.

In consideration of the current position, I noted the steps taken by the operator. Mr Weightman gave evidence about the willingness of the operator to act on advice and had done so between the first and second visits. I also noted that he had embraced spot checks of drivers but due to their work patterns and tramping, this can only take place on a Monday. He had implemented driver penalties where detectable defects were later discovered. He has made the relevant drivers attend at the CVS premises to be shown the defect and to learn from the incident. In the course of the hearing he acknowledged that he might also ask the CVS facility at Immingham port to undertake a spot check of vehicles and third party trailers being collected, as he is unable to access the dockside himself.

As Mr Weightman very helpfully identified, there remains a risk from traction operations which pull third party trailers. In this case the majority of that operation involves trailers which are not subject to the more rigorous requirements of the Great Britain licensing scheme. The DVSA Guide to Maintaining Roadworthiness assists operators by making practical suggestions for managing those risks:

3.3 Traction services and third party trailers

Ensuring third party trailer roadworthiness can be problematic for the traction service operator. Usually for short-term use the trailer owner would be responsible for the routine maintenance of the trailer, including the safety inspection (SI). Under these circumstances, traction operators are reliant on the trailer owner to correctly carry out their own safety inspections within their stated frequency and complete any necessary repairs.

The traction operator is responsible for ensuring a thorough walkaround check of the tractor/trailer combination is carried out to establish it is safe prior to use. If defects are identified during the walkaround check, these should be rectified prior to use.

Traction operators would be expected to work with the trailer owners to ensure any trailers operated fall within the owner’s agreed SI frequency and that they are roadworthy. It is best practice for the trailer owner to provide evidence for the operator that first use checks and safety inspections have been undertaken and demonstrate there are no outstanding defects reported for the trailer.

There must also be a robust system in place to ensure defects identified during the walkaround check, or develop during use, are recorded and rectified before the tractor/trailer combination is operated in an unroadworthy condition.

I heard evidence of the walk round procedures, supported by training and instruction. Those were the subject of audit by Mr Gale until January of this year. I also heard that the operator works with the customer and is given access to maintenance/annual test records, at his request. Another control measure which the operator is also to explore may involve limiting those activities to trailers of a set age or younger. However, it is vital that the robust driver defect reporting system remains in place. I was impressed by the steps described in that regard, but drivers must continue to be alive to the tyre issues which have emerged. Those arrangements are now supported by a monthly fleet check undertaken by the tyre contractor. What Mr Kuksov described is a driver defect reporting system, based on risk management. That does not require a separate undertaking as there is a general undertaking on every licence in any event. I have removed the addition from this licence.

From my initial dip sampling of the records provided, I observed the following:

• Use of the R2C system with electronically produced maintenance inspection records;
• The safety inspection records for BV12PXC and SF64BBK showed an almost total absence of brake performance testing from the end of 2019 onwards. Those roller brake print outs, which were available from 2019 demonstrated consistent failures, with under-laden vehicles resulting in serious off-side axle imbalances, which should have been obvious to the Director/Transport Manager. I was subsequently provided with additional and more up to date brake testing results.
• There was a near absence of trailer records with two copies of the same sheets for C111793 and C279595 but two inspection records for C147041 on 27 April 2020 and 15 June 2020, all showing driver detectable defects.

I have already considered the driver reporting systems. The operator then produced roller brake testing print outs, but I could see why concern had arisen from the Preliminary Hearing. Mr Weightman, with characteristic patience, explained how the brake tests should be interpreted. It could be seen from the tests conducted at annual test, that the DVSA tester had cause to use their discretion to pass the vehicles even when presenting under the percentage pass rate. The inspection manual allows for this, but the tester is required to endorse the results. That is not present on the other inspections carried out by either of the contractors.

I have included relevant extracts from the DVSA Guidance: Heavy vehicle brake test: best practice:

4.1 1.1 Locked wheels and the brake test

Vehicles must be fully loaded before being roller-brake tested because the grip between the tyre and the rollers is more effective that way. The wheels keep turning for longer, and a higher brake force will be achieved. If your vehicle is empty or only lightly loaded, the grip between tyre and the road (or the rollers on a roller- brake tester or ’RBT’) will be lower, and a relatively small brake force will cause the wheels to lock (stop turning). Once locked, no matter how much more the brakes are applied, the recorded brake force won’t increase. This means that if the vehicle’s load is too light, the wheels may lock before achieving the required brake efficiency. If a vehicle is properly loaded, there are two concessions in the HGV inspection manual that Driver and Vehicle Standards Agency (DVSA) inspectors can make:

• front wheel lock allowance (FWA): this takes into account the weight transfer to the front axle(s) that occurs when the vehicle is on the road
• passing on locks (locked wheels): if more than half the wheels on a system lock, then the vehicle will pass on locks, unless there’s another reason for failure You shouldn’t rely on either condition during test preparations. If the wheels don’t lock in the actual test, the vehicle will have to meet the required efficiency. #### Remember: a locked wheel does not always mean a good brake

4.2 2. Preparing your vehicle for the brake test

Authorised Test Facilities (ATFs) are responsible for making sure that vehicles are properly loaded before the MOT starts. This normally means at least 65% of the vehicle design axle weight (DAW). You can do this in a number of ways:

• by arranging to load the vehicle or trailer yourself
• by asking the ATF to provide load simulation - a loading fee may apply
• in the case of a tractor unit, using ballasted trailers - ask your local ATF if they have one for hire

Where load simulators can’t be placed above the rear axles, vehicles or trailers - unless exempt by design - must be loaded when tested. This includes:

• any multi-axle vehicle or trailer (excluding tri-axle semi-trailers) with a bogie weight exceeding 10,000kg
• tri-axle tractor units that are fitted with air suspension on any of the rear axles: to provide sufficient load these must be coupled to a loaded semi-trailer, so that the drive axle is loaded at or very close to the plated weight shown in column 2 of the plate and plating certificate

When loading a vehicle for brake test:

• place loads close to the rear axles
• aim to apply at least 65% - and not less than 50% - of the design axle weight to each axle
• if possible, use similar loads to add weight to the vehicle: this will help in placing the loads correctly, and achieve consistency between tests
• where load simulators can’t be placed above the axles - unless exempted by design - the vehicle or trailer must be presented laden

Operators need to be aware of the above guidance. Where a vehicle fails to achieve the pass values on the print-out but still shows as having locked, an operator and Transport Manager should be in a position to question the maintenance contractor about the results and to seek an explanation. By way of quick reference and to assist the operator with the types of questions to be put to the contractor, I have included the ‘pre-MoT RBT checklist’ prepared by DVSA:

• is the vehicle sufficiently loaded?
• have all the brakes had time to bed in?
• are you aware of the correct method of inspection?
• is the RBT calibrated and in good condition?
• has the vehicle exceeded the minimum efficiency required in the manual?

It has been made clear to the operator that it is his responsibility to be managing the contractor and to demand a written explanation for unusual brake recording, as part of the maintenance record. I have accepted the operator’s assurances that this will be included going forward.

5. Decision

I made formal findings in respect of historical shortcomings, under sections 26(1)(c)(iii) – prohibitions, (ca), (f) driver defect reporting and records.

On the basis of Mr Weightman’s evidence, the assurances given during the hearing and the noted improvements, whilst I warned the operator and Transport Manager that there can be no repeat of the historical deficiencies, I did not find it necessary to intervene and was content to grant the application to increase authority.

RT/TC/14/7/20