Decision

Decision for Marco Norman & Yasmin Langford t/a Safetyworks & Solutions (OF1001140)

Published 16 March 2021

IN THE EASTERN TRAFFIC AREA

0.1 MARCO NORMAN & YASMIN LANGFORD t/a SAFETYWORKS & SOLUTIONS – OF1001140

1. CONFIRMATION OF THE TRAFFIC COMMISSIONER’S DECISION

2. Background

Marco Norman and Yasmin Langford hold a Restricted Goods Vehicle Operator’s Licence authorising 3 vehicles only.

There is one Operating Centre at Unit 6 Earith Business Park, Meadow Drove, Earith, Huntingdon PE28 3QF. There are two declared contractors showing on the licensing record: Priors Field Farm and Chris Webb, undertaking Preventative Maintenance Inspections of vehicles at 12 weekly intervals. The specified vehicles were BX04 LTJ, PO58 OUC, SJ64 ADU. The ‘defect report sheets’ produced confirm that Mr Webb is a mobile fitter. At the hearing I was told that BX04 has been sold in December, but its details remain on the licence record. OPO58 was removed on 16 December 2020 to be replaced by YK15 VAJ. Mr Norman indicated that discs had yet to be returned. Mr Webb is no longer being used and inspections now take place at Sun Fun Coaches, which has not been notified. Following the first hearing I received the disc for BX04 LTJ, but it has still not been removed from the licensing record.

There are no other compliance issues recorded against the licence. The nature of the business is listed as permanent and temporary safety equipment. The Companies House register show a limited company called Safetyworks & Solutions Limited (04193823) which was incorporated on 4 April 2001 (page 54). The website: https://www.safetyworksandsolutions.co.uk/ suggests that the limited company is engaged in the manufacture of permanent and temporary safety equipment. That company and this partnership share the same office and correspondence address. Mr Norman is a Director. The other Director is a Yasmin Efua Norman, whose date of birth is the same as Ms Langford’s, now confirmed to be the same person. Enquiries were made by the OTC licensing team in late 2011 about a possible change of entity. In response, the partnership stated that the vehicles and licence were run and owned by the partnership and not the limited company (page 69).

3. Hearing

The Public Inquiry was originally listed for 6 January 2021 but due to lock down restrictions it was relisted for 24 February 2021, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was then present at a virtual hearing, in the form of Mr Norman, who was unrepresented. It was only during the course of the hearing that it emerged that Mr Norman did not have the hearing bundle with him. Those papers had been sent by recorded delivery and received by ‘Safetyworks’, with delivery at 10.20 am on 19 November 2020. I therefore went part-heard to 2 pm on 4 March 2021.

4. Issues

The operator was put on notice of the seriousness of the matters under consideration in a letter dated 29 September 2020 (pages 42 to 43). Mr Norman eventually requested a Public Inquiry in correspondence dated 27 October 2020.

The public inquiry was called for me to consider whether there were grounds to intervene in respect of this licence and specifically by reference to the following sections of the Goods Vehicle (Licensing of Operators) Act 1995:

• 26(1)(f) – undertakings (drivers’ hours and tachographs)

• 26(1)(h) – material change with regards to fitness and finance

• 28 – disqualification of directors and operator to be considered

The operator was directed to lodge evidence in support, including the following, with the OTC by 21 December 2020:

• up to date financial, showing access to an average of £6,500 over the last three months

• regular safety inspection records for the last 12 months

• the maintenance contract(s)

• the driver defect reports for the same period

• forward planner

• evidence of the systems for ensuring compliance with the drivers’ hours and tachograph legislation

• evidence of training or disciplinary action received by drivers and managers

The documents submitted were in the name of a limited company and not this partnership. This was raised with the operators in correspondence from OTC dated 4 February 2021. In response, the operator’s email of 15 February 2021 indicates that the partners are the shareholders of the Limited Company. It states that this makes them the owners of the assets and chattels of that company. The email indicates that the limited company was formed in April 2001 and claims that this has not been an issue to date. The operators acknowledge that it was raised during the DVSA contact, referring to it as “a grey area”.

5. Summary of Evidence

The operators were the subject of a DVSA investigation on 5 March 2020. The report of Traffic Examiner, James Fordham, is at pages 26 to 37 of my bundle. His concerns can be summarised as follows:

• drivers’ hours compliance

• a failure to ensure adherence to working time directive

• a failure to download driver cards and vehicle units

• a lack of charts for the analogue vehicle

• no system in place to carry out driving licence checks

• no effective management of the operator’s licence requirements

Mr Norman responded to the DVSA investigation on 18 March 2020 (page 38). He indicated that the operators had been ‘talking to Paul at Anglo Tacho’, with the intention of providing training to all drivers including Mr Norman and Robin Miles-Holdaway, within the next few weeks. He proposed to fit charts to the dashboard to remind drivers of the driving time requirements and indicated that analogue charts had now been retrieved from drivers. Drivers would then be issued with an envelope containing analogue charts for 28 days. Monthly downloads have been delegated to Mr Miles-Holdaway.

Following the first lock down, the Office of the Traffic Commissioner sought confirmation that these remedial measures had been completed (page 39, letter dated 9 July 2020). There was no response so checks were made of Royal Mail track and trace, which confirmed that the letter had been delivered and signed for on 10 July 2020. In subsequent correspondence it was claimed that the letter which was signed for as ‘SAJA’ had not been received. That inevitably resulted in a proposal to revoke this licence being sent on 29 September 2020. Checks of track and trace showed that the letter was signed for by Mr Norman on 30 September 2020. The operators failed to respond within the deadline but eventually replied on 27 October 2020.

Mr Norman’s emails admit that the operator had not completed the actions to address the identified shortcomings. He referred to Covid-19 and the furloughing of staff. The Anglo Tacho training had not yet been delivered. In the correspondence at pages 45 to 50 of the bundle, Mr Norman signs his letters and emails as ‘On Behalf of Safetyworks and Solutions Ltd’.

In advance of the hearing, OTC sought evidence of compliance with drivers’ hours and tachograph requirements. It was eventually provided in an accessible format and then forwarded to Mr Fordham for analysis. However, what was provided amounted to extracts from drivers’ hours analysis for only 2 weeks: commencing 30 December 2019 and 2 November 2020. This disclosed in those two weeks the listed drivers committed 1 infringement each. That information is practically meaningless without information as to how often drivers’ cards are downloaded, how often vehicle units are downloaded, how often infringement reports are generated, what is the process for dealing with any infringements found and any disciplinary process and who is responsible for analysing the drivers’ hours data. None of the raw data was provided. The call up letter requested: Evidence of your systems for ensuring compliance with the drivers’ hours and tachograph legislation. They failed to comply with that Direction, but Mr Normal tells me that there was an issue with converting into a pdf format. Immediately before the hearing the operators provided two additional reports and other data, which could not be analysed. The additional material confirmed that infringements are occurring, but the reports have not been signed and do not appear to have been acted upon. Tellingly, the report for the week commencing 30 December 2019 is headed: ‘Safetyworks and Solutions Ltd’.

Inspections are taking place at intervals far beyond the recommendations in the Guide to Maintaining Roadworthiness. I made the following observations from my dip sampling of the records for:

BX04 LTJ in the name of Safetyworks & Solutions:

• inspection on 15 December 2020 i.e. 10 weeks ago (odomoeter reading 277040 = +15418 km) – roller brake test after work on brake discs and pads showing 62%, 27% and 22%, but a major imbalance of 34% on the service brake, off-side on axle 1, with a list of driver detectable defects including marker and side lights, hole in flatbed floor, off-side front mirror, oil leak;

• the next inspection was over 52 weeks previous on 13 December 2019 (odometer reading 261622), when there was no brake check but numerous driver detectable defects including wiper blades, fuel cap missing, near-side under bar insecure, oil leaks;

• that was over 17 weeks since the previous inspection on 12 August 2019 when the operator was reminded that the tachograph calibration was required, there was no brake check but numerous driver detectable defects;

• that was 13 weeks since the inspection on 13 May 2009, with the next sheet being dated 6 November 2018.

SJ64 ADU in the name of Safetyworks & Solutions:

• with an inspection on 9 November 2020 over 15 weeks ago (odomoeter reading 157164 = + 10976 km) – passed roller brake test showing 58%, 29% and 18%, with a list of defects left to the customer including near side front tyre no continuous tread, off-side rear tyre, mirror back missing and yet signed off as roadworthy;

• the next inspection was over 37 weeks previous on 25 February 2020 (odometer 146188) no brake test, Mr Webb’s defect sheet refers to front bumper mirror glass again, number plate light, off-side read marker light not working, engine malfunction warning, Adblue fault, none recorded on the PMI and therefore not signed-off as roadworthy;

• that was over 28 weeks since the previous inspection on 13 August 2019 with no brake test, Mr Webb’s defect sheet refers to front bumper mirror glass again, near-side front side light, near-side front tyre underinflated, coolant and oil levels, none recorded on the PMI and therefore not signed-off as roadworthy;

• that was over 13 weeks since the previous inspection on 13 May 2019 with no brake test, Mr Webb’s defect sheet refers to front bumper mirror glass, wiper blades, off-side top tail light, off-side rear marker light lens missing, coolant, none recorded on the PMI and therefore not signed-off as roadworthy;

Mr Norman was unable to offer a satisfactory explanation for the above. At one point he suggested that the registration for SJ64 had been wrongly recorded, but this was not the case. I note the dates of inspection compared to the dates of specification on the licence. On his own admission, his records are in a mess.

In his subsequent email Mr Norman refers to driver defect books being kept in the cabs. What I have seen are defect books dating from 2014 to 2016. The one book dating from 2020 is not reserved to a single vehicle and does not include November and December 2020. Mr Norman suggests that vehicle activities were logged in the works diary and on the team’s daily work sheets to identify the name of drivers to and from site. I have seen three examples dating from September and October 2020 and January 2021. This was the practice for many years. The daily sheets are now apparently stored electronically with details of any tasks.

On his own admission, Mr Norman was unaware of the need to notify relevant changes. He had failed to notify me of a change of vehicles, had not returned the Operator Licence discs and had failed to ensure the accuracy of the licence record. He had been content to rely on a mobile fitter but had, since December, been relying on another contractor but without a contract. In his own words he had been reliant on Robin Miles-Holdaway, who had engaged with Mr Fordham during his investigation. This was the same person who Mr Norman had blamed for communicating the wrong entity details in the licence continuation paperwork submitted in 2011. In evidence Mr Norman told me that any improvements in compliance had been delayed by the decision to furlough Mr Miles-Holdaway, who only returned to work in November 2020. He subsequently took leave from January 2021 due to family circumstances. Mr Norman confirmed that Mr Miles-Holdaway is employed by the company and not these operators.

On 25 February 2021, Mr Norman sent an email to the OTC to confirm that he had now read the bundle sent to him by email and recorded delivery shortly after the first hearing. That confirmed that the company had finally lodged an application for an Operator’s Licence in the name of Safetyworks and Solutions Ltd. The email further illustrated a concerning lack of knowledge, in that Mr Norman failed to appreciate that the licence has been renewed several times since grant without the change in entity having been notified. Reference was also made to a new maintenance contract but unfortunately that was not attached to the email. It is apparently dated 15 December 2020 and covers a period when the company has been operating behind the front of the partnership licence. The email confirmed the reliance on the mobile fitter up to that date. The email indicates that the operator intends to continue to have vehicles inspected at 12-weekly intervals. The use of the planner is said to cover “all of the Limited company and Partnership vehicles”. Mr Norman indicated that PO58 OUC and BX04 LTJ have been disposed of. I refer to his latest letter, below. He refers to the use of vehicles, which are 5 and 6 years old and used only 3-4 times a week.

Mr Norman’s email accepts that there have been serious errors. He implies that responsibilities would have been delegated to Mr Miles-Holdaway but, in the short-term Mr Norman and a colleague will manage the defects and inspections. In the long-term there is the possibility of Mr Miles-Holdaway undertaking a CPC. Anglotach has been retained to analyse drivers’ card; new soft-ware has been purchased. Reference is made to downloading driver cards every 28 days, but there is no reference to the vehicle units. I refer to his latest letter. Mr Norman aims to implement the advice of Mr Fordham by March/April. The driver “most in need of help” has been furloughed. He suggests that the other two are competent. He refers to disciplinary action taken against previous employees and to speaking to drivers about their obligations including recording time spent inspecting the vehicles. He admits that drivers had failed to record this other work in the past.

On 3 March 2021, Mr Norman submitted what he termed an update, on behalf of the company, although the letter showed the partnership VAT registration. He indicated that the operators would not be seeking legal representation, but then proceeded on the mistaken impression that, even after the change of entity, it might be possible to retain this operator’s licence. He refers to a number of charitable endeavours to support the local community. The letter does indicate an appreciation that the company must now seek a new licence and refers to an application which has been lodged in the usual way. That is not before me today. Inspection sheets for PO58 OUC were apparently surrendered when that vehicle was sold. He confirms that the current vehicles are SJ64 ADV & YK15 VAJ and that the application will seek authority to operate 3 vehicles. He refers to a discussion with the previous contractor, and whilst referring to light use of the vehicle still fails to address the starting point identified in the Guide to Maintaining Roadworthiness about aged vehicles. He refers to a contract with Mr Webb before he ceased trading. That change has now been communicated to OTC Licensing. There is a contract with Peterborough Tyres at Needingworth, 2 miles from the Operating Centre. Concerningly, the letter indicates that all servicing, inspections and repairs will proceed, as before. A vehicle has just been inspected this week through the new provider. It was returned without the completed PMI form.

On drivers’ hours the operator is apparently content for staff to have opted out of the Working Time Directive, with hours varying between 37- 50 hours per week. They are apparently monitored via Daily Work Sheets, which are stored electronically. The letter indicates that the operators now insist on drivers carrying a copy of the weekly records. The operator also refers to the card reader, to ‘store’ tachograph data. Mr Norman was unclear on how drivers’ hours rules would be complied with and appeared to distinguish driving from the need to record work. It is accepted that the operator was slow to act on the advice to start scrutinising the data, attributed to the pandemic. They now rely on Anglotach to monitor and report on any infringements. Vehicle Units and driver cards are downloaded every 28 days. Reference is also made to ongoing tool-box training. Additional training has been provided to Driver Townsend, who was found to be struggling with the digital tachograph. He is still employed on local work. Drivers have also been spoken to about safe loading.

Mr Norman offered additional reassurance from the subscription to updates on law and procedures. He is apparently compiling an information pack or folder for future reference, to be kept with the vehicle files. The operators are now aware of the need to notify what is termed as ‘the Ministry’.

6. Determination

On the basis of the above I have no hesitation in recording adverse findings in respect of sections 26(1)(f) – undertaking for drivers’ hours and tachograph compliance, 26(1)(h) – material change with regards to entity and finance to support maintenance (13D). In addition to the failure to notify changes, I have noted some of the worst maintenance records and systems since I took up post as a Traffic Commissioner.

I noted that a number of people within the office had suffered from illness during the pandemic and that Mr Norman had also been diagnosed with Covid 19, but my observations of the maintenance documents suggests that the issues with this operator have existed for a period far longer than the current pandemic.

In this case there has been a clear change in entity so that the partnership no longer has the finances required to support maintenance. As a result, the operator’s licence must be revoked. I accept that there was no apparent malintent by the partners, but all the documentation indicates that they are ill-equipped to ensure compliance. I have identified the following negative factors:

• reckless as to the need to meet maintenance standards,

• that has been permitted over an extended period and despite interventions which should have prompted the operators to make their own inquiries,

• there has and continues to be ineffective management control leading to compliance failings, but I note the efforts to improve,

• there has been ineffective analysis and procedures to prevent drivers’ hours infringements, although units and cards are now downloaded for external analysis,

• with insufficient and/or ineffective changes made to ensure future compliance.

I have noted the change in maintenance contractor and Mr Norman’s frank responses during the hearing but, at its most positive, the starting point for intervention places the case in the SERIOUS if not SEVERE category, by reference to Statutory Document No. 10.

In 2013/007 Redsky Wholesalers Ltd, the appellate Tribunal confirmed the application of the test it posed in 2009/225 Priority Freight, namely: how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime? In all the circumstances and at the date of the Public Inquiry, I cannot reach a positive view as to the ability of the operator. I refer to the Upper Tribunal decision in 2019/066 Anthony Mullane & Jane Mullane, which appears to be particularly on point: Where a breach of a regulatory requirement stems from a lack of knowledge of such a regulatory requirement, then it seems to us that simply saying a regulated operator or individual can learn from such an incident of non-compliance is not really an answer. As to the point concerning complexity, we would accept that, speaking generally, the regulatory system is not without features which some persons may find, in some respects, difficult to understand. But the point here (and again this reasoning is implicit from what the TC had to say) is that a regulated operator or individual has to be able to grasp the nature and demands of the regulatory system in order that a regulator can have confidence that such an operator or individual will, in future, be compliant. It is difficult to be confident in an ability to comply on the part of a person who does not always understand what is required in order to be compliant.

Even at the date of this delayed hearing, the level of knowledge to meet basic requirements of the operator’s licence is sadly absent. The inevitable conclusion is that the operators are not fit to manage a regulated operation. Following the Court of Appeal judgment in Coach Hire Surrey Ltd & Paul Jones v TC for London and the South East & the Secretary of State for Transport [2020] EWCA Civ 1706, I have given very serious consideration as to whether I should disqualify these operators from holding an operator’s licence in future. The seriousness of the failings would militate in favour of that type of direction. I have, exceptionally, not made an order for disqualification here. In reaching that decision I have taken account of the revocation on the business. The company has lodged an application, but following my findings above, there can be little doubt that with the current state of Mr and Mrs Norman’s knowledge, the company will struggle to demonstrate its fitness. Significant action is required. I cannot allow the situation to remain. The revocation of this licence will come into effect on 23:45 on 18 March 2021 to allow an orderly run down.

Richard Turfitt

Traffic Commissioner

4 March 2021