Decision

Decision for Miami Motors Ltd and Transport Manager Brian William Parkins

Published 24 February 2023

1. IN THE EASTERN TRAFFIC AREA

2. MIAMI MOTORS LTD – PF0002426

AND

3. BRIAN WILLIAM PARKINS – TRANSPORT MANAGER

4. CONFIRMATION OF THE TRAFFIC COMMISSIONER’S DECISION

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5. Background

Miami Motors Ltd holds a Standard International Public Service Vehicle Operator’s Licence authorising 6 vehicles. The Director is Brian William Parkins who also acts as the Transport Manager.

There is one Operating Centre at Hyde Lane, Nash Mills, Hemel Hempstead HP3 8SA. Preventative Maintenance Inspections are said to be carried out by Commercial Motors (Watford) Ltd and HTC Hemel at 12-weekly intervals, although I noted several invoices from Northern Commercials (Mirfield) Ltd and GB Fleet Maintenance Ltd. I saw an unsigned contract dated 7 February 2023 and contrast that with the dates of inspection of SN08 RKO. I also noted the age of the vehicles: YN57 AAU and SN08 RKO.

6. Hearing

The Public Inquiry was listed for today, 20 February 2023, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was present in the form of Mr Parkins, accompanied by Mrs Parkins, the company secretary. The Vehicle Examiner, Joseph Quargraine, also attended to give evidence.

7. 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 Service Vehicles Act 1981:

• 17(3)(aa) – undertakings to comply with the laws relating to driving and operation of the vehicles and that vehicles would be kept fit & serviceable;

• 17(3)(b) – condition to notify relevant changes.

• 17(3)(c) – prohibitions.

• 17(3)(e) – material change;

• 17(1)(a) – repute, financial standing, and professional competence.

• 28 of the Transport Act 1985 – Disqualification.

Mr Parkins was called to consider whether he has exercised effective and continuous management of the transport operation and whether I should make a finding against his repute, preventing him from relying on his Certificate of Professional Competence, under section 17(1)(b).

The operator was directed to lodge evidence in support by 4 February 2023, including financial, maintenance and other compliance documentation. However, financial evidence was not acceptable. The operator decided to lodge only one month of statements and attempted to redact those. It was advised that this evidence was not admissible in that form. It again failed to produce the full financial evidence when Mr Parkins appeared at the Public Inquiry. Pursuant to a finding under section 17(1)(a), I granted a Period of Grace of 4 weeks to supply the evidence to show financial standing by reference to a three-month average. The Director was warned as to the consequences if the operator fails to show the requirement within the given period.

8. Summary of Evidence

T360 PNV was the subject of an annual test on 15 December 2020, when it was noticed that the exhaust emissions value stamped on the manufacture’s plate (2.93) may have been changed by persons unknown. It was later confirmed with the vehicle manufacturer that the correct value should have been 1.19.

On 25 January 2021, the Vehicle Examiner, Mr Quargraine, sent a letter to the operator requesting documentation to conduct a Desk Based Assessment. The operator duly complied. The assessment identified the following alleged shortcomings:

• no evidence of wheel retorque processes

• the incorrect emission plate value

• Preventative Maintenance Inspection on 10 December 2020 recorded nearside track rod end worn. The vehicle then failed at annual test on 15 December 2020 on steering systems

• 1 of 5 Preventative Maintenance Inspections failed to record a brake test.

• The remainder have no secondary brake performance figures implying that the operator relies on decelerometer tests

• roadworthiness declarations not signed

• operator subject to 1 roadside encounter resulting in 1 delayed prohibition relating to an EBS light

On 12 May 2021, DVSA requested a written explanation for the incorrect exhaust emissions value stamped on the manufacturer’s plate. The operator’s response dated 26 May 2021 suggested that DVSA had not responded to a letter of 4 February 2021. For some reason the operator suggested that: “As some 100 days have now elapsed without any communication, so it has to be concluded that there are no matters arising and all communications are hereby finalised.” The operator, therefore, failed to provide an explanation.

On 22 July 2022, the operator was notified of the intention to complete a maintenance assessment on 3 August 2022 at the testing centre at Yeading. This followed an unannounced visit to the Operating Centre on 20 July 2022 when the operator was absent. The appointment was later rearranged to take place at the Operating Centre and the Examiner met with Mr Parkins and the Company Secretary, Inna Parkins. The Maintenance Investigation Visit Report was mostly satisfactory, save for the following:

• Part 6 – inspection & maintenance: was unsatisfactory in view of the failure of vehicle T360 PNV to pass its annual test in December 2020, with the steering defect marked as safety critical.

• Part 4 (inspection/maintenance records) marked as ‘unanswered questions’ although there are more details in the body of the report. In evidence, Mr Quargraine explained that this related to safety recall systems.

• Section 9 is empty but marked satisfactory.

• Part 7 – vehicle emissions: scored as ‘report to OTC’: annual test on 15 December 2020, recorded that the plate on vehicle T360 PNV ‘had been changed’. The vehicle was therefore tested to the plated figure of 2.93 and recorded a figure of 1.53. The vehicle manufacturer was contacted as part of the investigation and confirmed that the plated figure was likely to have been 1.19; the manufacturer commented it had had no vehicles at that time with as high a plated figure as 2.93. The same vehicle had failed the emissions test at annual test on 6 August 2019.

The operator was advised of the benefits of attending Transport Manager refresher training, to keep a wheel re-torque register and tyre check logs (Mr Quargraine supplied a copy); to record adblue usage; and to remove T360 PNV from its licence, as it had been sold. Advice was also given in respect of the safety defect/ recall and incident reporting systems. A letter was received from the operator on 5 August 2022, addressed to my colleague, Miss Bell, Traffic Commissioner for London and the South East, apparently complaining about DVSA and suggesting that he would not then engage with the Examiner:

• he was receiving ‘poor service and harassment’ from her staff.

• he had received the initial request for information by letter in January 2021, which he replied to on 4 February 2021 asking for ‘conclusion within 10 days’

• he received no acknowledgement and after 100 days wrote again to Mr Quargraine on 26 May 2021, but again received no reply

• he had now ‘received on 22 July 2022 a letter dated 27 July 2022’ to arrange an assessment on 3 August, after which he rang to arrange a visit to his Operating Centre.

• he received a letter dated 22 July 2022 on 26 July 2022, asking him to attend Yeading with two vehicles, also on 3 August 2022

• he referred to this man ‘changing arrangements and requests quicker than clocks tick and is not even aware of the correct date’.

• he could not attend Yeading on 3 August with two vehicles as it is in the LEZ zone and would cost £100 each with total fuel cost £120 and 6 hours of drivers’ time

• he demands a reason for this ‘ongoing harassment so soon after last year’s fiasco’.

I was told that the operator requested a further visit, which was conducted on 19 August 2022, when Mr Quargraine offered ‘advice and guidance again’ in respect of the Guide to Maintaining Roadworthiness.

The operator responded to the maintenance report on 24 August 2022:

• the operator relies on contractors to conduct and advise on maintenance and inspections. He questioned why he was held responsible for a late inspection during lockdown and SN08 RKO was off-road. The contractor had been instructed to complete any work required pre-annual test. It was the contractor’s fault for not checking the horn leading to the annual test failure. The contractor is paid to do the work. He had persevered with a local DAF dealer who was not keen on coaches, had tried another garage and is now entering agreement with a major coach operator.

• he denied the record at annual test in December 2020 that ‘the drag link was fouling mounting plate’ was not the case, it was only ‘lightly brushing the mounting plate’ on extreme lock. There had been no problem throughout the previous 8 years. Mr Parkins continued to argue this point at the hearing but had failed to query the test result with DVSA management.

• the exhaust emission figure of 1.53 was low.

• this vehicle was disposed on in July 2021.

• he will undertake a refresher course. In evidence I was told that the operator had decided not to act, pending the outcome of this hearing.

Based on the above evidence, my colleague determined that the operator be given the opportunity to make representations at a Public Inquiry. I was therefore interested to see the compliance documentation. In evidence Mr Parkins told me of his efforts to identify a suitable and reliable maintenance contractor. He accepted that he failed to notify me of those changes and appeared unaware of the condition on the licence to do so. He was adamant as to the standards now employed, but my dip sampling disclosed the following: YN57 AAU carried out by Northern Commercials Ltd

• 14 November 2022 – inspection with brake test, but only 76% service and 25% parking – no printout supplied.

• 23 August 2022 – inspection with brake test, but only 73% service and 35% parking – no printout supplied. It also records brake pedal rubber pad worn but no discernible driver defect report.

• 14 June 2022 – inspection with brake test on 17 June 2022: 80%, 43%, 40% - no printout supplied. It also records that the number plate lamp is inoperative but no discernible driver defect report.

• 2 March 2022 – inspection (19+ weeks since the previous) with brake test, but only 62% service and 31% parking – no printout supplied.

• 18 October 2021 inspection (17 weeks since the previous) with brake test, but only 75% service and 20% parking – no printout supplied.

I saw evidence of planning with a ‘maintenance chart’ for inspections only. I saw another log, which went to explain the gaps in inspection records. The driver defect reporting system appears to consist of a notebook recording dates of walk round, odometer readings and any rectification (undated). A bulb was replaced on 11 December 2022.

SN08 RKO carried out by GB Fleet Maintenance Ltd again using an electronic format.

• 16 December 2022 – inspection with brake test: 67%, 41%, 39%, recorded as unladen but no printout supplied.

• 9 November 2022 – inspection (12+ weeks since the previous) with brake test: 60%, 35%, 37%, recorded as unladen but no printout supplied.

• 12 August 2022 – inspection with brake test: 58%, 37%, 44%, recorded as unladen but no printout supplied.

• 25 May 2022 – inspection with brake: 66%, 36%, 43%, recorded as unladen but no printout supplied.

• 5 April 2022 – inspection (24+ weeks since the previous) with brake test, but only 71% service and 41% parking, despite the EBS light on the dash (subsequently submitted to Osbourn Transport Services Ltd) but no printout supplied. It also records a reversing light is inoperative but no discernible driver defect report.

• 14 October 2021 – inspection with brake test: 50%, 30%, 39%.

Again, the driver defect reporting system consists of a notebook recording dates of walk round, odometer readings and any rectification (undated) – tyre and tachograph calibration. I saw a wheel torque register entry for this vehicle dated 12 August 2022.

Those drivers’ hours records which were produced suggest that vehicles are driven by Brian William Parkins and Inna Parkins. The Working Time Driver Weekly Analyses supplied do not appear to record any other work for either driver. Where other work is recorded on the Daily Driver Activity Protocol these appear to be usually a matter of minutes prior to periods of operation suggesting that either the driver’s walk round has not been recorded or that walk round was no more than cursory.

9. Determination

On the basis of the evidence summarised above, I was satisfied that I should record adverse findings under the following sections: 17(3)(aa) – undertakings to comply with the laws relating to driving and operation of the vehicles and that vehicles would be kept fit & serviceable; 17(3)(b) – condition to notify relevant changes; 17(3)(c) – prohibitions, albeit now historic; and 17(3)(e) – material change.

Mr Parkins referred to his long experience as an engineer and to his commitment to his clients. He referred to difficulties in having inspections during the pandemic but appeared unaware of the Contingency Statutory Document and accompanying guidance issued for those eventualities. The absence of secondary brake test results and the printouts appeared to come as a genuine surprise to him. The driver defect reporting system, such as it was, demonstrated its own deficiencies. He was driving when the delayed prohibition was issued. Mr Parkins failed to record the illuminated ‘orange’ light. I regret that Mr Parkins presented as being content to challenge others without looking at his own performance against the basic requirements of the operator’s licence, which other coach operators strive to meet.

Having been referred to the Guide to Maintaining Roadworthiness by the Vehicle Examiner, the absence to act was potentially inexplicable. Mrs Parkins sought to assure me that the lessons have been learned. Mr Parkins needs to apply his experience to ensure that the operator retains full maintenance records including brake tests and an effective written driver defect report, as well as drivers’ hours recording and working time compliance. It is not enough to simply delegate that away to suppliers as the operator gave promises to comply with those requirements. In addition Mr Parkins was responsible for effective and continuous management as Transport Manager. For the reasons recorded here and above, I was satisfied that he had not met that statutory duty and was not currently able to do so. I recorded that adverse finding under section 17(1)(b) and 17(1)(a). I allowed the operator a Period of Grace of two months to appoint a Transport Manager capable of meeting the requirements of Schedule 3. I indicated that he would need to attend a two-day Transport Manager CPC refresher course run by a trade association (e.g. RHA /CPT), a professional body (IoTA/CILT/SOE/IRTE) or an exam centre approved by an accredited body to offer the transport manager CPC qualification in passenger transport. I accepted an undertaking that Mrs Parkins (who has her own CPC) would also attend. The operator can then decide who to nominate.

In the absence of a Transport Manager, it was difficult to reach a positive view in response to the question posed by the appellate Tribunal in the appeal 2009/225 Priority Freight, namely: how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime? I noted the prospect of Mrs Parkins assuming additional duties. I also weighed into the balance further undertakings, which I have accepted and added to the licence:

• The operator will maintain a list on the licensing record to confirm those vehicles being operated under this licence (currently YN57 AAU and SN08 RKO) and will notify changes within 28 days.

• Preventative Maintenance Inspections to be conducted at 6-weekly intervals, as per the Guide to Maintaining Roadworthiness referring to the age of the vehicles.

• There will be roller brake testing at every Preventative Maintenance Inspection, with a printout obtained after each inspection and reference made to current DVSA guidance on how to read the brake test printout.

• Driver defect reporting will use forms which refer to all the items referred to in the specimen PSV driver defect report, annexed to the Guide to Maintaining Roadworthiness

I took account of the difficult trading environment over the last few years and the change in business model, following departure from the European Union. However, there is a need to mark how close this operator came to loss of the licence. In 2019/025 John Stuart Strachan t/a Strachan Haulage, the Upper Tribunal confirmed the relevance of deterrent action: “one of the aims of the regime is deterrence, both for the appellant and for operators as a whole, who might be tempted to flout the system”. Several vehicles have been scrapped and sold. Only Mr and Mrs Parkins now drive. The business now concentrates on private hire, day trips and short holidays, such as a trip to Yarmouth last December. The licence was curtailed to a total authority of two vehicles. The operator was advised that this was a final chance to secure basic compliance and that its repute is severely tarnished. It is likely that DVSA will follow up on the above action, in which case I expect full cooperation. The operator was warned as to the possible consequences if it found not to be fully compliant given its commitments, as above.

R Turfitt

Traffic Commissioner

20 February 2023