Decision

Decision for Paul Thomas Removals Ltd

Published 20 January 2022

0.1 WEST MIDLANDS TRAFFIC AREA

1. DECISION OF THE TRAFFIC COMMISSIONER

2. PUBLIC INQUIRY HELD ON 7 DECEMBER 2021

2.1 OPERATOR: PAUL THOMAS REMOVALS LTD

2.2 LICENCE OD1108882

3. Background

Paul Thomas Removals Ltd holds a standard national goods vehicle operator licence (OD1108882) for seven vehicles (six currently in possession). The licence was granted in 2012. The sole director of the company is Paul Thomas: Mr Thomas is also the nominated transport manager on the licence.

In August 2019 DVSA carried out a maintenance investigation into the operator. The report was marked “unsatisfactory” for the following reasons:

• vehicle M70 VED had incurred a delayed prohibition for a fractured brake disc;

• tyre pressures were not being recorded on the inspection sheets, and the vehicles’ mileage reading was sometimes omitted too;

• the inspection interval had gone beyond the stated 10 weeks on two occasions;

• the forward planner did not project six months ahead;

• the MOT failure rate, 33%, was around double the national average.

The operator provided assurances about better performance in the future and I issued a warning letter on 2 October 2019.

In August 2021 I received a report from DVSA traffic examiner Tracey Lowe. She had carried out an investigation into the operator from November 2020 onwards and had found various issues:

• downloads of vehicle tachograph units and driver cards had not been carried out for most of 2020;

• analogue tachograph charts were not returned by drivers or analysed by the operator for most of 2020;

• two drivers had not been in possession of a tachograph card yet had driven digital tachograph vehicles for extensive periods;

• other drivers had been pulling their cards and driving without one, undetected by the operator;

• there was no system in place for identifying or dealing with driver’s hours infringements;

• vehicle PO58 DCX, stopped at the roadside by DVSA on 23 November 2020, had been out of MOT since 30 September 2020, almost two months previously;

• DVSA had checked the operator’s other vehicles and found that vehicle M50 VED had also been out of MOT since 31 October 2020;

• director and transport manager Paul Thomas had been absent through illness from March 2020 until shortly before interviewed by DVSA on 27 April 2021. He accepted that he had left the business in the hands of unqualified people and that they had just been left to “muddle through”.

In September 2021 I received a report from DVSA vehicle examiner Adrian Seadon. His resulting report marked the operator “report to OTC” as a result of the following issues found during his visit on 21 July 2021:

• vehicles had numerous defects at the ten week safety inspections. M50 VED, for instance, had 77 defects identified at a safety inspection on 22 January 2021. M70 VED had 66 defects identified at a safety inspection on 22 May 2021. The vehicles were all over 12 years of age, making the recommended inspection interval six weeks, rather than the ten chosen by the operator. The ten week interval was clearly too long, given the sheer number of defects arising between one inspection and the next;

• no form of brake test had been carried out on vehicles throughout 2020 by the former maintenance provider;

• many of the defects arising should have been spotted by drivers on their daily walk-round checks. The driver defect reporting system was clearly wholly ineffective;

• annual MOT initial failure rate was now at 50%, with final failure rate at 33%, both significantly above the national average;

• a vehicle had been issued with an S-marked prohibition (denoting a serious failure of maintenance) for the rear steered axle being permanently in the raised position. The rear shock absorbers had been removed and replaced with metal bars, thus preventing the rear wheels from touching the ground. This defect had been reported twice at successive safety inspections by the operator’s new maintenance provider. The vehicle in question had also had a seriously deflated tyre. There had been two other vehicle prohibitions in the last two years;

• dangerous defects had been found on 40% of all inspections; 28% of inspections were late (more than 10 weeks); just over half of all inspection sheets were not fully completed

4. Public inquiry

On receipt of Tracey Lowe’s report in August 2021, I decided to call the operator to a public inquiry. Shortly after I had done so, I received Adrian Seadon’s report and decided to postpone the inquiry, originally scheduled for 21 September 2021, so that both reports could be considered together. A new date of 7 December 2021 was set.

The inquiry was duly held in Birmingham on 7 December 2021. Present were director and transport manager Paul Thomas, Jeremy Woodcraft, solicitor, representing the company, DVSA vehicle examiner Andrew Jones and DVSA traffic examiner Tracey Lowe. Five drivers also attended parallel driver conduct hearings to consider instances of driving without a tachograph card. The outcome of these conduct hearings is recorded elsewhere: all drivers received suspensions of their LGV driving entitlement for periods ranging from two weeks to four months.

Paul Thomas had sent in prior written submissions, for which I was grateful. He made the following points (I have summarised the main ones):

• before suffering ill health in March 2020 he had run a generally compliant operation;

• the first Covid lockdown in 2020 had suspended all removal operations for a while; furloughs and the need for some drivers to isolate had created confusion for much of the rest of the year;

• the fact that two vehicles were operated out of MOT arose from a misunderstanding about MOT extensions during Covid;

• Jim, the yard foreman to whom he had entrusted some aspects of vehicle and driver management, had himself been absent through illness for a long period of time;

• Mr Thomas had trusted his (previous) maintenance provider to fix a problem with M70 VED: the maintainer had bolted the rear axle into the upright position. The new maintenance provider had highlighted the issue on inspection sheets dated 13 March and 25 May 2021 and had marked it “discuss with customer”. Mr Thomas had discussed it and the outcome was that the maintainer put a new axle on order. But meanwhile the maintainer had signed off the vehicle as roadworthy so Mr Thomas had assumed it could continue to be operated;

• the previous maintenance provider had admittedly been of poor quality but a new provider had now been found and since its appointment the MOT pass rate was 100%;

• he had thought that a safety inspection interval of 10 weeks was appropriate because of the vehicles’ low mileage but accepted that, because of their age, six weeks was more appropriate;

• safety inspection intervals had been stretched beyond 10 weeks on occasions in 2020 as Mr Thomas had not been there to supervise matters;

• after the traffic examiner’s visit he had engaged TMS Nottingham in late 2020 to provide a tachograph analysis service. However, they had not provided any assistance beyond the simple analysis, so he had switched to TMS Bristol (unrelated) who were giving much fuller assistance with compliance;

• Mr Thomas had undertaken a two day transport manager CPC refresher course in May 2021. He was now back in the office after his illness.

Mr Thomas confirmed these points in the public inquiry. He pointed to improvements in the MOT pass rate and in the prohibition rate: no vehicles had been prohibited when VE Seadon had inspected them on his visit. He had not realised that two drivers lacked a driver tachograph card: things had been too busy to do downloads. He had not been around in the office at the time the two MOTs expired. He had recently introduced an app for electronic driver defect checks and had started to carry out random checks on drivers.

VE Andrew Jones stated that the axle modification would have had a deleterious effect on the vehicle’s suspension. The vehicle was in a dangerous condition.

Jeremy Woodcraft said that there was much mitigation: Mr Thomas’s illness, the chaotic Covid months with others going ill. DVSA had commented that Mr Thomas and his staff had been very co-operative with their investigations; Mr Thomas had sought new assistance in the form of new maintenance and tachograph analysis providers. Mr Thomas took pride in his role as a transport manager: it was accepted that there was a question mark over his continuous and effective management of the business in 2020, but this year had been highly atypical. This was an operator whom I could trust to comply in the future: the green shoots of improvement were already there although there was room for further progress. The level of compliance was more in the “serious” category than the “severe” one defined in the senior traffic commissioner’s guidelines. It might justify a curtailment or a short suspension. But it was hoped that both company and transport manager would retain their good repute.

5. Findings

Having considered all the evidence before me, I make the following findings:

• the operator’s vehicles have incurred prohibitions (Section 26(1)(c)(iii) of the 1995 Act refers). There have been three roadworthiness prohibitions since August 2019. As well as the S-marked prohibition noted above, there has been a delayed prohibition for a fractured brake disc and a delayed prohibition for an ABS warning light fault and a missing registration plate light;

• the operator has failed to fulfil its promise that vehicles would be given safety inspections every ten weeks (Section 26(1)(e) of the 1995 Act refers. According to the DVSA report, over one quarter of inspections were late. Even ten weeks was too great an interval for inspections, given the age of the vehicles and their very poor condition revealed at inspection;

• the operator has failed to fulfil its undertakings (Section 26(1)(f) of the 1995 Act refers):-

a) to ensure that vehicles would be kept fit and serviceable. The MOT first time pass rate (64% over the past five years) is well below the national average (85%). The condition of some of the vehicles at their ten week inspections is truly shocking: I have never seen a safety inspection sheet with 77 defects on it before. Vehicle M70 VED, the subject of the S-marked prohibition in June 2021, was in an illegal and dangerous condition. The operator was aware that something needed to be done, but had failed to act on the advice given on consecutive safety inspection sheets;

b) to ensure the observance of rules relating to drivers’ hours and tachographs. No downloads of driver cards or tachograph units or analyses of drivers were carried out after March 2020 for the rest of the year, although vehicles continued to operate throughout most of that period. The result was that two drivers were able to drive without cards for extensive periods of time undetected by the operator. Other drivers pulled their cards in an attempt to disguise drivers’ hours offences – again undetected. Drivers’ hours infringements were neither identified nor addressed during that entire period;

c) to ensure that drivers report defects promptly in writing. The numerous driver detectable defects on the periodic safety inspection reports (and on the vehicles at the times they have incurred prohibitions) show that drivers were failing to identify and record what should have been obvious defects;

d) to ensure that the laws relating to the driving and operation of vehicles were observed. Two vehicles were operated while out of MOT. I was unimpressed by Mr Thomas’s argument that the expiry date was confusing: the Covid extension dates for each individual vehicle can easily be looked up online.

e) Paul Thomas failed to exercise the required continuous and effective management from March 2020 for the rest of that year and throughout much of 2021. It was irresponsible of him to give an unqualified person “a few bull points” (as he said in evidence) and then to assume that everything was running fine. In reality, drivers’ hours rules went wholly unsupervised and vehicles were sent out on to the road in an appalling and dangerous condition. Even when Mr Thomas returned, he was “too busy” to carry out tachograph downloads. His good repute as a transport manager cannot survive such an abrogation of his responsibilities.

5.1 Balancing act

I carried out a balancing act. On the negative side of the balance are the above findings. I attach significant weight to the poor MOT record and vehicles being out of MOT, the S-marked prohibition and the generally very poor condition of the vehicles, the failure to have any kind of system for monitoring drivers’ hours, the absence of the transport manager and to the fact that the operator’s assurances of better compliance after the unsatisfactory maintenance investigation by DVSA in 2019 were not borne out in practice.

I looked for things on the positive side of the balance. I found it quite hard to see the green shoots of improvement to which Mr Woodcraft referred. Roller brake tests are now being carried out every other inspection. Inspection intervals are being reduced to six weeks. A tachograph analysis provider and a new maintenance provider have been engaged. Much of this is very recent and I am asked to take on trust that these measures will result in concrete improvements. The improved MOT pass rate was referred to – there were two first time passes out of three presentations in the calendar year 2021.

My conclusion is that these positives are too little and come too late and come nowhere near compensating for the wholesale failure to monitor drivers’ hours and keep vehicles in a safe condition found throughout most of 2020 and much of 2021. The operator had a chance to make improvements following the 2019 investigation and my resultant warning: it failed to do so. Instead, director and transport manager Paul Thomas absented himself for many months after March 2020 and took no effective measures to ensure that things were managed properly, by a qualified person, in his absence. The result was a threat to the safety of other road users and to fair competition against others in the sector who pay for maintenance at the appropriate intervals and for regular roller brake tests, do not operate unroadworthy vehicles, and exercise proper oversight of drivers’ hours.

I asked myself the Priority Freight question of how likely it is that the operator will comply in future. I conclude that this is highly unlikely. Because Paul Thomas’s assurances of future compliance in 2019 turned out to be baseless, I attach little weight to the same assurances given now. Even after his return to the office in April 2021 matters did not sufficiently improve: I remind myself that the S-marked prohibition was incurred in June 2021 and a vehicle was found to have 66 defects at a safety inspection in May 2021.

A negative answer to the Priority Freight questions tends to suggest an affirmative answer to the Bryan Haulage question of whether the operator deserves to go out of business. In this case the failure has been so extensive and for such a long duration that I conclude that it does.

6. Decisions

6.1 Transport manager

Having concluded that Paul Thomas is not of good repute as a transport manager, I am obliged to disqualify him under paragraph 16 of Schedule 3 to the 1995 Act from acting as a transport manager on any licence. Because of the seriousness of his shortcomings and his negligent conduct in confiding the operation to a person or persons manifestly incapable of assuring safety and compliance, I am disqualifying him for a period of two years.

6.2 Operator

I have concluded that the operator’s transport manager lacks good repute (Section 27(1)(b) of the 1995 Act refers) and disqualified him. The operator therefore lacks the required professional competence and revocation of the licence is mandatory under Section 27(1)(a). I am not prepared, given the operator’s widespread failings, to allow a period of grace beyond the 28 day period before revocation takes effect. For the avoidance of doubt, the failings were serious enough also to warrant revocation under Section 26(1)(c)(iii), (e) and (f). The revocation takes effect at 0001 hours on 7 February 2022.

6.3 Disqualification from holding a licence

Owing to pressure of time (the inquiry lasted more than four hours and was abutting against another) I did not raise the issue of disqualification. I am therefore not making a disqualification order under Section 28 against Mr Thomas or the company on this occasion. However, I warn them that a simple submission of a new application is likely to fail. A new, competent transport manager with proven experience and a new, or at least additional director, together with evidence that the company at last understands that maintenance and safety are not a secondary issue, is the least that is likely to be required.

Nicholas Denton

Traffic Commissioner

6 January 2022