Decision

Decision for Razeghi Ltd (OF2029439) and Stephen Davies (Transport Manager)

Published 24 August 2023

0.1 In the Eastern Traffic Area

1. Traffic Commissioner’s Written Decision

1.1 Razeghi Ltd (OF2029439) and Stephen Davies (Transport Manager)

2. Background

Razeghi Ltd holds a Standard International Goods Vehicle Operator’s Licence authorising 5 vehicles and 4 trailers. The Director is Abolfazl Razeghi. The current Transport Manager listed on this licence is Stephen Davies since his appointment on 26 January 2021. He apparently attended a recent two-day refresher course with Fleet Planner on 27 and 28 April 2023.

There is one Operating Centre at D & S Titu Services Ltd, Kings Road, Canvey Island SS8 0QY. Preventative Maintenance Inspections are said to be carried out by DBS Commercials Ltd and TTS Ltd at 6-weekly intervals. I was told that the operator was not satisfied with TTS (see below) and had decided to engage Alpha Omega Fleet Services which offers Volvo expertise from premises in Grays and from a van. However, there are no brake test facilities. The change has yet to be notified.

The operator previously held OK1137356, authorising 3 vehicles and 4 trailers, until its surrender. The operator attended a Public Inquiry on 10 December 2020 (see below). Mr Razeghi was replaced as Transport Manager, a further maintenance provider was added, and the licence curtailed for a period. Stephen Davies, who was then advising the operator as a transport consultant, was appointed. He has acted in that capacity for Haulystic Limited (OK2047958) since 11 November 2021 and for E-Commerce Logistics (OK2052343) since grant on 4 April 2022. No adverse findings were recorded against him in respect of his involvement with Super Speedy Transport Ltd (OK2013271). He has also declared that he works 36 hours a week with Getir as a Logistics Manager.

3. Hearing

The Public Inquiry was listed for today, 3 May 2023, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. Director, Abolfazl Razeghi and Transport Manager, Stephen Davies, were present.

4. 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 Goods Vehicle (Licensing of Operators) Act:

• 26(1)(b) – conditions on licence to notify changes, in this case relating to the Transport Manager.

• 26(1)(c)(iii) – prohibitions.

• 26(1)(e) – statements relating to inspection intervals, and to abide by conditions on the licence.

• 26(1)(f) – undertakings (vehicle to be kept fit and serviceable, driver defect reporting, complete maintenance records)

• 26(1)(h) – material change:

• 27(1)(a) – repute, financial standing and the involvement of a Transport Manager meeting Schedule 3.

• 28 – Disqualification.

Stephen Davies was called separately to consider his repute as Transport Manager, under section 27(1)(b) and Schedule 3. He was put on notice of the power to disqualify him from relying on his Certificate of Professional Competence.

The operator was directed to lodge evidence in support by 19 April 2023, including financial, maintenance and other compliance documentation. It failed to comply with those directions. Financial documentation was eventually received and confirmed its financial standing.

5. Summary of Evidence

The operator attended a previous Public Inquiry on 10 December 2020, following an unsatisfactory maintenance investigation which identified:

• inconsistent completion of records,

• systems and procedures missing, including VOR and vehicle recall,

• driver defect recording not completed.

• issues with wheel security,

• delays on vehicle inspection intervals,

• 3 Prohibition Notices between March 2020 and December 2020.

The decision letter did not communicate the factual findings, but the Deputy Traffic Commissioner noted improvement in systems to address the failings identified by the Traffic Examiner. It also recorded the involvement of a transport consultant and that driver training had not been undertaken. I infer that the Transport Manager was found to lack capacity or capability as he was to be replaced by the transport consultant. The Deputy Traffic Commissioner curtailed the operator’s licence for a short period.

DVSA was said to have attempted unannounced visit to the Operating Centre, but failed to gain entry as the premises were locked and unstaffed. An announced visit was then arranged for 10 November 2021. The Maintenance Investigation Report records the following areas of concern:

• Inspection records were missing, with no clear record of rectification, no roller brake performance testing, very few records of tyre condition,

• Ineffective Vehicle Off-Road system, and inspection intervals exceeded.

• Weak driver defect reporting as rectification not recorded.

• Poor annual test history, featuring safety critical defect failures.
• No recording of vehicle emissions.
• Ineffective system for wheel security- e.g., no wheel nut markers fitted.
• No evidence of load security training.

The operator provided a response on 11 November 2021 by e-mail. In the response, the operator committed to rectifying all of shortcomings identified, including the introduction of roller brake testing, enforcing inspection intervals, to ensure equipment safety, a wheel safety policy and training.

The follow-up Desk-Based Assessment undertaken in October 2022 found that very little, if any, improvement had been made. On that occasion the Examiner was concerned as to how Mr Davies was fulfilling his responsibilities. the DBA referred to a prohibition issued to trailer C332341 on 24 May 2022. No report or evidence of an investigation into the cause of the prohibition or measures to prevent re-occurrence was provided.

The operator failed to comply with the Directions and only managed to lodge documentation on the afternoon before the hearing. Immediately before the hearing I saw photographs of tyre gages, an Adblue IBC, and a rack of spare parts. Dip sampling of the records disclosed the following:

5.1 KX66 NAU

• 8 April 2023 – inspection with unladen decelorometer (Bowmonk) brake test but no printout: 119% and 86%, not fully signed-off. It also records defective wings and tyres with no discernible driver defect report.
• 25 February 2023 – inspection with decelorometer brake test but no printout: 98% and 83%, not fully signed-off. It also records defective tyres and reflector with no discernible driver defect report.
• 14 January 2023 – inspection with unladen decelorometer brake test but no printout: 118% and 91%, after work on discs and pads but not fully signed-off.
• 3 December 2022 – inspection with unladen decelorometer brake test but no printout: 107% and 90%, but not fully signed-off. It also records defective wipers with no discernible driver defect report.
• 22 October 2022 – inspection with unladen decelorometer brake test but no printout: 102% and 74%. It also records an Adblue fault with no discernible driver defect report.

5.2 HM15 ZFG

• 7 April 2023 – inspection with unladen decelorometer brake test but no printout: 116% and 94%, but not fully signed-off. It also records defective tachograph and an oil leak with no discernible driver defect report.
• 25 February 2023 – inspection with unladen decelorometer brake test but no printout: 112% and 92%, but not fully signed-off. It also records a defective tyre with no discernible driver defect report.
• 14 January 2023 – inspection with unladen decelorometer brake test but no printout: 112% and 91%, and after report on axle pad, but not fully signed-off.
• 3 December 2022 – inspection with unladen decelorometer brake test but no printout: 114% and 89%, but not fully signed-off. It also records a defective tyre with no discernible driver defect report.
• 22 October 2022 – inspection with unladen decelorometer brake test but no printout: 119% and 95%, but not fully signed-off.

5.3 C294019

• 28 January 2023 – inspection (13+ weeks before the hearing) with a ‘static test’ on brakes.
• 17 December 2022 – inspection with a ‘static test’ on brakes. It also records a defective tyre with no discernible driver defect report.

I took oral evidence on the few roller brake tests which have been completed. That indicated that service and other brakes frequently failed to reach the required performance level. The brake testing was not occurring frequently enough or as per the operator’s previous assurances. Mr Davies appeared to be aware of the recent DVSA guidance but again, there was a failure to ensure that the contractors delivered what was required. Fir the avoidance of doubt, the 2023 issue of the Guide to Maintaining Roadworthiness advises as follows:

5.3 Braking performance assessment

A high percentage of MOT braking defects are only found during a braking performance test; therefore, every safety inspection must assess the braking performance of the vehicle or trailer.

An Electronic Braking Performance Monitoring System (EBPMS) may be used to monitor in-service braking performance and provide a braking performance report for the safety inspection (for further details see section 5.4 EBPMS).

Where EBPMS is not being used a calibrated roller brake test is the most effective method of measuring individual and overall braking efficiencies. A plate brake testing device may also be suitable depending upon the design of the equipment.

It is acceptable to use an approved and calibrated decelerometer to measure overall brake efficiency values for rigid vehicles without trailers or for vehicles that cannot be tested on an RBT. A decelerometer will measure the overall brake efficiency but it may not identify individual braking issues. A temperature check needs to be carried out at the same time as a decelerometer test to help identify if individual brakes are operational. Brake temperature readings would need to be well above ambient temperature with relatively consistent readings taken for each brake across an axle. Brakes which are cold (ambient temperature) or showing an inconsistent reading from the brake on the opposite side on the same axle, need to be investigated further.

Where possible brake testing should be undertaken with the vehicle or trailer in a laden condition to achieve the most meaningful results. A competent person may carry out a risk assessment based on use, working conditions, mileage and the age of vehicle to determine if some of the brake tests carried out in the year can be unladen; however, it is strongly recommended that at least 4 of the brake tests carried out are laden. Risk assessments need to be retained on file and made available for inspection.

From 1st January 2023 vehicles and trailers must be appropriately laden when presented for annual test.

From April 2025 there will be an expectation that a laden roller brake test or EBPMS will be the only accepted methods to assess brake performance. More information regarding brake testing and the use of RBT’s can be found in this best practice guide:

Small trailers up to 3.5t with overrun brakes should normally be tested using one or a combination of the following methods. 1. A static test where the trailer is jacked up3 and the hand brake is applied progressively to check the brake application on each wheel.

In evidence, the Director and Transport Manager confirmed that the drivers are self-employed. That lack of control is reflected in their apparent refusal to use the Trutac App which had been engaged by the Transport Manager. The Director suggested that there may be a language barrier as they are either Romanian or Bulgarian, but the App allows for translations. The few paper records I saw suggested that the drivers viewed the walk round check as a tick box exercise and this was confirmed by the Transport Manager. There is a lack of control and disciplinary processes have not been engaged, mainly due to their employment status. It led me to seriously question howe the Transport Manager can exercise effective and continuous management. The drivers have instead been permitted to email the Director with a photograph when they report a defect. He has taken responsibility for walking round the vehicles rather than the drivers but much of the remedial work has not been recorded. The inspection records give examples of where deriver detectable defects have not been identified as part of the driver defect reporting system. I had similar concerns about the retorque recording. The yellow cards produced by All Night Tyres Ltd have not always been retained and, whilst there might be fortnightly checks, there was no record of retorquing after a wheel had been removed.

Mr Davies was very frank about the monitoring of drivers’ hours and working time compliance. He described two of the drivers as meeting expectations but the other two do not. There appears to be an issue with the use of the mode switch and following instructions.

6. Determination

Based on the evidence summarised above, I was satisfied that I should make adverse findings under the following sections: 26(1)(b) – conditions on licence to notify changes relating to maintenance and the ability of the Transport Manager to discharge Schedule 3, 26(1)(c)(iii) – prohibitions, 26(1)(e) – statements relating to inspection intervals, and to abide by conditions on the licence, 26(1)(f) – undertakings (vehicles and trailers to be kept fit and serviceable, to employ effective written driver defect reporting, to retain complete maintenance records for the required period of 15 months).

In 2019/54 Bridgestep Ltd & Tom Bridge, the Upper Tribunal referred to the practice of drivers classify themselves as self-employed. The Tribunal commented that the legitimacy or otherwise of a driver’s self-employment status is fact specific and as the Factsheet produced by the RHA on self-employment contained within the bundle makes clear: “Unless they are an owner-driver, it is very rare for a lorry driver to be legally “self-employed”. There was nothing before the Tribunal to confirm that the arrangement between the company and its drivers was compliant with the HMRC guidelines. The Upper Tribunal referred to a conscious decision to enter into an arrangement with the company’s drivers which was highly questionable if not a sham. The reasons for doing so were anti-competitive being as they were, concerned solely with the cost of employing the drivers and by reducing that cost, gaining a competitive advantage over other compliant operators. The Tribunal went on to describe the vast majority of operators making the right decision to employ their drivers, paying national insurance, pension contributions, holiday and sickness entitlement. The consequence in that case was that the company and Transport Manager felt unable to give any instruction to drivers whether it be in relation to route planning or otherwise and consequently, were unable to have continuous and effective management of the transport operation. That appears to be the case here. I also impressed upon the Director that this represents a potential advantage during a period when every operator has felt the impact of the driver shortage.

Transport Manager is paid via his consultancy company. That does not amount to a genuine link between the operator and named Transport Manager. The greatest concern is that he has not been able to exercise the statutory duty set out in Schedule 3 of the Act. He was left in no doubt as to the potential impact on his repute. He was not in position at the time of the last Public Inquiry, although he was acting as a consultant and should have been aware of the deficiencies. The performance above does not amount to effective or continuous management. Mr Davies is aware that this has now tarnished his repute. He has been warned as to the consequences if he allows this level of non-compliance to continue.

Mr Razeghi also holds a Certificate of Professional Competence, but that was not evident from the findings made above. He apparently concentrates on the condition of the vehicles but the failings here are far more than just an absence of paperwork, as the approach to the trailers further illustrates. There have been improvements such as the nozzle to monitor adblue usage, the use of wheel nut indicators, and the improvement in the annual tests during 2023. However, there were still far too many areas to address where compliance fell below the basic standard of the operator’s licence. I posed the question suggested by the Upper Tribunal 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? On current information I found that unlikely. The relevant features included: the engagement of drivers which amounts to an unfair commercial advantage with an attendant lack of control; persistent issues which remain to be resolved die to ineffective management control and systems; ineffective driver monitoring, and insufficient changes made to ensure future compliance. The prohibition rate remains at 25%, with an annual test failure rate of 14.29%, although there has been some improvement. This is the operator’s second Public Inquiry. All those elements suggested that the case fell within the Serious to Severe category by reference to the Senior Traffic Commissioner’s Statutory Document No. 10. A number of assurances were given but, if there is no improvement, the operator must be removed from the industry. The failure to act on previous interventions means that deterrent action was required. I therefore revoked the licence under section 27(1)(a) and made that finding against the operator’s response. Any credit is reflected in the decision not to disqualify and in setting the revocation date so that the operator might reapply if it has fully addressed all the deficiencies above. The onus will then be on the applicant. This licence will be revoked from 23:45 on 12 July 2023.

R Turfitt

Traffic Commissioner

3 May 2023