Decision

Decision for RBT Logistics Ltd (OF2030618)

Published 18 December 2020

In the Eastern Traffic Area

Written Confirmation of the Traffic Commissioner’s Decision

1. Background

RBT Logistics Ltd seeks a Standard International Goods Vehicle Operator’s Licence, initially for an authority of 3 vehicles and 3 trailers. That application was received on 9 February 2020 but delayed by the coronavirus restrictions and further still by the actions of the applicant. The Director is Florin Stoica. The proposed holder of a Certificate of Professional Competence is Florin Pop.

There is one proposed Operating Centre: South 3, Pacific Avenue, Stanford Le Hope SS17 9FA. The applicant proposes to have maintenance conducted by L&R Vehicles Services with inspections due to take place every 6 weeks. I saw a copy of the agreement dated February 2020.

The Director was previously involved with Maya Logistics Ltd, which held OF1130796 from 25 July 2014 until its revocation on 9 November 2018 (page 81). The Office of the Traffic Commissioner was not informed of its insolvency on 17 January 2018.

2. Hearing

The Public Inquiry was listed for 5 August 2020. The operator was not present but represented by Mrs Michelle O’Garro of Woodfines Solicitors.

Due to the quick thinking of Mrs O’Garro, this office was alerted to the fact that the Director had driven the proposed Transport Manager to the tribunal, Mr Pop having arrived today from Romania. In those circumstances neither could be admitted to this building. It was possible to cancel the attendance of the interpreter.

The hearing was relisted for 1 October 2020 in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was present in the form of Mr Stoica, accompanied by Mr Pop, and represented by Mrs O’Garro. A tribunal appointed interpreter, Ms Christine-Bianca Hanganu was present. The language is Romanian.

3. Issues

The Public Inquiry was listed to allow the applicant opportunity to pursue its application and specifically in relation to the following sections of the Goods Vehicle (Licensing of Operators) Act 1995:

• 13A(2)(b) - good repute
• 13A(2)(c) - financial standing
• 13A(2)(d) - professional competence by reference to the nominated CPC holder and his ability to meet the statutory duty on a Transport Manager
• 13C - the systems for ensuring compliance with the requirements of an Operator’s Licence
• 13D – the finance required to support maintenance of relevant vehicles.

The call up letter is dated 8 July 2020 but the bundle of documents contains a series of correspondence to and from the licensing team of the OTC from 10 February 2020 culminating in the proposal to refuse dated 24 April 2020 (page 57), which summarises the concerns.

Financial evidence was requested to be lodged by 24 July 2020. Mrs O’Garro courteously put the tribunal on notice that this might be delayed, in her letter of 29 July 2020. Directions were given so that evidence should be submitted 7 days in advance. Representations were received on 3 August 2020. Financial Standing documentation was emailed to the Traffic Commissioner on the 24 July 2020. These are internet-based accounts.

At the aborted hearing I gave the applicant 7 days (12 August 2020) to consider whether it will pursue this application. This was subsequently confirmed by Mrs O’Garro.

4. Evidence

At the commencement of the substantive hearing I was advised by Mrs O’Garro that the applicant could not show financial standing for the authority sought. The applicant revised its application, seeking authority for a single vehicle. It relied on original bank statements for one bank account for July 2020 and unverified print outs for two accounts for August 2020. The applicant has been on notice of the requirement since at least 10 February 2020 (page 40). The published Statutory Directions in Statutory Document No 2, which the law obliges me to follow, clearly explain the requirement, as does the call up letter of 8 July 2020 (specifically page 6).

In advance, I was provided with representations, which confirmed that Mr Stoica was a Director of Maya Logistics Limited. It was working as a sub-contractor but encountered issues at the end of 2016. Mr Stoica took out a loan but eventually the Company went into administration and Mr Stoica filed for bankruptcy.

The evidence disclosed in advance referred to a failure to notify the OTC of material changes in respect of Maya Logistics Ltd (OF1130796) which equates to a failure to comply with the conditions and statement of intent on a licence for which Mr Stoica was responsible. This is all the more concerning as vehicle YG63FXY was added to that licence on 17 January 2018, i.e. the day when the operator became insolvent. The vehicle was then removed on 9 October 2018, when notification of a proposal to revoke was sent. I was told that it had been necessary to add the vehicle as the DVSA administered IT system did not allow him to remove all of the vehicles. Even that failed to prompt Mr Stoica to notify me of the change in financial status. I am told that Mr Stoica has learned the lesson.

I was concerned to hear about the proposed business model. He referred to instructions being provided to Mr Florin and any driver simultaneously. I was unclear how that would allow the applicant to retain control of the operation and the Transport Manager to meet the statutory duty for effective and continuous management of the transport undertaking. At present the Director acts through a driver agency to supply drivers to the proposed main customer, ATL Haulage Ltd. Mr Pop has been a driver for Drive 2B3 Ltd and ATL Haulage Ltd. All the agency drivers are ‘self-employed’. On advice and by reference to the Upper Tribunal case law: 2019/054 Bridgestep Ltd & Tom Bridge, 2019/069 GS Couriers (Nottingham) Ltd, he assured me that drivers for this operation would now be employees. That needs to be evidenced.

I saw an example of a driver defect sheet from a duplicate book but was concerned about how this would be used given Mr Pop’s request for an interpreter. In fact, as he confirmed in evidence, the interpreter was required to give him added confidence in his answers.

In representations I was assured that Mr Pop would be able to manage the proposed contractor, L R Vehicle Services. I was also provided with copies of the proposed Preventative Maintenance Inspection pro-forma, which is the type produced by the FTA (now Logistics UK). In evidence I heard that the applicant intends to hire rather than purchase a vehicle, but the applicant was unable to tell me how the vehicle would be inspected. That needs to be clarified with confirmation that Preventative Maintenance Inspection forms will be available before the vehicle goes back into operation. The Director thought that the vehicle might be subject to metered brake performance checks by way of a rolling road on four occasions during the year. He was unable to confirm how brake performance would be checked in the intervening period.

The proposed Transport Manager has not previously acted as a Transport Manager. Mr Pop shares an address with the Director of the applicant company. I have seen the translation of his Certificate of Professional Competence, which was granted by the Romanian competent authority on 15 September 2017. Mr Pop has indicated he can commit 10 hours per week with no other employment. However, the financial evidence submitted in support of the application and dating from January 2020 suggests that he was already receiving regular payments from the applicant even before the application was submitted. Those payments were connected to his driving, which he told me would cease if this application is granted. There is no contract in place to confirm this.

It was claimed that Mr Pop will have continuous and effective management for the licence. Mr Pop was unable to answer detailed questions regarding the loading of vehicles for inspections. I refer to the DVSA Guidance: Heavy vehicle brake test: best practice:

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

1. 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

The applicant and Mr Pop need to apply 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 also include 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?

The applicant proposes a Nil DDRS using the Microlise system. This also allows the applicant to see how many hours a driver has driven and the fuel efficiency of the vehicle or any hard braking. I was assured that there would not be any communication barrier on speaking or discipline with the drivers as they all speak Romanian and English. I was also assured that this would be this applicant’s system to manage.

5. Determination

On considering the above evidence the applicant amended its application, seeking time limited authority under section 24(6) for 1 vehicle. Relying on the prima facie evidence against the statutory criteria, I was persuaded to allow that limited authority until 23:45 29 January 2021 by which time the applicant must satisfy me to the civil standard of proof that the statutory criteria are met and specifically by reference to:

• Contract of employment for the driver(s);
• Contract of employment/services to confirm the full-time commitment of the Transport Manager;
• Maintenance contract(s) to confirm the availability of Preventative Maintenance Inspection forms before the vehicle goes back into operation, brake testing arrangements, which comply with current DVSA guidance;
• Financial evidence verified statements from the operational bank account(s) for the recent three-month period, the average of which meets the prescribed sum.

The applicant is aware of the need to demonstrate continued compliance. Having failed to quarantine, they caused potential risk to other members of the public and potentially to the legal representative and members of the tribunal staff. It has tarnished the repute of the applicant and I do not expect to see such any such approach to safety in the future.

Richard Turfitt

Traffic Commissioner

1/10/2020