Decision

Decision for RFS Hire Ltd (OH2021783)

Published 26 April 2021

0.1 RFS HIRE LTD

0.2 OH2021783

0.3 TRANSPORT MANAGER:

0.4 ROGER FOWLER

1. PUBLIC INQUIRY IN BRISTOL

1.1 10 MARCH 2020

2. BACKGROUND

RFS Hire Ltd is the holder of a standard international operator’s licence authorising the use of three vehicles and three trailers from an operating centre in Chittening, Avonmouth. The sole director is Roger Fowler who is also the sole transport manager. The licence started on 5 June 2019 and was granted with an undertaking that Mr Fowler would undertake a two-day transport manager CPC refresher course by 31 August 2019.

The operator was referred to my office by Hampshire and Thames Valley Police Commercial Vehicle Unit following an encounter on 4 July 2019 with vehicle redacted. The driver had apparently lost his driver card but analysis of tachograph data identified a number of occasions when the vehicle had been driven without a card. It was not clear at the roadside which entity was operating the vehicle as no disc was displayed. I requested that DVSA undertake a traffic enforcement investigation. DVSA Traffic Enforcement Manager Melanie York made contact with Roger Fowler on 7 August 2019 who confirmed he was the operator of the vehicle on 4 July.

On 17 August 2019, vehicle redactedwas encountered by DVSA at The Coldra, M4/A48 in South Wales. An immediate prohibition was issued for a tyre tread worn away to the extent that the cords were exposed and for no brake lights. The issuing officer considered it indicated a significant failure of roadworthiness compliance.

DVSA Vehicle Examiner Gary Ford undertook a maintenance investigation on 2 September 2019. The investigation was pre-arranged and carried out at the operating centre. Due to a lack of facilities, the investigation went ahead in the operator’s car. Despite being advised in advance, Mr Fowler failed to produce driver walkround records or any evidence of forward planning. There was no evidence of brake performance assessment on any inspection record. There were ten shortcomings in total. VE Ford concluded “Mr Fowler did not appear to be too concerned with the noted shortcomings and I have a concern that he is not fully aware of his legal responsibilities”. No response to the findings was received from the operator.

On 17 September 2019, vehicle redacted was encountered at Tormarton, M4 junction18. The vehicle was issued with a delayed prohibition for a positive fluid leak from the power steering system. The accompanying trailer was issued with an immediate prohibition for a serious cut in a tyre sidewall and a delayed prohibition for an anti-lock brake defect. The examiner noted the tyre as being sixteen years old.

On 20 September 2019, redacted was encountered at Tormarton. The driver had committed drivers hours offences.

DVSA Traffic Examiner David Liddall conducted a pre-arranged traffic compliance investigation on 20 November 2019. Whilst the operator claimed that a number of systems were in place, no evidence was provided to support those claims either during the investigation or thereafter. The requested tachograph data was not supplied.

My office in Leeds chased compliance with the training undertaking on 5 September and 6 November. No response was received.

This caused me to call the operator and transport manager to public inquiry in the terms set out in the call-in letter. Relevant drivers were also called except for the driver of vehicle redacted on 17 September 2019 because Mr Fowler failed to respond to requests for the driver’s details.

3. THE PUBLIC INQUIRY

Mr Roger Fowler attended the public inquiry unrepresented. Also present was driver Andrew Conlon. His decision was issued orally at the time.

Proceedings were recorded and a transcript can be produced as required. I do not record all the evidence here, only that which is necessary to come to a decision.

I confirmed that Mr Fowler was aware of the possible outcome and questioned why he was unrepresented. Mr Fowler told me that he was due to be represented redacted. Mr Fowler was content to proceed. My office had not been put on notice that Mr Fowler was to be represented and no solicitor had contacted the office to request an adjournment as would have been expected had a solicitor been instructed.

redacted

3.1 Oral evidence

redacted. He currently had 17 vehicles in possession for that purpose. Two vehicles were being used for haulage, occasionally three. The work was mixed and plentiful.

I took Mr Fowler to page 77 of the bundle where there were emails from my office to Mr Fowler asking for the details of a driver. I asked why he hadn’t responded. Mr Fowler told me that he’d been busy and forgot all about it. He had too much to do. He was looking for another transport manager. He didn’t refuse to provide the information; he just hadn’t got round to it. In fact, he himself had been the driver.

Maintenance was now undertaken by Sergeants in Bedminster. Mr Fowler confirmed that the brake test results were produced by a decelerometer that did not have a print facility. I asked why the recent PMI sheets still did not have the maintenance provider’s name, a shortcoming identified by the Vehicle Examiner in August 2019. Mr Fowler could not answer. He received the PMI sheets via email within about a week of the inspection. It was only a scanned copy. He never received the original. The vehicle would return to service before he saw the PMI but Sergeants would tell him if there was a problem.

Mr Fowler had forgotten to bring driver defect records to the inquiry. I took Mr Fowler to page 47 which was the summary of the Vehicle Examiner’s findings and reviewed the current position with reference to the documentation Mr Fowler had provided. It had been conceded that the transport manager did not have the time necessary to undertake the role. There was still no method of brake testing identified, just some numbers written in the boxes. No identification of the maintenance provider. The PMI sheets were now seen about a week after the PMI rather than three, but the vehicle returned to service immediately if there was work. A wall-chart was produced but it included only PMI dates, not tax, tachograph calibration or insurance. Mr Fowler had once again forgotten to bring driver defect reports. In the positive, tyre tread depth was now recorded and all PMIs were signed as roadworthy.

I asked Mr Fowler to explain why the tachograph had not been calibrated from May 2016 to January 2020. I asked why a PMI was dated March 2021. Mr Fowler had no answers. I referred Mr Fowler to the call-in letter and the list of evidence to be provided. I asked why he had not complied with the instructions to supply finances in advance or to bring tachograph and drivers hours data (he had supplied what appeared to be an Amazon Fire Stick, which was highly unlikely to contain tachograph data).

I turned to Mr Fowler’s transport manager role. He had attained his CPC in 1998. He used to be a member of the RHA until 1994. He had attended a refresher course at some “Mickey Mouse Welsh outfit” which Leeds had rejected as not being an OCR centre. He hadn’t yet attended an acceptable course.

In terms of regulatory impact, suspension would cause chaos. Revocation would finish the haulage business but that wouldn’t have much effect on him personally. Four or five drivers would lose their jobs. Disqualification would have little impact as he intended to retire.

I provided 24 hours to provide any additional finances, reserved my decision and closed the hearing.

4. CONSIDERATION AND FINDINGS OF FACT

No further relevant finances were received. That which was provided for the licence-holding entity covered a period of only nine days. Financial standing is not satisfied. Section 27(1) is made out. Revocation is mandatory.

The licence was granted in June 2019 and, by November 2019, the operator had the following prohibition history:

image redacted

The legal tread depth limit for a heavy vehicle is just 1 mm. Mr Fowler had a tyre in use which had worn through all the tread and then the rubber that protects the structure of the tyre. I am satisfied that prohibitions have been issued and that vehicles have not been kept fit and serviceable. The state of Mr Fowler’s fleet is appalling. To incur three further prohibitions within just over a fortnight of the DVSA maintenance investigation shows a total disregard for compliance.

Mr Fowler failed to provide any evidence of driver defect reporting either to VE Ford or to me. The only logical conclusion is that there isn’t any, and that is supported by the prohibitions that were issued, many of which were readily apparent to a driver.

The operator has failed to provide any tachograph raw data to DVSA. That is a criminal offence punishable in the criminal courts by an unlimited fine. He has failed to provide me with any evidence of his drivers’ hours management systems. I can only find that there are none. A driver was found to have driven over 5 hours without a qualifying break, another was found by the police officer to be routinely pulling his card.

Mr Fowler’s acceptance as transport manager on this licence was subject to his acceptance of the following undertaking:

Mr. Roger Fowler will attend a transport manager CPC refresher course, run by a trade association (FTA/RHA/BAR/CPT), a professional body (IoTA/CILT/SOE/IRTE) or an OCR-approved exam centre offering the transport manager CPC qualification in specify goods transport by 30/06/2019.

A copy of the certificate of attendance will be sent to the traffic area office in Leeds within seven days of the course taking place.

Mr Fowler accepted the undertaking as follows:

From: roger fowler rogerXXXXXXXX@gmail.com Sent: 26 April 2019 09:42 To: XXXXXXXXXXX Subject: OH2021783

Heading: Operator Licence Application OH2021783 RFS Hire Ltd

Dear XXXXXXX

Further to your letter of 25 April 19 I confirm I have arranged a Refresher Course with the FTA but this is not until 8 - 9 August 2019. This was the first available local slot.

We have requested an Interim Operator Licence and I hope that this will be considered until the course is attended.

If you require any further information please let me know.

Roger Fowler Director RFS Hire Ltd

(Note that I have redacted the caseworker name and all email addresses as this decision will be published)

The undertaking was not satisfied. Nothing was supplied to my office in Leeds. Mr Fowler failed to respond to requests for information from DVSA twice, from my office in Leeds twice and from my office in Bristol (in relation to driver identity) twice. The failure to respond to those requests is a material change from when the application was granted. The failure to attend the FTA course is also a material change as well as a breach of licence undertaking.

I find that all the matters cited in the call-in under Section 26 are made out. Vehicles were not kept fit and serviceable, prohibitions and fixed penalties have been issued, there was no written driver defect reporting, the rules on tachographs and drivers hours have been breached both in driving time and the failure to have the tachograph calibrated, there has been a failure to comply with undertakings both general and specific and there has been an abject failure to cooperate with both DVSA and my office.

Roger Fowler is the transport manager. He plainly told me he was too busy to undertake the role. He is also the operator so my findings at paragraph 30 refer equally to him as a transport manager. He has still not provided evidence of attendance at a qualifying, or any, refresher course. I am required to conduct a balancing exercise but that is difficult. He attended the inquiry. In the positive, that is it. His good repute as transport manager is forfeit. It follows that Sections 27(1)(a) and (b) insofar as they relate to professional competence and the transport manager are made out.

Having found that the transport manager has forfeit his good repute and with that transport manager also being the sole director and proprietor of the business, it is extremely difficult to find other than that the corporate veil is pierced and that the company and its director have also lost good repute. I can find no argument to the contrary. Even the small positive of attending the inquiry was offset by the failure to provide the requested evidence. Roger Fowler has no positive regard for the operator licensing regime in which he has sought to operate. Section 27(1)(a) is made out in relation to good repute.

I turn now to consider disqualification as an operator. Mr Fowler told me that it would have no impact because he intended to retire. Even if he did not, his failure to implement any effective compliance management systems at all mean that he needs a period of reflection before he can be trusted in the future. A medium period of disqualification is appropriate for that reflection to happen.

5. DECISION

Pursuant to findings under Sections 26(1), I exercise my discretionary powers and revoke the licence with effect from 23:59 hours, 29 August 2020.

Pursuant to findings under Section 27(1), loss of professional competence, financial standing and good repute, I am compelled to revoke the licence, the effective date of which is 29 August 2020.

Roger Fowler is disqualified from acting as a transport manager in any member state until he sits and passes again his transport manager certificate of professional competence.

RFS Hire Ltd and Roger Fowler are each disqualified from holding or obtaining an operator’s licence in any traffic area for a period of three years from 29 August 2020.

5.1 Footnote – not part of the decision

There has been a significant delay in the production of this decision. The hearing was just before my office was closed and I have been working remotely. My priority has been to take action at both a local and national level to keep the transport industry operational and that has taken up almost all my time.

Kevin Rooney

Traffic Commissioner

23 July 2020