Decision

Decision for Richard Thomas Lusher Ltd

Published 21 July 2021

0.1 IN THE EASTERN TRAFFIC AREA

1. RICHARD THOMAS LUSHER – OF0227529

1.1 AND

1.2 AS TRANSPORT MANAGER

2. CONFIRMATION OF THE TRAFFIC COMMISSIONER’S DECISION

3. Background

Richard Thomas Lusher Ltd holds a Standard International Goods Vehicle Operator’s Licence authorising 3 vehicles and 3 trailers. Mr Lusher relies on an Acquired Rights certificate to act as his own Transport Manager.

There is one Operating Centre, at Rudd Marquees Ltd, Garage Lane Industrial Estate, Setchley, King’s Lynn PE33 0BE. There are two declared contractors showing on the licensing record: Peter Thompson Trailer Repairs and Dave Rayner Commercials Ltd, said to be undertaking Preventative Maintenance Inspections of vehicles and trailers at 6-weekly intervals. Peter Thompson Trailer Repairs is now part of Woodbine Trailers but the operator had failed to notify my office for the last 18 months.

The licence was granted from 18 March 1997 with an initial authorisation of 1 vehicle and 1 trailer. There are no other compliance issues recorded against the licence but the operator was at a Preliminary Hearing on 16 March 2021 when it was decided to call this operator and Transport Manager to a Public Inquiry.

4. Hearing

The Public Inquiry was listed for today, 24 June 2021, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was present in the form of Richard Lusher, operator and Transport Manager, accompanied by Martin Millan – proposed CPC holder, represented by Anton Balkitis of Rotheras.

5. Issues

The public inquiry was called for me to consider whether there were grounds to intervene in respect of this licence and specifically by reference to the following sections of the Goods Vehicle (Licensing of Operators) Act 1995:

• 26(1)(b) – contravention of a licence condition to notify matters impacting on repute and professional competence

• 26(1)(e) – failing to fulfil a statement relating to the conditions on the licence

• 26(1)(f) – failing to fulfil a licence undertaking (rules on drivers’ hours and tachographs, vehicles, and trailers to be kept fit and serviceable, to employ an effective driver defect reporting system, to retain complete maintenance records for 15 months)

• 26(1)(h) – material change in the circumstances of the operator

• 27(1)(a) – to consider whether the operator is still of good repute, financial standing and is professionally competent, by reference to section 27(1)(b) and Mr Lusher’s repute as Transport Manager

• 28 – disqualification of directors and operator to be considered

The operator was directed to lodge evidence in support by 10 June 2021, and in particular:

• evidence of financial standing

• maintenance records and corresponding driver defect reports for the last 12 months for all vehicles and trailers

• original maintenance contracts

• evidence of systems of compliance with the rules regarding drivers’ hours and tachographs.

Admissible financial evidence was lodged and found to meet the prescribed sum.

6. Summary of Evidence

Vehicle SF08 NTC was stopped on 8 June 2020 whilst being operated by Driver Anthony Coyle. A check of his records revealed several drivers’ hours infringements including split breaks and the incorrect use of the mode switch. It was also discovered that the driver card had not been downloaded for a period.

An immediate prohibition was issued on 24 June 2020 for condition of tyres on vehicle SF08 NTC.

In response, Mr Lusher provided evidence of the written warning issued to Mr Coyle. In his letter of 19 June 2020 (pages 41 to 42) Mr Lusher notes that he downloads the vehicles himself and he had ‘taken his eye off the ball’. He also revealed he had been undergoing medical treatment and had been absent for a number of days. These circumstances had not been notified to the OTC but it was decided to review compliance at a Preliminary Hearing on 16 March 2021.

Deputy Traffic Commissioner, Mr Dorrington, reviewed the representations lodged in advance of the Preliminary Hearing (pages 57 and 58), which suggest that Mr Lusher was considering retirement. He also saw a 3 page ‘monthly audit report’ dated December 2020, prepared by the Farnsworth Consultancy. That identified two breaches committed that month, where a vehicle had been driven without a card. It also records that the operator left his card with other work recorded overnight on 3 December 2020. A letter was not issued until 25 January 2021 (page 64), which was apparently unsigned and refers to two incidents on 1 and 10 December 2020.

A further letter was issued to Mr Coyle dated 25 January 2021, in respect of his driving on 4 December 2020. The copy at page 63 is unsigned but refers to an interruption of the power supply. The auditor records that stored data is erroneous, which may have resulted from the tachograph being tampered with. The auditor recommends that it be examined by a qualified person.

For some reason it is necessary for the auditor to remind the operator/Transport Manager that digital vehicles cannot be driven by a driver unless that driver holds valid digital driver card.

Mr Dorrington recorded his decision from the Preliminary Hearing, as set out in the letter at pages 74 and 75:

“This was a bad case. Mr Lusher had failed to send to the Office of the Traffic Commissioner the last six months’ worth of PMI records and driver defect reporting sheets. Of the three vehicles that were looked at, the most recent PMI sheet for vehicle SP14 LCF was dated 13 July 2020, SF08 NTC was 17 August 2020 and AU59 BJK was 09 November 2020. From those PMI sheets virtually, every one showed several driver spottable defects but the corresponding driver defect reporting sheet was either marked as “Nil” or there was no driver defect reporting sheet produced. Mr Lusher made matters worse by explaining that one driver was known about for not doing a proper walk round inspection from January 2020 but was only dismissed in December 2020. So, in other words a known issue that impacted on road safety was allowed to carry on for a full 12 months. Mr Lusher accepted that he had never done any Transport Manager CPC refresher training. He accepted he had never read the DVSA publication “A Guide to Maintaining Roadworthiness” and he had never read any part of Statutory Document number 3 issued by the Senior Traffic Commissioner for Great Britain. I was told that he did not know about those documents but in any event after working a 5-day week he was too tired at the weekend to study. He then told me that he did not know how laden a vehicle should be when presented for a roller road brake test nor did he know that no braking imbalance should be above 10% at such a test despite his vehicles often being found with an imbalance above 20%. This was all on the back of vehicle SF08NTC being stopped on 08 June 2020 when breaches to drivers’ hours and tachograph rules and regulations were also identified. As a result, this the case is now to be listed for a regulatory Public Inquiry for both the operator and the Transport Manager. I explained that I would only allow this operator’s licence to be surrendered, and the Public Inquiry vacated as a result, if (a) a properly completed SUR1 form is received together with (b) an audit (maintenance, drivers hours and tachograph compliance) from a competent, accredited and independent provider that was marked as not less than “Mostly Satisfactory” in all areas of compliance that were checked. The audit must cover the period from 01 January 2021 onwards. For the avoidance of any doubt whatsoever, as I was left with the clear impression that Mr Lusher had no serious intent to hand over the business to his son in the near future, the Public Inquiry will not be adjourned because Mr Lusher wants more time to get an audit or to allow his son to apply for an operator’s licence in his own name. The clock is ticking Mr Lusher and based upon the lack of compliance I saw today if we had been in a Public Inquiry, I would have revoked your operator’s licence and, in addition, I would have disqualified you as a Transport Manager with immediate effect. It is therefore in your very best interest to work with your Solicitor and to work quickly if you want to avoid appearing in a Public Inquiry so that you can retire with no regulatory action recorded against your licence. I noted that Timothy Lusher was listed as a driver, at page 66.

The only other documentation provided related to:

• a roller brake test of SP14LCF on 14 July 2020, which relied on a forward wheel allowance on both service and secondary braking devices,

• a roller brake test of trailer C276267 on 18 August 2020 when it was grossly under laden and only managed to achieve 18% and 11 % performance,

• a roller brake test of SP14LCF on the same date which passed but with a 20% imbalance on the parking brake on axle 3,

• a roller brake test of SP14LCF on 25 September 2020, which passed but again with some notable imbalances.

• Record of action taken by STS tyre contractor after a tyre blow out on 16 May 2020.

Additional representations were supplied in advance of the Public Inquiry, which corrected the information provided at the Preliminary Hearing around the operator’s intention to pass the business to his son, Timothy. His son has informed the operator that he does not wish to proceed, so the operator intends to stay on. I am referred to his attendance at a two-day Transport Manager refresher course on 1 and 2 June 2021, Mr Lusher having opted to attend in person. He now suggests that he is “no longer best placed to be the nominated Transport Manager on the licence”.

I recorded the attendance of Martin Millan. I was told that a TM1 form had been lodged by Timothy Lusher, on behalf of the operator. The Vehicle Operator Licensing system was showing no documentation attached to the licence record, apart from a Certificate of Professional Competence in the name of ‘Martin Jolley’ but provided in respect of Martin Millan. I was reminded of Mr Millan’s change of name a couple of years ago, but checks have yet to be undertaken and Mr Lusher remained as the named Transport Manager. The written representations accepted the shortcomings in drivers’ hours compliance. They refer to the tachograph records / driver memos / driver infringements. The change in external analysis is offered as evidence of a new approach, with Prompt now contracted to supply reports. It was confirmed in evidence that Mr Millan has already commenced work. I was referred to his commitment “to rigorously monitoring drivers’ hours analysis going forward”. I note the two audits carried out, on 13 April 2021 and 1 June 2021. I am directed to the auditor’s comments on the noted improvements. I am aware that the 5 recommendations at the first audit have been reduced to 3 at the latter exercise, concerned with margins for trailers and vehicles and registering for OCRS. I was concerned to note the comment regarding the timing of Preventative Maintenance Inspections and noted the incident on 19 April 2021. The representations refer to previous accounts. My dip sampling of the documentation lodged after the Preliminary Hearing, revealed the following: AU59 BJK:

• 24 May 2021 – inspection with roller brake test, although the driver defect report suggests that the vehicle was off-road. The brake test recorded performance of 54%, 17% and 18%. The inspection noted that the exhaust warning was on, the rear air tank mounting was broke, and a windscreen crack, amongst other defects that might not have been obvious on a walk round.

• 28 April 2021 – inspection some 24+ weeks from the previous record, with a roller brake test recording 60%, 21%, 18% after a new brake chamber was fitted. The driver defect report recorded waning light for AdBlue, but the inspection sheet identified inoperative nearside and off-side markers.

• 9 November 2020 – inspection with roller brake test although the driver defect report suggests that the vehicle was off-road. The brake test recorded 61%, 18%, 17% after rear axle pads were changed. The inspection also recorded inoperative offside front lamp, loose nearside rear spray suppression amongst other defects.

• 24 October 2020 – inspection with no brake test recorded.

• 23 September 2020 – inspection 14+ weeks from the previous inspection with roller brake test recording 61%, 18%, 17%. The inspection recorded side mirror lamps out, nearside rear lamp, exhaust pipe holed, amongst other less obvious defects including loose fuel tank straps.

• 13 June 2020 – inspection with roller brake test recording 61%, 18%, 18%. Inspection records offside rear lamp out plus second axle king pin, which occurs at the next inspection.

Trailer C348306:

• 22 May 2021 – inspection but no brake test; 13 April 2021 (10+ weeks) – inspection with brake test = 17% and 11% due to insufficient loads on axles 1,2,3; 30 January 2021 (10 weeks) – inspection with no brake test; 21 November 2020 – inspection with no further brake tests back to October.

I therefore confirmed the findings recorded by Mr Dorrington.

I was told that Driver Coyle no longer works for the operator following the incident as summarised above. The operator is only operating two vehicles but appeared confused about the need for a margin. He had met Mr Coyle whilst driving on international work and, in his own words, had trusted him too much. That is really the crux of how the operator came to be in this position today. He just trusted to the advice of his contractors on brake testing, allowed his driver to act on trust, and was content to bow to the expertise of others. This may have been an inevitable consequence of his lack of up-to-date knowledge but, even after attending before the Deputy Traffic Commissioner, there was still too much reliance on the ability pass an annual test, rather than taking control to manage the Preventative Maintenance Inspections. It was not really necessary to explain the risk to road safety from untested brakes, but Mr Lusher placed far too much weight on the practical challenges rather than making sure he achieves the minimum standards, which are expected under the terms of the operator’s licence.

7. Determination

I have little hesitation in confirming Mr Dorrington’s assessment, requiring adverse findings as follows: 26(1)(b) – contravention of a licence condition to notify matters impacting on repute and professional competence and changes in maintenance; 26(1)(e) – failure to fulfil statements relating to the conditions on the licence and to conduct maintenance inspections within the declare frequency, 26(1)(f) – failure to fulfil licence undertakings to comply with the rules on drivers’ hours and tachographs, that vehicles and trailers will be kept fit and serviceable, to employ an effective driver defect reporting system, and to retain complete maintenance records for 15 months.

There have undoubtedly been material changes in the circumstances of this operator, not least in his ability to ensure continuous and effective management. I make that finding under section 26(1)(h). Mr Lusher indicated that he no longer wished to rely on his Acquired Rights Certificate and did not envisage wishing to rely on it again. In effect he sought to surrender that Certificate and I accepted an undertaking to that effect. In the absence of that undertaking, I would have felt compelled to make an adverse finding under section 27(1)(b) and to make a direction preventing him from relying on it, in any event. It would also have placed the whole licence at issue, as per the Upper Tribunal decision in 2017/055 Alistair Walter. I nevertheless record a formal finding under section 27(1)(a) that the operator no longer enjoys professional competence.

It is perhaps ironic that it is Mr Lusher’s removal as Transport Manager, which perhaps offers the greatest prospect for future operations. Mr Millan was present at the hearing. I heard from him about his plans to monitor the two remaining drivers, Mr Lusher, and his son, using an app; to immediately review the maintenance arrangements so that the needs to the operator (as measured against the tester’s manual, Guide to Maintaining Roadworthiness and brake testing guide) are given priority over what the contractor can conveniently provide. He will immediately chase the application said to have been submitted to OTC Licensing and will resubmit, if necessary. He will resign from any involvement if he feels that the operator is not complying. On that basis, I was satisfied that there was some tangible evidence that granting a period of grace will be worthwhile, with reasonable prospects for a good outcome, as per the test suggested in 2014/008 Duncan McKee and Mary McKee. I therefore allowed a Period of Grace for no longer than 3 months. I was very clear in explaining that the operator’s licence would terminate upon this adverse finding if a qualified CPC holder had not been accepted on the licence by that date.

As the Upper Tribunal made clear in 2011/036 LWB Ltd: it is for the applicant or operator to satisfy the Traffic Commissioner that the person concerned can fulfil the role of transport manager. That role is defined in … the Act, which provides that it means in relation to a business: “an individual who, either alone or jointly with one or more other persons, has continuous and effective responsibility for the management of the road passenger transport operations of the business”. It follows, in our view, that when nominating an individual as a transport manager, (whether on an application for a licence or as an addition to or replacement for an individual who has acted as transport manager), it will be necessary to show that the person concerned will be able to exercise ‘continuous and effective responsibility’. That means that the Traffic Commissioner must be in a position to assess how much time the individual will devote to the business in question, what other demands that person will have on their time and what contractual relationship exists between the individual and the operator. That case explains the necessity of a properly completed TM1 form.

I have proceeded to consider the question posed 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 note the results of the recent audits. Even giving credit for the lack of previous intervention up to the Preliminary Hearing and the outsourcing of the drivers’ hours analysis with infringement and missing mileage reports, it is really the involvement of Mr Millan, which offers the prospect of future compliance. The operator offered an undertaking that he would be employed to ensure compliance for 4 to 6 hours per week pending his acceptance as the Transport Manager. He also offered a further audit of compliance within 5 months of this hearing. I accepted both those assurances and the statement of intent regarding external analysis by Prompt. I left the operator in no doubt that his repute hangs by the finest of threads and that any further failure to meet the basic standards as required under the licence, is likely to result in its removal; repute is tarnished to that degree.

In the immediate future the licence is curtailed to 2 vehicles and 2 trailers, with immediate effect. SF08 NTC is to be removed and the disc must be returned to the Office of the Traffic Commissioner in Cambridge within 7 days of the hearing. The purpose of that intervention is one of deterrence, as per 2019/025 John Stuart Strachan t/a Strachan Haulage, and to make clear that further, more serious action must follow, if the situation described above persists.

Richard Turfitt

Traffic Commissioner

24 June 2021