Decision

Decision for RJB Construction & Lining Ltd (OF1091814)

Published 8 October 2020

In the Eastern Traffic Area.

Confirmation of the Traffic Commissioner’s decision.

1. Background

RJB Construction & Lining Ltd holds a Restricted Goods Vehicle Operator’s Licence authorising 4 vehicles and 1 trailer. There are 3 vehicles specified although one vehicle has been off road since January 2020. I was not notified of that change. The VOR system is in need of improvement.

The Operator has one Operating Centre at Elm Farm, London Road, Crays Hill, Billericay CM11 2UZ. There is one Director, John Blewitt. The nominated contractor is S C Burrell’s, which was inspecting vehicles at 12 weekly intervals.

The licence was granted in November 2009. The Operator has attracted 5 prohibitions and 6 fixed penalty notices in the past 5 years.

2. Public Inquiry

The Public Inquiry was originally listed for April 2020, but that was postponed due to the pandemic. It was relisted for today in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was present in the form of Mr Blewitt. He was accompanied by a transport consultant, Mr Owen Evans of Essex Driver.

3. Issues

The Operator was called to Public Inquiry for me to determine whether I needed to intervene in respect of this licence and specifically by reference to:

• section 26(1)(b) - fail to notify relevant changes,
• section 26(1)(c)(iii) – Prohibitions,
• section 26(1)(ca) - Fixed Penalty Notices,
• section 26(1)(f) - Rules on drivers hours and tachographs would be observed,
• section 26(1)(f) - Vehicles and trailers not to be overloaded,
• section 26(1)(f) - Vehicles and trailers would be kept fit and serviceable,
• section 26(1)(f) - Driver defect reporting,
• section 26(1)(f) – maintenance records for 15 months to be kept and available on request,
• section 26(1)(h) - material change in finance and/or fitness,

4. Summary of Evidence

The Operator attracted an S-mark prohibition on 16 December 2019 for driver detectable defects around an inoperative indicator. A follow up maintenance investigation was completed on 17 January 2020 by DVSA Vehicle Examiner, Christopher Swaisland.

Mr Swaisland identified the following concerns:

• Apparent lack of knowledge of the responsible person, namely Mr Blewitt.
• Inspection records do not show recording of metred brake performance results, and as per the Guide to Maintaining Roadworthiness (published November 2018).
• Driver defect report follow up action not shown or recorded on defect reporting (e.g. PG9 to RX08 HCP).
• Recent S marked PG9 for indicator defect, following previous PG9s in 2017.
• Fixed Penalty Notices.

In the operator’s response, written at some point between 18 January and 11 February 2020, the operator gave the following assurances:

• Director and his brother booked on 2-day Operator Licensing Awareness Training for 11 February 2020. This did not take place until June 2020.
• DDR – new procedure to be introduced to monitor reported defects. In questioning the Operator was unable to explain a driver detectable defect identified at an inspection on 16 June 2020.
• Director is now aware of his responsibilities to inform OTC.
• Director committed to intervals of 6 weeks from May 2020 for 2 vehicles approaching 12 years of age. In evidence he was unable to explain why WX61 EYL would stay at 12 weeks and, whilst aware of the Guide to Maintaining Roadworthiness had not made any other assessment. The change has not been notified to OTC but even then, there was an interval of 11 weeks and 3 days between inspections to 16 June 2020 on RX08 HCP.

In the course of evidence, it became clear that vehicles had been presented for roller brake testing in an unladen condition so that the results of the tests were meaningless, with brakes locking before reaching the required level of performance. Mr Blewitt was unaware of this. He was similarly unable to explain the absence of driver defect reporting or why maintenance intervals had been extended beyond the assurances given to DVSA.

Financial evidence was produced in the name of another but connected corporate entity. It needs to be in the name of the authorised Operator.

5. Decision

I am satisfied to the civil standard of proof that I should make adverse decisions under sections 26(1)(b) - failure to notify relevant changes, 26(1)(c)(iii), 26(1)(ca), section 26(1)(f) - rules on drivers hours and tachographs, one incident of overloading, vehicles and trailers would be kept fit and serviceable, Driver defect reporting, records incomplete, 26(1)(h) finance.

I can give credit for 100% annual test pass rate. This suggests that vehicles are presented in a laden condition for pre-test preparation. It requires the Operator to manage the contractor to ensure that similar checks are completed at every PMI in the intervening period.

Similar scrutiny is required in respect of the drivers. It does not assist that one of the drivers is apparently ‘self-employed’. He carries out other tasks such as ground works but that does not appear to make a difference. I referred the operator to the available HMRC guidance. He was unable to explain to me how he can effectively discipline a driver who is not an employee. I noted the previous prohibition and fixed penalty history.

I also give credit for the infringement reporting employed as part of the drivers’ hours management. On my cursory examination, I noted that the infringements appear to have decreased in seriousness.

There have been some improvements in management control, but it is still some way from what is required particularly after the prohibitions and notices and where assurances were given to implement remedial measures, which are only now commencing.

I was assured that Mr Blewitt had now attended Operator Licence awareness training with Essex Drivers. I regret that the level of understanding required to manage Operator Licence compliance did not appear particularly evident.

The Upper Tribunal suggested in 2013/007 Redsky Wholesalers Ltd that the “Priority Freight” approach might be adopted in considering fitness. I therefore started with the question 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? As with many elements of the Operator Licence, actions often speak louder than words.

Mr Blewitt proposed delegating his responsibilities away to Mr Evans. The Terms of Service suggest that Mr Evans would ‘take control of the transport management’. That is not acceptable from a Restricted Operator, where there is no requirement for a Transport Manager and the statutory responsibilities remain with the Operator. I will take in to account the statement of intent to engage Mr Evans to advise for 8 hours per week. If that changes the Operator must notify me. He has sat through the Public Inquiry and heard my concerns.

The operator has 14 days to show sufficient finance in the name of this operator. If it fails to comply then the licence will be revoked under section 26(1)(h). It has had more than enough time and should not gain a commercial advantage. On the basis that it does comply, I will accept an undertaking for a further check 4 months from the date of this decision where the prescribed sum must be demonstrated by way of a three month average in the name of the operator and to demonstrate the payment of wages to employed drivers.

Going forward the Operator’s fitness is inevitably severely tarnished, but this is a first Public Inquiry. It falls within the Serious to Moderate range of the starting points described in Annex 4 of Statutory Document 10. There can be no repeat, so there is a need for deterrent intervention. I am aware that the operator has only been using two vehicles since January 2020. That work may pick up and there is the likelihood of additional ground and other works during the school holidays, but the size of the operation appears to have been one of the hurdles to compliance. According to Mr Blewitt he has spent too much time searching for work and dealing with customers. He must approach his obligations with the same seriousness he tells me he applies to health and safety. The licence will be curtailed by two vehicles. I set no time limit and he might apply to increase authority, but he should be aware that I will be looking for evidence of full compliance when he does.

RT/TC/13/7/20