Decision

Decision for Robert James Cutting (OF1116676) and Stacey Causer – Transport Manager

Published 8 October 2020

In the Eastern Traffic Area.

Confirmation of the Traffic Commissioner’s decision.

1. Background

Robert James Cutting, trading as R J Cutting Agricultural Contractor, holds a Standard National Goods Vehicle Operator’s Licence authorising 4 vehicles and 4 trailers. There are two Operating Centres at Akenham Hall Farm, Henley Road, Akenham IP6 0HH and White Lodge Farm, Church Lane, Barham, Ipswich, IP6 0PU. He previously held a Restricted Operator’s Licence granted on 8 January 2013, which was upgraded from 5 June 2014. The second Operating Centre and increase in authority was granted on 9 April 2018.

The Transport Manager is Stacey Causer, who gained her CPC by examination in March 2016, and was appointed to this licence on 27 June 2017. A warning letter was issued to the operator on that date for failing to notify me of a change in transport manager.

The business is described as encompassing two interlinked activities: agricultural haulage and agricultural contracting. The haulage side has a three-year contract to haul sugar beet during the harvest season from September to March, outside of which the business hauls products to be spread on farms, i.e. manure and fertilisers. The agricultural contracting side spreads the products hauled to the farms.

I was told that Mr Cutting has used his family experience to develop this business and then into the delivery of lime/chalk and muck. Mr Cutting and Ms Causer have a family together and receive administrative support from Clare Woodley. The business employs two full-time drivers with one further driver on the agricultural haulage side. There are four notified contractors, inspecting vehicles and trailers at 8 weekly intervals.

2. Hearing

The Public Inquiry took place on 8th July 2020 in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator way physically present. The Transport Manager appeared by video-link. They were both represented by Tim Ridyard of Ashtons Legal.

3. Issues

The operator was called to Public Inquiry for me to consider making a direction in respect of the following legislation:

• section 26(1)(b) condition to notify relevant changes in maintenance arrangements
• section 26(1)(c)(iii) prohibition notices (page 66)
• section 26(1)(e) statement of intent in respect of PMI intervals and the notified contractor
• section 26(1)(f) undertakings to ensure that vehicles and trailers are operated in a fit and serviceable condition, and to have an effective written driver defect reporting system
• Section 26(1)(h) material change
• Section 27(1)(a) repute, financial standing, professional competence.

Mr Ridyard very helpfully submitted extremely full representations. In the interests of fairness to the operator and Transport Manager I found it necessary to convene a Public Inquiry in order to make the type of assessment, which the Upper Tribunal has oft remarked upon, and which can only be made in person.

4. Evidence

An announced maintenance investigation was carried out by DVSA on 22 November 2019. VE Mervyn Lockwood, marked it unsatisfactory. The DVSA investigation followed two vehicle stops on 14 and 19 November 2019. Mr Lockwood identified a number of positive matters around the management of the licence but was concerned about the evidence of adequate walk around checks, who was carrying out the maintenance and aspects of the PG9s, suggesting a significant failure in the maintenance system. In particular, he noted:

• Roller brake testing requirements are not being met. Brake testing equipment is available, however it is not used at every inspection. Guide to Maintaining Roadworthiness issued November 2018.

• Driver defect reporting system appears to be ineffective. Defects leading to the issue of roadworthiness prohibitions were driver detectable. Preventative maintenance inspection (PMIs) have numerous lamps and tyre defects. Rectification work was not signed off on driver defect records when defects have been found.

• Failure to notify of additional maintenance contractors being used.

• Due to the number of prohibitions issued, the stated PMI interval of 10 weeks appears excessive. This was already changed.

• The up to date Guide to Maintaining Roadworthiness had not been downloaded. This was rectified during the investigation.

• There have been five roadworthiness prohibitions issued to the operator’s vehicles in the last five years. Of these, one was immediate (‘S’ marked), three were delayed and one was a variation and refusal.

A summary and assessment of findings dated 27 November 2019 was left with the operator. A letter of response was sent by Mr Cutting and Ms Causer addressing the issues.

I was told that maintenance contracts are now up to date for: HB Commercials; G&G Repairs; RH Bodyworks; Norfolk Trucks and Taylor Commercials. The failure to do so was described as an oversight.

In that context, I noted the response to the two S-marked PG9s issued within 5 days in November 2019. On 14th November 2019, trailer C375379 was found to have defective brakes and a bulging tyre. It had been inspected the previous afternoon. I am asked to accept that the date on the record shows the date of print-off. The driver would not have known about the brakes. This was investigated with HB Commercials. The response suggests that the contractor departed from the accepted method of brake testing. As Mr Ridyard’s representations very fairly record, the contractor accepted that ‘only a RBT (roller brake test) can measure individual wheel brake performance.’ The operator and TM must ensure the basis upon which trailers are being signed-off as roadworthy. It is accepted that a tyre defect had been identified the day before but marked as an issue to monitor by the same fitter.

The next notice was issued to BX14 EXL/C159481, which was apparently being driven by an agency driver. I accept the operator’s view that the driver should have noticed if wheel studs were fractured and not completed a ‘nil defect’ report. The operator contacted the agency on 24 November 2019.

I am also referred to a recurring and intermittent fault leading to the ABS indicator on PX10 BUE, which had been noted on 23 and 25 November 2019. The ABS lead to the trailer had been changed but that was a temporary fix. It was due to be inspected by HB Commercials to have further investigative work carried out. I accept the view that the steering joint issue may not have been evident to the driver. In the absence of a more detailed explanation I prefer the view of the Examiner over that of the contractor that there was a defect. I am asked to accept that issues around third-party trailers will be addressed through thorough inspection by Taylor’s.

I note that the operator is currently reviewing its maintenance providers following the establishment of that new account. This will apparently result in more efficient brake testing, to which I revert later in this decision.

The VE’s concerns regarding driver defect reporting followed those prohibitions and his observation of the Preventative Maintenance Inspection records. I have already made my observations in respect of the notices. I was told that a nil defect reporting remains in operation. Bulbs may be dealt with by drivers, but anything more must be referred to a tyre fitter or mechanic. Mr Cutting apparently conducts spot checks for himself. The representations accepted the presence of driver detectable defects on the PMI forms but attributed this mainly to bulbs and the rough terrain of fields and at farm sites. That being acknowledged I am entitled to expect evidence of a risk-based approach to compliance management and formalisation of the spot checks and additional instructions to drivers. I accept that this is not a case where drivers are failing to report but more needs to be done. I am told that the operator is now double-checking that driver defect forms are signed off and auditing PMI sheets for driver-detectable defects. There is hope to engage a driver app but I accept the formal undertaking for driver auditing.

I agree that there is no suggestion that brake testing was not taking place. The question is whether they were meaningful. I naturally presume that an operator will seek to use a vehicle in a laden condition. It is therefore vital to the safety of the driver and other road users that operators reassure themselves that the various braking systems are capable of functioning effectively in those conditions. I am told that HB Commercial were looking after the maintenance on: vehicles: DG11 UFY & PX10 BUE and trailers: C392739 & C375379; G & G Repairs were looking after the maintenance on: trailer C159481 (hired); Norfolk Trucks undertook the maintenance on: vehicles BX14 EXL & PX19 KUT. Instructions may have been given to those contractors but on her own admission the Transport Manager was simply relying on a green flag on the R2C records. Far greater scrutiny is required of an operator and TM. I was assured in the written representations that greater auditing would be employed, in accordance with the assurances given to Mr Lockwood.

I could see from my perusal of more recent records, there is evidence of effective brake testing of the trailers. This was less evident on vehicles PX19 KUT, where the last PMI was not signed off as roadworthy, and BX14EXL. I noted driver detectable defects occurring at the PMI on the latter dated 20 May 2020, but could find no driver report from Mr Pratt. There was a positive pass for brake testing on 28 May 2020 and 17 April 2020, but across all other records for both vehicles, it was apparent that brakes did not reach an acceptable level of performance. In the absence of RBT print outs the operator and TM will not be able to identify for themselves what might be the cause. Those print outs which were available suggest that this was due to a lack of a load. I can understand that some contractors may object to the loads which the operator carries but it is for him and the TM to find suitable alternatives. It is not for contractors to dictate or limit the terms of the Operator’s Licence

I have seen an example of the SmartCheck report, the Vehicle inspection & maintenance planner and the R2C maintenance records and brake tests. I am particularly concerned by the latter. In representations I was supplied with a long list of the brake checks carried out on the various vehicles. As was illustrated during the course of the hearing, there is limited benefit in the R2C system when the brake print outs are not also supplied. In the absence of that information there is no means by which the Transport Manager and operator can check for obvious reasons for what are clearly failed brake performance tests. My dip sampling of the records showed this to be a consistent shortcoming and even where the print-out is available, the operator has yet to address the issue.

The Transport Manager has recognised that there have been shortcomings in the management of the transport operation. I sought to demonstrate the level of scrutiny required particularly in respect of the maintenance product. The TM should be looking closely to check the brake readings actually equate to a pass, as set out in the Testers’ Manual. She needs to be guarding against imbalances or underloading. She should also have spotted that PX19 KUT had no declaration of roadworthiness. Much of the operational contact with the contractors have fallen to Mr Cutting but he and the TM need to develop a method of supervision which ensure tighter management of maintenance going forward. It is no good blaming individual contractors if that level of scrutiny is not evident. I was told that vehicle files and records are maintained in a highly organised and well-set out manner. That is just filing; where the TM or operator intervene, that needs to be reflected in a maintenance record, as per the undertaking on the licence.

5. Balancing Exercise

I am satisfied to the civil standard that there have been breaches of the Operator Licence requirements such that support adverse findings under section 26(1)(b), (c)(iii) prohibition notices, (1)(f) undertaking to ensure that vehicles and trailers are operated in a fit and serviceable condition, and to have an effective written driver defect reporting system.

I have noted the remedial action set out by the operator: with additional instructions to drivers, physical changes to allow better driver inspections, instructions given to contractors (which will require greater management).

The operator and TM have been through the PI and should not require additional training. They do need to seek detailed guidance on how to monitor brake testing

I accept that there have been no prior adverse hearings beyond that outlined above. I have already recorded that Mr Lockwood was very fair in identifying positive elements of compliance and the cooperation given. I commenced the hearing by acknowledging the test history set out in the bundle. The prohibition history is limited but will only be managed through scrutiny of the driver walk rounds. That will need to be tested through an audit.

I have already noted we are out of the sugar beet season. I am told that any intervention would have “huge financial repercussions”. I am asked to accept that there is no identifiable alternative even under current trading conditions. I note that the customer is charged for the supply and the spreading of fertilisers etc, so there is a degree of control over the demand. Trailers are deployed by the business with dedicated liners to prevent the contents remaining within the trailer bodies. The current COVID-19 situation has meant some reduction on the normal workload as a whole. Three vehicles are sufficient to meet current demands. I have also taken account the contribution to the supporting the national effort and to restart the economy.

I believe that future compliance is likely but I am yet to be persuaded that the management control of contractors is as effective as it needs to be. I can accept that changes have been made and there is a willingness to manage drivers and other providers but that needs to deliver full compliance. I assess this case to fall within the Medium starting point. The repute of the operator and of the Transport Manager is tarnished by these findings. There is a need to take deterrent action in the interests of sustained compliance in the future. I issue a formal warning to Ms Causer. I will accept the undertaking for a trade body or equivalent to complete a compliance audit, to be supplied to the OTC within 6 months of this date. The O/L is curtailed by 1 vehicle for a period of one month, with immediate effect. I do not expect to see a repeat of these shortcomings. That would risk far more serious intervention.

RT/TC/8/7/20