Decision

Decision for Samuel Benjamin Plowright (OF1089756)

Published 8 October 2020

In the Eastern Traffic Area.

Confirmation of the Traffic Commissioner’s decision.

1. Background

Samuel Benjamin Plowright holds a Restricted Goods Vehicle Operator’s licence authorising two vehicles and one trailer (not used), which was granted from 4 September 2009. He has one Operating Centre at Unit 18A, Bolingbroke Road, Fairfield Industrial Estate, Louth, LN11 0WA.

His declared maintenance contractor, David Blakey Vehicle Repairs Ltd who inspects the vehicles at 12 weekly intervals. This is surprising as, whilst there is low mileage, the vehicles are significantly beyond the 12-year advisory point established in the Guide to Maintaining Roadworthiness.

There is no previous compliance history associated with this licence. There are no prohibition notices or fixed penalty notices recorded against this licence.

2. Hearing

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 but unrepresented.

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)(e) whether a statement made when applying for the licence was fulfilled, namely that vehicles would be inspected at the 12 week intervals. Section 26(1)(f) whether licence undertakings had been adhered to, namely:

• that vehicles would be kept fit and serviceable;
• that maintenance would be completed, retain 15 months of driver and madke available upon request;
• drivers would report promptly any defects or symptoms of defects that could prevent the safe operation of vehicles and/or trailers, and that any defects would be promptly recorded in writing;
• that the rules on drivers hours and tachographs would be observed.

Section 26(1)(h) whether there has been a material change in the circumstances of the licence holder, namely:

• no longer be fit to hold a restricted goods operator licence
• no longer has access to sufficient financial resources

Section 28 – disqualification.

4. Summary of Evidence

DVSA conducted a joint investigation on 16 December 2019. The Vehicle Examiner, Mr Barstow, identified the following areas of concern:

• Only one inspection record for each vehicle in the last 15 months.
• No Forward planning system in place.
• Weaknesses in driver defect reporting, which did not cover all the vehicles.
• Three vehicles have been used on licence, when only two registrations notified.
• Operator disc not showing the correct details on X488EKJ namely X388EKJ.
• Ineffective brake testing.

The Traffic Examiner, Mr Dent, identified his concerns, as follows:

• Admissions by the operator that he had operated 3 large goods vehicles in August & September 2018, in excess of the licence authorisation;
• Not all tachograph charts recorded the driver name and end location;
• No system in place for driver CPC checks (Mr Plowright had not realised his own DCPC had expired in September 2019);
• no system in place regarding regular driving licence checks;
• no recording of other work;
• no system/s in place for analysing digital data;
• no system in place regarding working time regulations;
• no system in place for managing tachograph and speed limiter inspections;
• No planning for insurance, VED and annual test.

The Operator responded by email on 22 December 2019. That is at page 72 of my bundle. It contains admissions that X352 CTH had not been maintained. There was apparently limited appreciation of the standard which should be met, as it applies to all other operators. There was an acceptance of a ‘typing error’ on obtaining the disc for X488EKJ. At no point had this been communicated to the OTC. The operator reassured the Examiner that he would never again operate vehicles beyond the authorised number.

He undertook to ensure that vehicle tachographs are properly calibrated, to plan his own inspection dates with plans already in place for inspections and brake tests with David Blakey and to use a defect book in GN06HYY.

Mr Plowright also admitted that he had driven after his DCPC had expired. It had not even occurred to him that he was required to attend 35 hours training. He referred to purchasing a digital download tool. In evidence I heard that he had been unable to download the vehicle unit since March 2020 and that he was proposing to leave this to be recalibrated when due in September 2020.

That was not referred to in the letter dated 17 March 2020 and received in my office on 23 March. He referred to being the only driver although occasionally assisted by a friend. In evidence I heard that he paid for his friend’s DCPC but that he failed to check his driver’s licence, relying on trust. Mr Plowright now has his own DCPC renewed and continues to drive.

His comments reflect his general approach to the maintenance and indicate how he found himself in the position described by Mr Barstow. Far too much emphasis was placed on the low mileage without appreciating the importance of the age of the vehicle and that, even standing unused, vehicles can deteriorate. He enclosed copies of limited Preventative Maintenance Inspections for the period since the DVSA visit, although far more than had been presented to Mr Barstow. I was able to see an improvement in that there were less driver detectable defects. However, they also illustrated a fundamental lack of knowledge which will hamper future compliance. I refer to the lack of scrutiny of the inspections themselves. Even on the test history, down to 33% pass rate over the last two years, the operator has failed to explore the causes with the contractor. The inspection forms suggest brake performance testing using a roller brake test with percentages show that all the tests were failed. One brake test print out showed an alarming axle imbalance, but Mr Plowright was not equipped to notice it and has not sought education to address this deficiency. He told me that he was unable to book his preferred course, although others must have been available. Another illustration was his tyre tread policy, where he is content for the tread to wear to the legal limit; again, the explanation was around the low mileage.

5. Decision

I am satisfied to the civil standard of proof that I should make adverse decisions under sections 26(1)(e) and section 26(1)(f) - rules on drivers hours and tachographs, vehicles and trailers would be kept fit and serviceable, Driver defect reporting, records incomplete.

I can give credit for the openness of Mr Plowright. He complied with all directions at the request of OTC. However, his response to the Examiners was not as one would have hoped. In 2013/022 David James Roots t/a Orange Coach Travel the Upper Tribunal indicated that the jurisdiction… is ‘preventative’ in nature. By this we mean that TCs are not required to wait and then react after some serious event has occurred because they can, when the evidence justifies it, take action to prevent the serious event from occurring in the first place. I can attribute this to his ignorance but even at the date of the Public Inquiry he was asking questions which he should know the answers to. I do give him credit for wanting to learn but that does not make him fit to operate in the intervening period.

I refer to the useful guidance from the Tribunal in the appeal of 2006/277 Fenlon - It has been said on many occasions that trust is one of the foundation stones of operator licensing. Traffic Commissioners must be able to trust operators to comply with all the relevant laws, rules and regulations because it would be a physical and financial impossibility to police every aspect of the licensing system all day and every day. In addition operators must be able to trust other operators to observe the relevant laws, rules and regulations. If trust between operators breaks down and some operators believe that others are obtaining an unfair commercial advantage by ignoring laws, rules or regulations then standards will inevitably slip and the public will suffer.

This operator has fallen far below the basic standards of the Operator’s Licence. Other operators would be entitled to look at those shortcomings and ask why he is being allowed to get away with it. I am not here to punish this operator but the Upper Tribunal reaffirmed the relevance of deterrence action in the recent appeal of 2019/025 John Stuart Strachan t/a Strachan Haulage.

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. There are only a few to go on, in this case. I cannot reach a positive conclusion. On current performance and knowledge, I have to remove Mr Plowright from the industry and find that he is no longer fit to hold this Operator’s Licence under section 26(1)(h). I will allow a short period before the revocation date, in order to seek assistance and to consider the current management systems. That revocation will take place on 23:45 on 7 September 2020. I have given what credit I can, in not disqualifying this operator. If he can improve those systems and his knowledge, then there is some hope that he might apply for a new licence but that will be for him to show on application.

RT/TC/13/7/20