Decision

Decision for Sandilands Pigs Ltd (OF1068171)

Published 18 December 2020

In the Eastern Traffic Area

Confirmation of the Traffic Commissioner’s Decision

1. Background

Sandilands Pigs Ltd holds a Restricted Goods Vehicle Operator’s Licence authorising 1 vehicle and 1 trailer. I was told that the operator has not used the trailer authority for many years. The Director is Sylvia Judith Sizer. Michael Hook was encountered during the DVSA investigation. He described the failure to notify me of this fact as an oversight as he had been fulfilling the duties of a director since 2009. However, his responses suggest confusion in his mind as to the type of licence. He does not appear to have been added to date although he appears as Director on Companies House as well as the sole person of significant control. In her email of 25 September 2020, Sylvia Sizer (Hook) explains that she purchased the business in September 1999. The application was made in her previous name prior to her marriage to Mr Hook in 2009 who then took an interest in the operator. She apologises for the failure to notify the OTC.

There is one Operating Centre: Sandilands Farm, Newark Road, Laughterton, Lincoln LN1 2JT. There is one declared contractor showing on the licensing record: R Eastment & Sons undertaking Preventative Maintenance Inspections of the 06-plate vehicle and the trailer at 12 weekly intervals. Mr Hook has only recently referred to the Guide to Maintaining Roadworthiness and relies on the low mileage to justify the declared intervals despite the recurring corrosion. I was told that the contractor has all the facilities required but the operator was unable to confirm the details or explain the absence of roller brake tests.

There were no other compliance issues recorded against the licence before attendance.

2. Hearing

The seriousness of my concerns was communicated in a letter dated 16 January 2020 and the operator requested a Public Inquiry, with a response to the Examiner’s findings (page 76). Attempts were made to contact the Operator on 4 May 2020 and 12 June 2020 to request further information which might resolve the issues. There was no response. In evidence I was told that the messages had been sent to the other Director’s email (for her business) but were somehow overlooked. The operator confirmed the request for a hearing in its letter of 20 July 2020 (page 91).

The Public Inquiry was initially listed for May 2020, but due to the pandemic, it was relisted for today, 29 September 2020, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was present in the form of Mr Hook.

3. 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)(e) – statements to obtain the licence have been complied with, namely that vehicles would be inspected at the 12-weekly intervals promised, that safety inspections and/or maintenance and repair work would be carried out by R Eastment & Sons, and that the operator would provide a correct correspondence address.
• 26(1)(f) – whether the operator has honoured the undertakings given, namely that vehicles and trailers would be kept fit and serviceable, that maintenance records would be kept for 15 months and made available on request and that drivers would report promptly any defects or symptoms of defects which would be promptly recorded in writing
• 26(1)(h) – whether there has been a material change in the circumstances of the operator so it may no longer be fit to hold an operator’s licence and/or have sufficient available finance to support compliance.
• 28 – disqualification.

4. Summary of Evidence

The operator was the subject of a joint visit by DVSA on 17 December 2019. The Vehicle Examiner evidence of Mr Barstow can be found at page 40 of my bundle with the completed assessment form at page 60. The Traffic Examiner evidence of Mr Dent can be found at page 45 with the equivalent assessment form at page 62.

Mr Barstow’s assessment identified the following shortcomings:

• No available inspection records
• Inspections exceed 12 weekly inspections.
• No forward planning system in place, requires inspection dates, MOT, VED, tachograph calibration dates.
• Daily walk round checks not recorded; advice given to start diary.
• No DDRS in place.
• No recording of defects when they are rectified.
• Maintenance contractor submits vehicle before inspection.
• Mr Hook not listed, with advice given that he should be added to the licence.
• No system in place for wheel nut re-torqueing.

In addition, Mr Barstow refers to the failure items at annual test (body condition, tyre condition, mirrors, tachograph/speedometer) indicating a failure of maintenance.

Mr Dent’s evidence is accurately summarised at section 5 of his report (page 57). He found:

• no systems and procedures in place for the return of analogue tachograph charts
• the few records produced prevented any meaningful analysis of driver’s hours
• no procedures in place for checking driver’s hours or working time compliance

The operator did not respond to the PG13F&G as requested at that time, and the matter was therefore referred to my office.

The operator’s response to the Traffic Examiner (pages 77-78) refers to a 7.5 tonne vehicle operating on Thursdays only and covering 250 miles in that period, delivering pigs. Mr Hook appears to be under the impression that he is an owner/operator as opposed to director of a company but does acknowledge his responsibility for ensuring the completion of preventive maintenance inspections and for compiling driver’s hours records. He indicates that there have been failures which he attributes to ‘naivety’ on his part: for some reason he indicates the mistaken belief that a 7.5 tonne vehicle operating one day a week would be exempt. He refers to a ‘VOSA’ Guide to Maintaining Roadworthiness, although appears to now have the latest version dating to November 2018. He has apparently ensured that the HGV drivers walk round check, pull-out is prominently displayed in the farm office and has now implemented use of a driver defect report. He promises that driver’s hours records will be properly managed. He has also never drawn up a contract with the declared maintenance contractor for safety inspections at 12 weeks, despite the fact that the Guide to Maintaining Roadworthiness, to which he refers, indicates that this may be too long a period for a vehicle of this age. It is clear from his response that the driving has been undertaken by Mr Hook.

I also refer to the letter from Mr Hook dated 28 January 2020 at page 76 of my bundle which appears to refer to a previous licence issued in 1999 rather than this licence which dates to 2007. He confirms that he and the other director married and overlooked the change of her name on the operator’s licence. He refers to the fact that he was originally listed as a transport manager and yet is reduced to rely on a local haulage contractor to advise him if he is in any doubt as to the operator licence requirements. In that letter he encloses a copy of the new agreement with Eastments garage and an up to date safety inspection report. The circumstances of this operator during the pandemic led me to confirm the proposal to revoke this letter, which was communicated under cover of a letter dated 15 July 2020. The Operator responded to these letters and requested a Public Inquiry.

I also received an email from a B Mitchel but through an email account belonging to another unconnected person. B Mitchel tells me that he has been an acquaintance of Mr Hook for many years. He was asked for advice on record keeping for this operation. He does not say when, but the tenses used indicate that his suggestions have yet to be actioned – a wall chart for inspection dates, annual test, VED, insurance. However, I have seen an agreement with the maintenance provider. I am concerned that the operator required advice to obtain preventative maintenance inspection forms and that it required advice to file ‘tacco’ cards and other relevant documents. B Mitchell is apparently assisting with those cards.

In advance of the Public Inquiry I received a written contract with the declared contractor. I also saw a copy of a Preventative Maintenance Inspection prepared using the R2C system dated 3 February 2020 (page 81). That record contains a reference to a decelorometer brake test only. It is unclear whether the vehicle was laden at the time of the inspection despite the fact that the contractor notes that the rear brake discs are corroded, and the pads are recorded as being in a very poor condition. The report also refers to driver detectable defects, which were apparently left to the inspection.

During the Public Inquiry I went through the PMI record dated 24 August 2020 also completed using the R2C system. Mr Hook told me that there had been an inspection during the intervening 6 months but there was no record of this. He also told me that the contractor had been presenting the vehicle for annual test to see what defects needed repairing. Mr Barstow referred to multiple items including body condition, tyre condition, mirrors, tachograph/speedometer. That approach is simply inexplicable and is indicative of the abilities of the operator to ensure compliance. As with the inspection in February, the August inspection failed to confirm that the vehicle was fit and roadworthy. Mr Hook had failed to notice this. I went through the long list of driver detectable defects where there had been no driver report.

The August inspection record shows considerable work to the brakes with corrosion of both rear and front axle discs. Despite the fitting of new pads and discs, there was no rolling road brake test. The contractor was apparently content to rely on a decelerometer. There was no indication of whether the vehicle was laden. I refer to the DVSA Guidance: Heavy vehicle brake test: best practice:

1.1 Locked wheels and the brake test

Vehicles must be fully loaded before being roller-brake tested because the grip between the tyre and the rollers is more effective that way. The wheels keep turning for longer, and a higher brake force will be achieved.

If your vehicle is empty or only lightly loaded, the grip between tyre and the road (or the rollers on a roller- brake tester or ’RBT’) will be lower, and a relatively small brake force will cause the wheels to lock (stop turning).

Once locked, no matter how much more the brakes are applied, the recorded brake force won’t increase. This means that if the vehicle’s load is too light, the wheels may lock before achieving the required brake efficiency.

If a vehicle is properly loaded, there are two concessions in the HGV inspection manual that Driver and Vehicle Standards Agency (DVSA) inspectors can make:

• front wheel lock allowance (FWA): this takes into account the weight transfer to the front axle(s) that occurs when the vehicle is on the road
• passing on locks (locked wheels): if more than half the wheels on a system lock, then the vehicle will pass on locks, unless there’s another reason for failure

You shouldn’t rely on either condition during test preparations. If the wheels don’t lock in the actual test, the vehicle will have to meet the required efficiency.

Remember: a locked wheel does not always mean a good brake

1. Preparing your vehicle for the brake test

Authorised Test Facilities (ATFs) are responsible for making sure that vehicles are properly loaded before the MOT starts. This normally means at least 65% of the vehicle design axle weight (DAW).

You can do this in a number of ways:

• by arranging to load the vehicle or trailer yourself
• by asking the ATF to provide load simulation - a loading fee may apply
• in the case of a tractor unit, using ballasted trailers - ask your local ATF if they have one for hire

Where load simulators can’t be placed above the rear axles, vehicles or trailers - unless exempt by design - must be loaded when tested. This includes:

• any multi-axle vehicle or trailer (excluding tri-axle semi-trailers) with a bogie weight exceeding 10,000kg
• tri-axle tractor units that are fitted with air suspension on any of the rear axles: to provide sufficient load these must be coupled to a loaded semi-trailer, so that the drive axle is loaded at or very close to the plated weight shown in column 2 of the plate and plating certificate

When loading a vehicle for brake test:

• place loads close to the rear axles
• aim to apply at least 65% - and not less than 50% - of the design axle weight to each axle
• if possible, use similar loads to add weight to the vehicle: this will help in placing the loads correctly, and achieve consistency between tests
• where load simulators can’t be placed above the axles - unless exempted by design - the vehicle or trailer must be presented laden

By way of quick reference and to assist the operator with the types of questions to be put to the contractor, I have included the ‘pre-MoT RBT checklist’ prepared by DVSA:

• is the vehicle sufficiently loaded?
• have all the brakes had time to bed in?
• are you aware of the correct method of inspection?
• is the RBT calibrated and in good condition?
• has the vehicle exceeded the minimum efficiency required in the manual?

The operator is concerned with the supply of weaner pigs, mainly to a customer in Yorkshire. Mr Hook is the only driver. He apparently relies on an exemption from the Driver CPC, claiming that he drives less than 30% of his rolling monthly work for this agricultural company. However, he keeps no other records of his working time. He has also written on the face of the waxed analogue tachograph charts, apparently on advice. The outcome is that Mr Hook has received no training to equip him to meet the obligations of the operator’s licence. In the course of the Public Inquiry I had to take him through most of the basic requirements.

There is at least some evidence of driver walk rounds: January 9, 23, 30; February 13, 21, 27; March 5, 12, 19; April 2, 9, 23, 30; May 7, 14, 28; June 11, 18, 25; July 9, 16, 23, 30,; August 13; September 3, 17. Operations have continued during the pandemic so there can be no excuse for the extended intervals. The reports themselves are mainly nil but pick up on minor defects and do not explain the long lists of driver detectable items listed at the infrequent PMIs.

5. Determination

I am satisfied to the civil standard of proof that I must make adverse findings under 26(1)(e) – statement that vehicles would be inspected at the 12-weekly intervals promised, 26(1)(f) – undertakings that the vehicle would be kept fit and serviceable, the rules on driver’s hours and tachographs would be complied, maintenance records would be completed and kept for 15 month, and drivers would report promptly any defects or symptoms of defects which would be promptly recorded in writing.

I refer to the above evidence. This operator has fallen well below the basic standard expected. There is no difference in the standards expected from restricted and standard operators. Road users and members of the public are entitled to the same protections.

The Upper Tribunal decision in 2013/007 Redsky Wholesalers Ltd confirmed the applicability of the “Priority Freight” approach when considering the question of fitness. I therefore posed the question from 2009/225 Priority Freight: how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime?

The continuing failure to notify me of Mr Hook’s appointment amounts to a breach of a condition of the licence and of a statement of intent. Responses were received from Mr Hook and is copied in my bundle. The failure to act following the DVSA intervention does not bode well for future compliance.

The Upper Tribunal reinforced in the appeal of 25 2014/024 LA & Z Leonida t/a ETS: “… it does not matter whether an operator’s licence is held by an owner operator, a partnership or a limited company because in each case the person or persons responsible for managing the business bear the ultimate responsibility for ensuring that the road transport aspect of the business operates in compliance with the regulatory regime.” The case law indicates the range of knowledge an operator is required to possess to ensure satisfactory arrangements. An operator must have satisfactory arrangements and should review the need for further training at regular intervals considering there being no examination to demonstrate ability to manage an operator’s licence.

Mr Hook is now listed on the operator’s licence. The email response from Mr Hook at page 91 suggests that correspondence contacts may not be an effective means of communication. I am far from assured that both Directors are involved let alone capable of managing compliance. I have noted that there are some driver defect reporting, but they are not sufficient. I have noted the use of analogue charts but there are still weaknesses in the work time arrangements. I have not seen a single maintenance inspection report which has been completed to confirm roadworthiness or any effective measurement of laden brake performance. The maintenance records produced, such as they were, showed gaps even in the intervals at 12 weeks, with missing evidence of rectification. Mr Hook is simply unaware of when the wheels are removed from the vehicle, so that there is no effective retorque policy.

In this case I cannot satisfy myself that this operator is capable of ensuring compliance and I make a further adverse finding that there has been a material change in its fitness to hold an Operator’s Licence. Promises are easily made but I look at the period since the Examiners attended and what I find today. Other operators would be entitled to ask why this level of non-compliance has been tolerated. In 2019/025 John Stuart Strachan t/a Strachan Haulage, the Upper Tribunal confirmed the relevance of deterrent action: “one of the aims of the regime is deterrence, both for the appellant and for operators as a whole, who might be tempted to flout the system”. I have considered the impact of intervention on this business. There is only one vehicle in operation. Any suspension beyond a month would apparently impact on its financial viability. In all the circumstances, an operator demonstrating the above shortcomings, must be removed from the business. If the operator can demonstrate that it can comply with the basic requirements, then it might hope to make a fresh application. In carrying out my balancing exercise, I have drawn back from disqualification to allow it the opportunity to apply before the revocation date. The operator’s licence will be revoked from 23:45 on 22 December 2020.

Richard Turfitt

Traffic Commissioner

29/9/2020