Decision

Decision for Skillplane Ltd (OF2013720)

Published 8 March 2021

IN THE EASTERN TRAFFIC AREA

1. SKILLPLANE LTD – OF2013720 AND LEE FARROW – TRANSPORT MANAGER

1.1 CONFIRMATION OF THE TRAFFIC COMMISSIONER’S DECISION

2. Background

Skillplane Ltd holds a Standard National Goods Vehicle Operator’s Licence authorising the operation of 4 vehicles and 1 trailer. The Directors are Ivan Paul Stubbings and Pamela Ann Stubbings. The Transport Manager is Lee Farrow, who was authorised from 7 November 2019.

There is one Operating Centre at Unit G, West Carr Industrial Estate, Attleborough NR17 1AN. There are two declared contractors showing on the licensing record: Bailey’s Transport (1985) Ltd and Volvo Truck and Bus, undertaking Preventative Maintenance Inspections of vehicles and trailers at 6 weekly intervals. At the Preliminary Hearing I was told that the operator would be relying on Volvo Truck & Bus going forward.

The Director, Mr Stubbings, was previously a Director of Lip Plant Ltd - OF1083607. The Transport Manager, Mr Farrow, acted in that capacity from 30 January 2012 to 1 August 2016. That licence was surrendered on 13 February 2019, following grant of this licence. This operator attended a preliminary hearing on 16 March 2020. I refer to my decision at pages 68 and 69, where I recorded that Mr Farrow had failed to attend, as did the former transport manager, Stuart Mills. Mr Mills informed my office that he had ceased fulfilling the role of transport manager in August 2019, although he was not actually removed from the operator’s licence until 6 December 2019. The incident, which led to that referral, had occurred in November 2019. Mr Farrow had re-joined this operator at the end of August 2019. He undertook Transport Manager refresher training on 10/11 December 2019 (page 88). Mr Mills indicated that a letter had been sent to the Office of the Traffic Commissioner in early September, although this was never received. I heard evidence that Mr Farrow was engaged in several other tasks, including the payroll. I referred to the RHA audit in July 2019, which confirmed shortcomings in the maintenance arrangements. I noted the mostly satisfactory TE assessment but on information supplied from the very recent maintenance assessment, I determined that further intervention was a real possibility but allowed until May 2020 to make further representations. A variation application was lodged on 23 January 2020 to add a further Operating Centre at Unit 5, Hackford Business Centre, Hingham Road, Hackford NR18 9HF and to increase authority to 11 vehicles. The financial evidence supplied in support was incomplete so the Office of the Traffic Commissioner requested further documentation but there was no immediate response.

3. Hearing

The Public Inquiry could not be listed in May 2020 due to the pandemic restrictions. The operator, therefore, had additional time to address the matters of concern. It was finally listed for today, 23 February 2020, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was present via video-link in the form of Mr Stubbings, Director, and Mr Farrow, Transport Manager, represented by Ms Charlotte Hunt of Woodfines LLP.

4. 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) – failure to notify changes in transport manager

• 26(1)(e) – statement of intent regarding maintenance inspection intervals

• 26(1)(f) – undertakings (vehicles and trailers to be fit and serviceable, effective driver defect reporting, maintenance recording)

• 26(1)(h) – material change

• 27(1)(a) – mandatory requirements for good repute, financial standing and professional competence by reference to Mr Farrow’s repute, 27(1)(b)

• 28 – disqualification of directors and operator to be considered.

In respect of the application, the hearing allowed the operator further opportunity to satisfy me that the statutory requirements were met, and in particular, the following sections:

• 13A(2)(b) – good repute

• 13A(2)(c) – financial standing and professional competence

• 13A(2)(d) –professional competence – TM repute

• 13C(4) – facilities for maintenance of vehicles.

I am told in written representations that the operator has recently added office facilities at the Hackford Business Centre. The application seeks to anticipate changes in operation with 2 more road sweepers to be delivered this month, in addition to the 3 already in possession. Drivers will continue to regularly attend the office for meetings and catch ups, where Ms Stubbings will be based. Mr Stubbings and Mr Farrow will continue to work across the sites.

The operator was directed to lodge up to date evidence in support by 8 February 2021. The financial evidence proved to be sufficient.

5. Summary of Evidence

To recap, LH07 AHU was stopped, whilst being operated under the operator’s licence, on 22 November 2019. It was found that Driver Patterson’s Driver CPC had expired on 9 September 2019. The driver stated that he thought when he left his former company his CPC was up to date, This raised concerns as to what checks were carried out by the operator, and management of the TM. As a result, within the PTR letter, the operator was given the opportunity to provided explanations. A REL was also sent to the TM Lee Farrow. A DVSA assessment referred to the operator’s Operator Compliance Risk Score, with a total of 6 encounters, 5 involving roadworthiness. It recorded 5 annual tests, with an initial pass rate of only 60%. I was alerted to recent DVSA concerns that PMI intervals have been exceeded and about weaknesses in the maintenance standards. I noted similar concerns around driver defect reporting. The operator was unable to produce tyre defect records as they were left in the files elsewhere. An RHA audit had been completed in July 2019 but the records showed that there was no brake performance testing prior to August/September 2019. Even to the date of the Preliminary Hearing, those tests had not been conducted properly. The operator was directed to the starting point in the Guide to Maintaining Roadworthiness for laden brake tests at every Preventative Maintenance Inspection (PMI). Neither CPC holder nor the Director could tell the Commissioner what the brake readings should show.

The previous Transport Manager, Stuart Mills, was issued with a warning, after informing me that he had left the role of Transport Manager. He was employed as Transport Manager from 6 September 2018 to August 2019. He was not removed from the licence until 6 December 2019. I was assured that the operator and current Transport Manager are aware of the obligations to inform my office of any material changes. It is accepted that there was ‘disruption;’ in the professional competence of the operator.

On the above evidence, I was concerned as to future compliance and the ability of the operator to manage beyond the current authority. The representations confirmed the stop on 22 November 2019, when the driver’s CPC was found to have expired, but the driver is no longer employed by the operator. This occurred during what is described as a period of transition. The case was referred to a Public Inquiry, with opportunity to make further representations during the intervening period.

The operator failed to communicate any action. The Office of the Traffic Commissioner, therefore, put the operator on notice of the potential consequences in the letter dated 15 June 2020 (page 78). Messrs Woodfines responded on 3 July 2020 (page 82) - the operator had booked an audit with the RHA for 16 April 2020, which was postponed due to the pandemic restrictions. The operator had then instructed a transport consultant, Doug Grant, (CV at pages 86 to 87) to carry out an audit but Mr Grant had also been retained to work with the operator and transport manager on a weekly basis, following that assessment. As above, the letter explained that Driver Patterson was a sub-contractor but was no longer used by the operator. In evidence it was confirmed that 3 of the 4 full-time drivers are employees. I referred the operator to the appellate Tribunal decision in 2019/54 Bridgestep Ltd & Tom Bridge, which referred to the factsheet produced by the RHA, and HMRC guidelines on self-employment, which conclude that unless they are an owner-driver, it is very rare for a lorry driver to be legally “self-employed”. That decision highlighted the issues in trying to control drivers who are not employees. Mr Stubbings gave a statement of intent to employ all regular drivers, going forward. The licences of the 4 full-time drivers had been checked and would be subject to systematic checking going forwards.

I am told that, having attended update training, Mr Farrow has implemented quarterly driver licence checks with drivers giving access to the DVLA licence summary. He receives an electronic reminder and printouts are placed on file. Drivers are required to declare any offences or civil penalties. I have seen what is described as an electronic driver training matrix. In addition, the operator has implemented driver vision checks. I was told that driver cards are downloaded on a weekly basis and the vehicle units monthly, using RHA online software for analysis. Mr Farrow reviews the reports monthly and then meets with the drivers to discuss any infringements.

The representations referred to Mr Farrow’s background as originally in accounts but that he gained his CPC qualification in July 2008, together with other safety qualifications. When part of the business was sold, he moved with the operations, but maintained his knowledge through various update courses. He now works office hours on Monday to Friday. On the occasions when there is weekend work, he is also available. He undertook a Transport manager Refresher in December 2019 and has just attended a DVSA online new operator seminar (4 February 2021). I was told that he also has signed up to updates from DVSA and RHA. I was told that it is a short drive of 10 to 15 minutes between the locations.

Mr Farrow had already acknowledged in his response of 24 June 2020 (page 82) that driving licences were not being checked within suitable intervals but referred to putting in place a system for quarterly checks. Rather strangely he referred to his role: “as Office Manager, my main duties being Accounts, Payroll and Administration with the view to me taking on transport manager duties when I had settled into the role and completed my management CPC refresher”. In evidence Mr Farrow confirmed that he was now assisted by Ms Farrow, so that he can devote more time to his statutory duties. He also indicated that Mr Patterson had been hired as a self-employed driver before he took up his role. He uses a driver training matrix to record DCPC hours booked, achieved and expiry dates for driver qualification cards.

The Preliminary Hearing identified instances where PMI intervals had been exceeded. Mr Farrow has since ensured that no vehicles have been inspected outside of the specified intervals despite earlier issues with booking weekend inspections at Baileys. New vehicles are covered by the contract with Volvo, so only 1 vehicle remains with Bailey’s. Continuous and effective management relies on a 12-month forward planner, which is colour coded and includes PMIs, annual test, VED and tachograph calibration. In addition, the operator will receive email reminders from the notified contractors, and where an inspection would be due on a Saturday, it is booked in for the week before. In evidence Mr Stubbings indicated that 2 new sweepers will join the fleet in March with an additional vehicle being sourced from Volvo and due to commence operations in April.

I was told that the inspection forms prepared by Volvo are supplied via an online system, which allows Mr Farrow to log on and check brake and other checks. Paper copies are then downloaded which Mr Farrow checks and signs. PMIs conducted by Baileys are emailed to Mr Farrow to check, these are printed as ‘top copies’ for the file at that time, with originals returned in the post. The written representations acknowledged that laden brake tests had not been undertaken. I was told that Bailey’s has worked with the operator to ensure that meaningful results are achieved. I was referred to correspondence from Baileys, detailing the prompt action to resolve this issue. I was referred to a test on 9 February 2021. The GVW of the relevant vehicle is 34 tonnes and that it will be tested with a laden weight of 17.5 to 18 tonnes.

Mr Stubbings and Mr Farrow outlined the progress made through discussions and instructions to the maintenance contractors. I was assured that the operator and Transport Manager are now fully aware of the contents of the DVSA Best Practice for Brake Testing, Guide to Maintaining Roadworthiness and that previous issues have now been fully resolved. Drivers appear to be reporting some defects. On my assessment of the documentation submitted in advance of the Public Inquiry, I noted the following from the Preventative Maintenance Inspection forms for;

• SJ69 CMO – inspection on 17 December 2020 (due another PMI before the Public Inquiry but not produced) headlamps and roller brake test results of 66%, 41% and 30%; 17 November 2020 – tyres, water in fuel warning illuminated and roller brake test results of 62%, 36%, 29%; 5 October 2020 roller brake test results of 64%, 40%, 30%, with imbalances on the parking brake at Axle 3; 24 August 2020 – roller brake test results of 63%, 38%, and 31%; 13 July 2020 – tyres and roller brake test results of 57%, 33% and 25%, with the imbalances on Axle 3; 2 June 2020 engine warning on dash and roller brake test results of 39%, 24% and 14%, with the vehicle under-laden.

• On the forms for SJ69 CMY I noted on 11 January 2021 – oil leak and roller brake test results of 68%, 43% and 32%, with significant imbalances on Axle 3; 2 December 2020 - roller brake test results of 57%, 32% and 25%; 19 October 2020 - roller brake test results of 65%, 40% and 31%, again there were notable imbalances on Axle 3; 7 September 2020 - roller brake test results of 65%, 40% and 33%, this time the greater imbalances were on Axle 4; 28 July 2020 – screen chip, lamps and roller brake test results of 55%, 30% and 25%, with significant imbalances on both Axles 3 and 4; 25 June 2020 - roller brake test results of 42%, 20% and 19%, indicating that the vehicle was under-laden, with imbalances on Axles 2, 3 and 4.

• On the forms for SF18 WSE I noted on 22 December 2020 Mirror glass, tyres worn to 3 mm and roller brake test results with only two readings of 56% and 19%, with significant imbalances on Axles 2, 3 and 4; 10 November 2020 - all tyres have cuts ‘monitor’ with roller brake test results of 54%, 30% and 21% with a significant imbalance on Axle 3; 29 September 2020, inner tyre flat and customer informed then signed off - roller brake test results of 62%, 30% and 32%, again there were notable imbalances on Axles 3 and 4; 19 August 2020, multiple tyres cut to cords ‘ok to use, TB’ with roller brake test results of 51%, 27%, and 24% imbalances on Axle 3 and 4, 7 July 2020 - roller brake test results of 57%, 28% and 25%.

The operator has implemented its own driver defect reporting forms. It has only supplied copies of those reports where a defect was identified. The representations refer to drivers undertaking minor repairs, which is recorded on the DDRS. Major work would be recorded by the relevant maintenance contractor, with appropriate use of a VOR system. It is acknowledged that there have been occasions where the Transport Manager has not recorded his review of rectification work. The Transport Manager is also said to conduct random spot checks. I am told that these will now be monthly checks and recorded for training or other purposes. Reference was made to a drivers’ walk-round check DVD (FTA), which will be used for retraining as the need arises.

I was referred to the driver induction process and the handbook, confirmation sheet and disciplinary process. However, most of the 6 drivers have been with the operator for years; 3 are employed as sweeper drivers and 3 as HGV/grab drivers. I was referred to the driver qualifications. I was told that toolbox talks occur on a bi-monthly basis. The next topic to be covered is re-torquing.

Steps have been taken to integrate tyre defect records. The tyre management policy, records and retorque policy were produced at the hearing. I was also told about a Mr Bobbin, who is the nominated tyre champion, who completes fleet tyre inspections. Mr Farrow then conducts his random checks. As above those will now take place monthly and will be recorded. It was hoped that Mr Bobbin would gain his CPC, but he has been unable to complete the assessment.

The adverse records at annual test refer to the same vehicle and same day (31 October 2019). BX56 LYW has now been disposed of. The Operator has recently purchased 3 new Volvo units, under finance and has installed tracking units in all vehicles.

6. Determination

I am satisfied that I may make adverse findings in respect of historic breaches of sections 26(1)(b) – failure to notify changes in TM, 26(1)(e) – statement of intent regarding maintenance inspection intervals, 26(1)(f) – undertakings (vehicles and trailers to be fit and serviceable, effective driver defect reporting, maintenance recording).

I referred extensively to the written representations helpfully lodged in advance of the hearing. Those representations acknowledged the additional time, which was afforded to the operator following the Preliminary Hearing, because of the Covid restrictions. I am told that the operator mistakenly believed that an audit would suffice. The operator then encountered difficulties in obtaining an audit from the RHA, with proof of membership attached. I accept the bundle of correspondence showing this exchange and included in the operator’s bundle.

The representations make much of the DVSA assessment. It was submitted that a period of confusion followed the Preliminary Hearing, but the operator has sought professional advice and continues to invest in the operation and employees. The operator has instructed Doug Grant to provide consultancy services and support. I am told that Mr Farrow has found it helpful to have the assistance of Mr Grant who was able to review the systems in place and together implement/amend current practices. The arrangement is now described as providing ‘ad hoc support’. I am told that Mr Stubbings and Mr Farrow work through the licence undertakings together and identify where investment is required. The operator has woken up to shortcomings in the compliance systems and that is reflected in my findings above.

I noted the description of the operations but accepted the representations that the operator had acted to address areas of concern. I have warned both the operator and Transport Manager that there can be no repeat going forward but based on their efforts I was satisfied that I might allow a partial increase in authority to 7 vehicles and 1 trailer.

Richard Turfitt

Traffic Commissioner

23 February 2021