Decision

Decision for TBF Scaffolding Ltd (OF0101730)

Published 8 October 2020

In the Eastern Traffic Area.

Confirmation of the Traffic Commissioner’s decision.

1. Background

This Operator holds a restricted goods vehicle operator’s licence, which was granted in August 1993, authorising 10 vehicles only. There are no compliance issues recorded against the licence. There is one Operating Centre at 23 Boss Hill Road, Ipswich. There are three notified maintenance providers: Norfolk Truck & Van Ltd, PRM Commercials, in-house.

The notified Directors are Darren Clark, Glenn Collins, Alexander McCallum, Andrew Watts, Alan Ryder, Abigal Draper, Ian Strudwick, Andrew Walker, Sam Lowe. Directors Watts, Ryder, Draper, Strudwick, Walker, and Lowe were only added on 11/12/2019 and after the DVSA intervention and despite Directors Clark, Collins, McCallum, Watts, Ryder, Draper, Strudwick, Walker and Lowe appearing on other Operator licences, including the linked entity holding OF2023337.

2. Hearing

The Hearing took place on 14 July 2020 in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator attended in the form of Directors, Mr McCallum, Mr Clark, and Mr Watts. They were accompanied by Mr Holder and represented by Mr Ridyard, a solicitor from Ashtons Legal.

The DVSA evidence was not at issue.

3. Issues

The call up letter was first issued on 2 March 2020, but the case was postponed due to the pandemic. It alerted the operator that I needed to determine whether I should intervene in respect of the existing authority on the basis of section 26(1)(b) - failure to notify of a change in directors; section 26(1)(c)(iii) - prohibitions; section 26(1)(ca) – fixed penalty notices; section 26(1)(e) – statements of expectation; section 26(1)(f) – undertakings – vehicles fit & serviceable, not overloaded, written driver defect reporting system, rules on drivers’ hours and tachographs; section 26(1)(h) – material change (fitness and finance); and section 28. In addition I was to consider the variation application lodged on 28/08/2019, to increase authority to 15 vehicles under section 17 by reference to section 13B –fitness; section 13C(2) – Drivers hours; section 13C(4) – fit and serviceable vehicles; section 13D – finance.

4. Summary of Evidence

Following the Fixed Penalty Notice issued on 9 April 2019 (page 61), DVSA Traffic Examiner, Gillian Teasdale, requested documents from the Operator on 23 September 2019 to enable record checks for 2 vehicles and associated drivers for the period 1 March 2019 – 1 June 2019. These were received and analysed. On 18 November 2019 the TE informed the Operator, via email, of occasions when vehicles L60BTS and FD12NPP had been driven, without a driver card inserted.

A further Fixed Penalty Notice for overloading was also issued on 9 April 2019 (page 63).

The TE was sent a reply (page 53) by the Workforce Manager, Elsworth Holder, on 19 November 2019, suggesting that the driver (Mr Claxton) who had not used his card, did not have to. On further investigation it was found out that his card had expired, and he had not applied for a new one. He had since been removed from the authorised driver list.

The TE found the operator’s arrangements for drivers’ hours to be unsatisfactory and notified the operator on 25 November 2019. The TE noted that the majority of systems appeared to be in place, but a vehicle had been driven without a card on 71 occasions over consecutive months. That represented a significant failure. The TE’s findings were summarised in the brief as follows: all drivers hours and vehicle unit data must be reviewed on a regular basis and any infringements found acted upon accordingly (it was found during the assessment that a driver had driven vehicle L60BTS throughout the reporting period without using a digital tachograph card. This should have been picked up following the download of the vehicle and review of the data/data reports).

The responses (page 39) were also completed by the Workforce Manager, giving assurances that the infringement process would be tightened up. Assurances were given that Vehicle Unit data and driver cards would be downloaded on a weekly basis, but the card downloads would only last until the driver shows that they can download their cards. Reference was made to loss of driver bonus money (from December 2019).

DVSA Vehicle Examiner, Andrew Bale, (page 45) found that there was no evidence provided to confirm a written Driver Defect Reporting System (DDR). The operator’s claim to have been using ‘smart analysis’ for DDRS was not evidenced. The PG9 issued on 9 April 2019 (page 60) for an inoperative direction indicator is a matter of record.

I noted the gap between the instructions issued in July 2016, and the refresher training in January 2018, which involved 18 drivers. In representations it was accepted that there had been difficulties in producing defect reports to DVSA, due to an inability to access the archive on the Navman system at that time. That system was abandoned in August 2019 when it was discovered that the archive was limited to 185 days. As a result, there was no auditing. I saw examples of those printouts and have today seen examples of the written driver defect reporting system. I am concerned that driver detectable defects are still occurring at PMI, without having been identified by drivers. The numbers are limited, and Mr Holder has assured me that they are investigated with the relevant driver.

I am told in representations that there was a system for oversight whereby Mr Holder or the two in-house mechanics would carry out random checks. The reports do not appear to have been formalised but reports now rely on the serialised books issued to each vehicle. The defect sheet is apparently meant to be signed off. I observed the vehicle file for L60 BTS and would like to see those defect reports within the chronological vehicle file as well as being entered on the ‘Jaama’ system. There is an intention to use a tablet-based system, ‘My Vehicle’ from August 2020.

On my observation of the vehicle file it continues to be the case that most Preventative Maintenance Inspections are carried out in-house. I noted that the PMI at page 42 appeared to have been signed off by the Workforce Manager. I am told that this has now ceased. The single metred brake test was not meaningful as the vehicle was unladen resulting in only 41% efficiency on the service brake. I noted the initial annual test pass rate pass rate of 78.57%. The single brake test record provided in response to the reported shortcomings failed to show that a ‘meaningful’ test was conducted.

In representations I was assured that brake testing is carried out every six weeks. The vehicle is apparently sent to PRM although I noted the use of the other contractor as the chosen ATF for annual test. Brake testing was previously completed on a quarterly basis. The operator needs to be aware of the weight of the laden vehicle. For its assistance I refer to the relevant section of DVSA’s Guide: Heavy vehicle brake test: best practice:

4.1 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

I accept the operator’s undertaking to commit to RBT at every maintenance inspection, but that testing needs to be meaningful. I note that the operator was given advice in response to its request dated 27 November 2019, and by reference to the:

• driver defect report system;
• metered brake efficiency tests;
• inspection facilities.

Advice was also given on wheel retorqueing. I have seen that evidence today and in representations. The operator has confirmed the following in-house facilities: two Mechanics, a pit, trolley jacks, torque wrenches.

What was particularly concerning was that this was left to the Workforce Manager. No directors engaged in the DVSA investigation and the declaration section on the formal response form, was left blank. However, the call to Public Inquiry has prompted a detailed internal investigation even during the restrictions arising from the COVID-19 outbreak. I do not need to repeat all of the conclusions, which have been communicated to me. There has been an acceptance of failures in the governance arrangements with too much reliance on reactive reporting rather than proactive monitoring which the Bord employs across other areas of regulatory performance. I accept the operator’s admission that it had “failed to live up to the commitments undertaken when the Company was granted an Operator’s Licence.”

I do not intend to repeat the representations on each incident. The recent assessment by the Traffic Examiner has confirmed the existence of a large number of historic drivers’ hours offences and some long distances where vehicles have been used without cards inserted. The failings were not just limited to the 71 occasions when Mr Claxton drove without a card. However, he should have been managed properly. That failure illustrates the weaknesses which were present in management and which I am assured have now been addressed. Mr Holder did raise his concerns with Mr Sharman but there were not the processes in place to ensure that they registered as a risk with the Board. Mr Clark attended the Public Inquiry today to acknowledge that he should have taken action.

5. Determination

I am satisfied to the civil standard of proof that there is basis for adverse findings under sections 26(1)(b), (c)(iii), (1)(ca), (1)(e), and (f) – undertakings – vehicles fit & serviceable, written driver defect reporting system, rules on derivers; hours and tachographs. The matters identified by DVSA pre-date the COVID-19 pandemic. I accept that records are now being kept, brake tests are being carried out at every PMI with all results recorded (with the above caveat and undertaking) that new tachograph software has been employed and is in use to allow for the analysis and cross checking of drivers and vehicles, checking of tacho use and WTD hours is now being done every week.

There has been no previous intervention by OTC. The initial failure by Directors to correspond with DVSA and to notify OTC, appears to have been addressed. I acknowledge that Mr Clark and Mr Watts attended an Operator’s Licence Awareness Course in September 2019. Mr Holder attended a Driver CPC course on 19 – 23 August 2019. Mr Harrison (Compliance Manager), Mr Sharman (Works Manager) and Mr Reach (Mechanic) are to attend OLAT course before the end of this month. I accept an undertaking for drivers to attend a Drivers’ Hours Tacho Awareness Course, also with DMP Training in Bury St Edmunds, between 20 July and 31 July.

On that basis and in answer to the “Priority Freight” question, adopted by the Upper Tribunal in 2013/007 Redsky Wholesalers Ltd, I believe that I can trust the operator to comply in future but there is a need for deterrent action so that improvements are sustained. I have acknowledged the immediate impact of any suspension of the licence. The operator hopes to realise potential commercial opportunities. Any expansion will be gradual and may require an additional application for a further Operating Centre. I also need to be satisfied that the requirements of section 13C(2) and (4) continue to be met. The application cannot proceed at this time and will need to be renewed. Representations indicate that the current 10 vehicle authorisation could be reduced to no less than 8 vehicles but that will create some difficulty. Having assessed this case as falling within the starting point of Moderate, as set out in Statutory Document No. 10, I make that direction but for a period of four weeks only.

RT/TC/14/7/20