Decision

Decision for Traynors Ltd (OF1071980)

Published 26 October 2020

In the Eastern Traffic Area.

Confirmation of the Traffic Commissioner’s decision.

1. Background

Traynors Ltd holds a Restricted Goods Vehicle Operator’s Licence authorising 4 vehicles only. The Licence was granted from 11 February 2008. The Directors are Mark Nodder, Jayne Marie Traynor, Philip Anthony Traynor, Daniel Traynor, Neil Traynor, John Anthony Traynor. The operator is described by its consultant as an automotive salvage company. Mr Traynor describes the recovery and transport of vehicles and vehicle parts which are then sold for scrap. The vehicles recovered in Great Britain are broken down for parts and exported to the Northern Ireland operation.

There is one Operating Centre: The Boundary, Gorse Lane, Grantham NG31 7UE. The maintenance is shown as conducted by R F Commercials and, latterly Grantham Truck Services with inspections said to take place every 8 weeks.

The correspondence address is in Dungannon, Northern Ireland, where the operator also has an Operator’s Licence, ON1120816(R) authorising 10 vehicles and 3 trailers.

This Operator’s Licence is subject to two additional commitments: external tachograph analysis and a Nil driver defect reporting system. The licence was considered by a Deputy Traffic Commissioner at Public Inquiry on 26 May 2009 when five undertakings were given, and a formal warning delivered. No action was taken at a Public Inquiry in November 2014.

2. Hearing

The Public Inquiry was listed for today, 12 August 2020 in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was present in the form of Daniel Traynor Director, accompanied by Agnes Gray, the previous Company Secretary, and represented by Richard Dawson of Counsel, instructed by DWF Law LLP.

Directions were given to supply evidence by 3 August 2020. It was not posted until 6 August 2020 and arrived on 7 August 2020. The failure to comply with directions places undue pressure on the tribunal at a time when the offices cannot be fully staffed due to social-distancing rules. On 10 August 2020 the OTC received a further email with a bundle of evidence attached and in particular an audit report. The email referred to further zip folder to be served, containing the drivers’ hours’ analysis reports for the period since the latest DVSA visit in November. That was far too late to be considered as part of this hearing.

The financial evidence disclosed is apparently sufficient to support this Operator’s Licence but not when combined with the Operator’s Licence issued by the Transport Regulation Unit for Northern Ireland. The operator has relied heavily on documentation relating to that Licence.

The audit report and addendum prepared by Jim Marsh of AITAC consultancy refers to the auditing carried out as per the undertaking provided to the Deputy Traffic Commissioner at the hearing in May 2009. That ceased in September 2017. On 25 May 2020, he received instructions to carry out an examination of drivers’ hours data and recording from November 2019. He was then requested to attend the Operating Centre on this licence to provide instructions on: the use of the DigiFob Pro device, how to download data and vehicle units, and use of the Tachodisc (SmartAnalysis) reporting systems. He engaged with Driver, Lee Askew who was also described as responsible for the maintenance records, although the depot manager, Mr Symons was present. That arrangement is referred to in the fuller audit report.

3. Issues

Correspondence dated 30 March 2020 communicated the seriousness of the shortcomings. A request for a Public Inquiry was initially received from the Company Secretary and latterly from Daniel Traynor on 24 April 2020.

The Public Inquiry was listed to allow the applicant opportunity to pursue its application and specifically in relation to the following sections of the Goods Vehicle (Licensing of Operators) Act 1995:

• section 26(1)(c)(iii) - prohibitions have been issued to vehicles operated under the licence
• section 26(1)(ca) - Fixed Penalty Notices have been issued in the last 5 year
• section 26(1)(e) - statement of expectation that vehicles would be given safety inspections at 8-week intervals
• section 26(1)(f) - undertakings relating to the, rules on drivers’ hours and tachographs would be observed and proper records kept, vehicles to be kept fit and serviceable, records would be kept for 15 months of driver defect reports, safety inspections and routine maintenance, drivers would report promptly any defects or symptoms of defect that could prevent the safe operation of vehicles and or trailers and that any defects would be promptly recorded in writing, all tachograph charts would be independently analysed and monthly reports would be prepared, acted upon and retained for at least 2 years
• section 26(1)(h) - material change as the operator may no longer meet the requirement to be fit to hold a licence; and may no longer have sufficient financial resources to support maintenance.

4. Summary of Evidence

The two roadworthiness prohibitions (6 January 2016 and 5 September 2019), with a fixed penalty notice and driver’s hours offence notice on the latter, are a matter of record. The DVSA identified shortcomings during investigations which began in November 2019. Vehicle Examiner, Edward Goodman (page 37) and Traffic Examiner, Neill Gardener (page 49), visited the operator by appointment on 28 November 2019 and were met by Daniel Traynor.

Mr Goodman marked the outcome of his inquiries as unsatisfactory. He noted that:

• vehicle records were not satisfactory and up to date, with a declaration of roadworthiness;
• vehicle inspection periods had been exceeded
• weak DDRS with no record of rectification
• forward planner required review
• the operator was not following the Guide to Maintaining Roadworthiness.

Daniel Traynor responded in writing to indicate the following actions:

• the operator had emphasised to the maintenance provider that proper records must be kept
• defects repaired on site would be documented and signed off
• outstanding records were enclosed after they had been misplaced,
• PMI dates would not be missed in future,
• the instance where it was exceeded by 4 weeks was unintentional - the vehicle does very little mileage and had not been used for some time.

Mr Gardener did not see any tachograph analysis sheets, infringement reports or any copies of driver licences, driver cards or driver qualification cards. He expressed concerns about the following:

• monitoring of DCPC,
• safe loading
• driver licences checked every 6 months; no reminder dates set for CPC expiry; some training on loading and safety; no training in tachographs / driver hours; Operator relies on drivers’ previous experience.
• journey and duty planning
• no manager or responsible person signs infringement reports produced; no follow-up training or disciplinary procedure
• no evidence of system for managing agency drivers.
• charts not analysed; only one VU download for V700TRA which was specified in September 2018; therefore records are not stored and retained as required period; no working knowledge of WTD; no disciplinary procedure evident.
• Vehicle monitoring systems rely on the head office in Northern Ireland; advised to enter the tax and insurance expiry dates on the office wall planner.

Again, Mr Traynor responded in writing. He asked for time (a ‘moratorium’ on further enforcement action), suggesting a follow-up in 6 months, on the basis of the following comments and proposed actions:

• Agnes Gray, Company Secretary, has been appointed ‘Transport Advisor’ and will attend on site every 4 weeks.
• Daniel Traynor to take online OLAT presented by the FTA on 27January 2020
• Drivers work Monday-Friday, 8am -6/7pm; so within a 48-hour week;
• The transport planner will ensure all work is in line with tachograph rules and WTD
• In-house training in driver hours and tacho systems has been supplied to all drivers
• All vehicles are now digital;
• VUs and driver cards will be downloaded weekly - data to be analysed on upload and infringements reports produced and retraining provided where needed
• Agency drivers to be formally inducted and given the company handbook; induction to be recorded
• All new systems to be closely monitored by Daniel Traynor and Agnes Gray; discipline to be enforced and recorded.

The TE had retained the 36 analogue charts found in one of vehicle HHZ8270 and then requested data for both the Operator’s vehicles over a 12-month period. Driver details and copies of licences and CPC cards were also requested. Only 7 months of data was provided and driver records were also incomplete. Mr Gardener found that 43% of total distances travelled was unrecorded (equating to 6,917km missing mileage overall). Furthermore, 28 of the 36 analogue charts retained had incomplete centre-field entries.

Mr Gardener completed interviews with Drivers McCracken and Morton. They explained how they took new charts from a box in the office as and when needed. This was not apparently monitored. The Drivers were unaware of any checks when they returned completed charts. They both confirmed that they had received Driver CPC training, which was paid for by the operator. They blamed their failure to complete centre-fields on an ‘oversight’. Driver Conlon failed to attend.

An interview was carried out, ostensibly with Agnes Gray, but it was in the presence of the Director, Mr Traynor. I am not aware of this novel approach to interviewing. Ms Gray appeared to take responsibility for training both director Daniel Traynor and drivers in the use of tachograph systems. She admitted that the operator had not recorded drivers’ knowledge of hours and tachographs but stated that this type of analysis is now carried out to ascertain the Driver’s level of understanding and to identify training needs. Missing tachograph charts were blamed on a recent office re-organisation but Navcam data was supplied. However, Ms Gray was unable to explain the apparent driving off-card. She undertook for drivers to be trained every 3 months. Ms Gray blamed a Fiona Marshall for the poor oversight and absence of checks, including infringement reports. Ms Gray had now assumed those responsibilities and that the operator was now almost entirely digital to try and address the centre-field issues.

Ms Gray was unable to explain why the undertaking given at Public Inquiry in 2009 had been ignored. Mr Traynor offered no comment. Ms Gray offered assurances: All I can say is that none of this can happen again, because we have put in the systems to prevent it. We have now digitalised it lorries which are uploaded every 2 weeks; driver cards every 1 to 2 weeks. I will be doing an audit in Grantham every 4 weeks. My audit will be recorded and kept in the office for examination. Drivers will be spoken to every for weeks regarding any infringements, any issues will be recorded. Licence checks for drivers will be made from their date of their employment and every 3 months as required. As well as the hard copies of the reports being available at Grantham, I will have an electronic back up available should it needed. All drivers will have a 3-monthly training.

An email received on 1 May 2020 (page 76) suggested that a single vehicle added on that same date would continue to be operated despite the fact that I was told that the operating centre had closed. I was also told that Ms Grey would be monitoring the driver defect reporting by WhatsApp. She is the Company Secretary and also took responsibility for training.

The following is taken from the reply received from Daniel Traynor:

In order to clarify our current position, I can advise that whilst we are essentially closed (our offices and main business are closed) we are operating on a severely restricted basis. The operating centre’s gates are only opened to allow for the access and egress of the single truck which may be called upon on an occasional basis to collect insurance vehicles during the lockdown. In simple terms, we are using one vehicle and one driver on reduced hours. This one vehicle will be parked at the operating centre when not in use.

All undertakings of the licence will continue be wholly complied with in respect of this vehicle and driver and all directors will take an active role in implementing the undertakings. Independent analysis will be carried by Ward International Consulting ltd and will be sent to the Traffic Commissioner.

I will immediately advise the Traffic Commissioner’s office of any change in operational circumstances as things progress.

The above addressed concerns as to the unauthorised use of an operating centre. However, there are issues of undertakings not fulfilled and the non-engagement of the listed directors. I have now seen a Transport Manager CPC for Ms Gray, dated 23 October 2012. She is booked on a virtual refresher course to take place on 24 and 27 August 2020. According to the undated DVA audit from Northern Ireland, she is also responsible for the running of those operations. I have been through the 23 page Vehicle and Driver file, which appears to concentrate on GB operations, as it refers to the traffic commissioners; a driver defect report, inspection diagram and quick reference guide to drivers’ hours are appended. There is a more generic Driver Handbook and undated evidence of induction for Driver Lismore (as per section 2 of the audit). I have noted a safety inspection quality check pro-forma and electronic forward planner (section 5 of the audit).

DVA has supplied information (5 August 2020) related to the annual testing of V800TRA and HHZ8270. Driver McCracken received a verbal warning in respect of the Prohibition Notice issued on 5 September 2019. I have noted from the audit report prepared by Mr Marsh that the following NI registered vehicles have been operated: V800 TRA from 1 May 2020 but Mr Marsh states that it was used on 7 March 2020, V700 TRA from 12 September 2018 to 1 May 2020 and again from 18 May 2020; YLZ 8482 from 15 January 2020 to 6 February 2020 but only on 22 January 2020 before being taken to NI for repair, VLZ 6224 from 17 January 2019 to 15 January 2020 but only used to 20 September 2019, and HHZ 8270 from 21 March 2012 to 1 May 2020.

Mr Marsh has picked up on the need for preventative inspection sheets to be examined. In the absence of that check the preventative nature of the inspection regime is completely lost. That limits the operator’s ability to claim the roadworthiness of vehicles.

Mr Marsh refers to the delegation of management to an office administrator, which Driver Askew is due to take over. To quote the operator’s own consultant, the findings summarised above, “reflect the fact that there was an apparent lack of any meaningful management of the transport operations (both vehicles and drivers) as at the date of their visit.” The report indicates that there have been improvements since November 2019, and that there is work in progress to address the ongoing shortcomings.

Mr Traynor refers to releasing Ms Gray from other duties to allow her concentrate on transport compliance at both sites until the operator identifies a suitable Transport Manager and the prospect of a standard national licence application. Ms Gray will report directly to him. He has now attended OLAT and believes that he can now exercise the required oversight. He refers to Mr Marsh’s involvement to train Mr Askew, induct Mr Traynor and Ms Gray into the new procedures but to also provide compliance audits. He tells me that the preparation for the Public Inquiry has been “a wake-up call for the board of directors”. He will therefore appreciate why it is not acceptable mitigation to blame Ms Marshall. He correctly identifies that the directors of the Company must take responsibility for a failure to oversee her work. Mr Marsh previously found her control to be acceptable.

Ms Gray is to concentrate on compliance and has relinquished her role as Company Secretary. I have been referred to her qualifications and experience in Northern Ireland. I am assured that communication will go beyond video-conferencing, but those weekly meetings are intended to focus minds on compliance. Ms Gray is confident that through the support of Driver Askew compliance can be achieved. She refers to the improvements introduced with the support of Mr Marsh, the consultant.

Mr Marsh states that records now include checks of driver licences (via DVLA); DCPC qualification and tachograph cards. He noted the last licence check was on 15 January 2020, but Ms Gray indicates it was in May – there should be documentary evidence retained. Mr Marsh suggests that there has been an improvement from a position where there was a failure to properly monitor the use of the vehicles and drivers, and to have any meaningful compliance and/or quality assurance procedures in place.

I share Mr Marsh’s concerns that there should be proper quality assurance procedures to ensure the effectiveness of maintenance systems. He refers to driver spot checks. He has already identified the issues with the driver app in use. It does not provide for the driver to enter a description of any defect identified and there was no evidence available to demonstrate any monitoring. I remain concerned by the absence of quality assurance.

Ms Gray refers to the two DDRS systems. Her statement refers to work undertaken for motor insurers who require that a report is produced for every journey using a PDA that is provided by the insurer. That is the form that the drivers have been using. I was only provided a copy of a ‘Member’s Agreement’ with End to End Total Loss Vehicle Management Ltd, immediately prior to the hearing. The operator recognises that it does not allow for adequate defect reporting. The Operator Licence requirements are met through a paper defect report, but the company is unable to provide any copies. This is not acceptable and illustrates the obvious risk of confusion amongst the drivers.

As Mr Marsh has confirmed and can be seen from the Preventative Maintenance Inspection records, PMI intervals have been exceeded during the period of the lock down. Vehicles appeared to be moved back to NI for inspection on occasion rather than the declared contractors. I was particularly concerned around the YLZ8482, which was supposedly off road from January 2020 but was moved by Driver Lismore on 22 January 2020 in order to return to NI for repair. I have also noted, particularly in relation to V700TRA that driver detectable defects have been left to the inspection. That vehicle was in regular use throughout March and April.

Ms Gray refers to maintenance contracts with RF Commercials and Grantham Trucks at 8 weekly intervals. She accepts that intervals were exceeded with some stretching to 12 weeks. I have referred to the table produced by Ms Gray. I do not understand the reference where ‘more serious or complicated defects are rectified by RF Commercials or Grantham Trucks’ but I received assurances during the hearing.

By way of dip sample, I have noted that HHZ8270 has not received a rolling road brake test since 7 October 2019 when there was insufficient load on axle 2. The reliance on decelorometer testing appears to be typical of the approach to all vehicles despite the publication of the Guide to Maintaining Roadworthiness in November 2018:

5.3 Braking performance assessment

As per the annual test, every safety inspection must assess the braking performance of the vehicle or trailer. It is strongly advised that a calibrated roller brake tester (RBT) is used at each safety inspection to measure individual brake performance and overall braking efficiencies for the vehicle or trailer to the annual test standards. However, it is also acceptable to use an approved and calibrated decelerometer to measure overall brake efficiency values for vehicles without trailers.

Ms Gray tells me that Grantham Trucks will now roller brake test at every PMI.

5. Determination

I am satisfied, to the civil standard, that I might make adverse findings under sections 26(1)(c)(iii), (ca), (e), (f) - rules on drivers’ hours and tachographs, vehicles to be kept fit and serviceable, driver defect reporting, tachograph to be independently analysed.

I start by revisiting the appeal case of 2001/074 B E Clark, in which the Tribunal indicated that adherence to the rules relating to drivers’ hours is fundamental to road safety.

There has been ineffective management control and insufficient systems and procedures in place to prevent operator licence compliance failings, ineffective analysis procedures in place for drivers’ hours, ineffective or insufficient driver training with insufficient or ineffective monitoring and disciplinary procedures in place. Whether the changes made to ensure future compliance are sufficient remains a matter of conjecture. That is in part due to the delays and interruptions caused around the current pandemic. I was referred to the cancelled flights, which had been booked for Ms Gray in March 2020. Ms Gray’s statement referred to the impact of the pandemic: operations under this licence “all but ceased between 23rd March and 6th July 2020” but on some days a vehicle was used to carry vehicles, but most employees were furloughed. The Northern Ireland business was also closed. Even Ms Gray worked on a limited basis.

I also note that the initial failure rate at annual test for the last 5 years is 20% but this represents one PRS. I note this rate even without a pre-MOT inspection. I am unsure how wise that is given the approach to brake testing. I now understand why the single vehicle was returned to Northern Ireland for test. I have seen the DVA reports but do not expect a repeat.

On my assessment the starting point lies around the Serious to Moderate range, where the operator might expect intervention to range from indefinite or time limited curtailment, which does not materially affect the operation up to revocation with consideration of disqualification.

I have not found the blaming of a former employee to be that helpful to the operator This case is no way as serious as in 2010/063 Cornelius Pryde Hart but the Tribunal made clear The duty upon an operator who undertakes to make proper arrangements so that the rules on driver’s hours and tachographs are observed and proper records kept, is clear. It is not for VOSA or anyone else to take responsibility for advising.

In representations, I was asked to accept that compliance systems and management structures have now been put in place. I was referred to the management structure with Agnes Gray taking on a role of ‘transport manager’ but to be assisted by the depot manager and Mr Askew. Mr Traynor appears to be the lead Director for compliance. Mr Marsh and others refer to ‘regular’ visits by Agnes Gray but I am then told that all relevant documentation will be scanned and emailed to Northern Ireland.

I refer to the statements provided immediately prior to the hearing. I am told that this Public Inquiry is a wake-up call, it needs to be. The operator seeks approval for its plan to apply for a Standard National licence. I cannot prejudge an application, which I have yet to see. I accept that the appointment of a Transport Manager with statutory duties may provide additional assurance but that appointment would need to accord with Statutory Document No. 3. I am told that without an Operator’s Licence the business would shrink and be limited to Northern Ireland. They are highly unlikely to retain the motor insurer work to recover vehicles for salvage.

In applying the 2009/225 Priority Freight question to this restricted operator, as per 2013/007 Redsky Wholesalers Ltd, I consider it possible that the management changes will bring the desired compliance. However, I need to be able to trust this operator to comply - 2006/277 Fenlon. That trust has been tested by the failure to comply with the undertaking given at the last Public Inquiry. That said, now is the time for this operator and its Board of Directors to demonstrate that they are capable of running a transport operation as they undertook to do. They have employed KPIs and must require regular reporting. I am minded to remove the remaining undertakings given at the previous Public Inquiry in May 2009.

I have weighed into the balance the following additional assurances:

• an undertaking to employ ‘Nil’ driver defect reporting with records to be retained and produced in the normal way;
• an undertaking for laden brake testing at every PMI;
• a statement of intent for Drivers Askew and Lismore to attend DCPC training on drivers’ hours and tachographs on 4 September 2020;
• the intention to apply for a standard licence.
• I will require a single full compliance audit against the OTC template within 6 months, to check that management processes are working.

I have taken account of the impact of regulatory intervention. The majority of the work into Grantham comes from two contracts. One with Ageas and the other with e2e. One is a significant client which consists of motor insurers such as RBS, Direct Line, Covea and EuropaCar. In addition to this, there is occasional work from members of the public to recover vehicles for scrap but that is only in the region of 10% of the work. The loss of this licence or intervention in a way which jeopardises the contractual relationships will endanger this operation and the future of the larger business in Northern Ireland. As the Upper Tribunal has recently identified in 2019/025 John Stuart Strachan t/a Strachan Haulage: “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”. That message must be felt by the Board members who are remote from these proceedings in Northern Ireland. They accepted the potential benefits of this licence and must adhere to its responsibilities. There will be a time limited curtailment that will materially affect the transport operation, albeit not for the most significant of periods. The operator’s licence will be curtailed by two vehicles for a period of 14 days, commencing 23:45 today, 12 August 2020. The vehicle to be removed is HHZ8270 and is subject to an order that it cannot be used on any other Operator’s Licence within this jurisdiction for that period – section 26(6).

RT/TC/12/8/20