Decision

Decision for Welland Autos Vehicle Movers Ltd (OF2011350) and David Stuart Argo – Transpoprt Manager

Published 18 December 2020

In the Eastern Traffic Area

Confirmation of the Traffic Commissioner’s Decision

1. Background

Welland Autos Vehicle Movers Ltd holds a Standard International Goods Vehicle Operator’s Licence authorising 5 vehicles and 1 trailer. The Director is Alan Pitkeathly. The Transport Manager is David Stuart Argo.

There is one Operating Centre: Wharf Lodge, Harrington, Northampton NN6 9NP. There is one declared contractor showing on the licensing record: Marcus James Boucher of Desborough undertaking Preventative Maintenance Inspections of vehicles and trailers at 8-weekly intervals. It emerged in evidence that Mr Boucher is the owner of Corby Commercials, but the operator failed to provide that clarification after the DVSA visit.

There are no previous compliance issues recorded against the licence.

2. Hearing

The Public Inquiry was listed for today, 18 November 2020, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was present in the form of the Director, Alan Pitkeathly, accompanied by the Transport Manager, David Argo.

The operator was directed to lodge documents in support by 5 November 2020 and in particular, but not limited to:

• up to date finances, showing access to the required average over a three-month period;
• regular safety inspection records for the last 9 months;
• maintenance contract(s);
• driver defect reports for the last 9 months;
• forward planner;
• evidence of systems for ensuring compliance with the drivers’ hours and tachograph legislation;
• evidence of training or disciplinary action received by drivers and managers.

Financial evidence was lodged, and the average exceeded the prescribed sum.

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)(b) – condition to notify changes in maintenance arrangements
• 26(1)(c)(iii) – prohibitions
• 26(1)(ca) – fixed penalties
• 26(1)(f) – undertakings (drivers’ hours and tachographs, vehicles and trailers kept fit and serviceable, driver defect reporting, maintenance records)
• 26(1)(h) – material change: finance
• 27(1)(a) – good repute, financial standing professional competence
• 28 – disqualification of directors and operator to be considered

David Argo was called to Public Inquiry for me to determine whether he had met the statutory duty to exercise continuous and effective management of the company’s transport activities, and therefore, whether it was necessary for me to make a direction against his repute, which might prevent him from relying on his Certificate of Professional Competence.

4. Summary of Evidence

On 5 February 2020, whilst in service for this operator, vehicle HX56PGV attracted an immediate S marked prohibition notice when it was found that 6 of 6 wheel nuts were loose (page 79). In the opinion of the issuing Examiner, the defect should have been identified on the driver walk round check by Driver Attwell. A Fixed Penalty Notice was issued for road wheel security.

I refer to paragraphs 34 and 35 of Statutory Document No. 1 on Repute and Fitness. The issuing of this penalty for a very serious deficiency in the wheels of this vehicle, equates to a most serious infringement, as defined in Annex IV of the Regulation (EC) 1071/2009, which places repute at issue, as per Article 6(2)(a).

A delayed prohibition notice was also issued for “loss of air in braking system when brake applied”.

The vehicle was being driven by a new driver, Mr Attwell, under instruction from Mr Pitkeathly. The operator and Transport Manager queried the number of loose wheel nuts and whether the driver should have identified the state of the wheel nuts. I directed the operator to the photographs. The movement behind the washers is self-evident, but they apparently thought it appropriate, using a visual check and despite the accrued dirt on the vehicle wheels.

A joint DVSA Traffic and Vehicle Examiner investigation was carried out at the company’s operating centre on 16 March 2020. I refer to the findings of Vehicle Examiner, Robert Giddings in his statement (pages 46 to 57). In summary:

• there was no wheel nut/fixing torque log kept for any vehicle
• there was no VOR system in place
• there were no vehicle first use inspections
• there were gaps in inspections, exceeding the eight-week interval
• there was no evidence of rectification of defects in the vehicle files, but defects are found during inspections, with no follow up action recorded
• there was no effective maintenance contract in place
• Immediate Prohibition issued to HX56PGV on 5 February 2020 - collars could be turned by hand, witness marks of nuts cutting into wheel face, photographs taken.

He noted that whilst the notified maintenance contractor remains listed as Marcus James Boucher of St Marys Yard Desborough but should refer to Corby Commercials. Mr Giddings helpfully confirmed that Corby Commercials has an open pit and a decelerometer, but no roller brake tester or headlamp aim tester. These could be accessed at a neighbouring unit, but inspection records showed that roller brake tests only occurred at annual test and in preparation for that. The inspection forms are described as electronic, which are emailed to Mr Argo, but there were significant gaps between the form and signature to confirm receipt.

Inspections of FJ11FGX appeared to be within the declared intervals but HX56 PGV was extended to 10 weeks between 21 October 2019 and 2 January 2020. The wall planner omitted annual test, insurance, tax, or tachograph calibration dates.

There was no VOR system employed. Records were missing tyre pressures and the defects identified were vague. No rectification evidence was kept in the vehicle records. The Examiner was advised by Mr Argo that there is no periodic wheel torque log or wheel-off policy.

Driver defects reports were being completed and passed to the Transport Manager but there was no record of rectification or a signature to confirm that the vehicle is roadworthy. The defect reports are provided to the Transport Manager, but it is unclear who the defects are reported to. The sheets are stored in driver files and the driver defect reports for vehicle HX56PGV (which received the above prohibition notice) could not be located.

One vehicle VX61GNZ was checked onsite and was cleared of defects. The annual test failure rate is at 14.29% (page 83).

The findings of Traffic Examiner Darren Lewis are set out in the TE visit report (pages 64 to 75) and can be summarised as follows:

• there was no formal documented induction process for new drivers. i.e. license checks/drivers’ hours awareness/company policy etc; no written record of any ongoing training made or employee/driver handbook/instructions
• no periodic checks of driving licenses are undertaken/ recorded, including DCPC
• no manual records appear to be made in respect of other work undertaken, i.e. driving out of scope etc.
• WTD records incomplete with no manual records entered on the FTA Vision system to provide full analysis and accurate reports, the Operator was apparently unaware of what WTD reference period was in use
• there were no records to cover driving of the 3500kg vehicle, no manual entries, or timesheets available showing when drivers have driven this vehicle
• the operator did not know how to use the FTA Vision tool to monitor driving licence, CPC, driver card, MOT, etc. expiry dates and alert the operator to the approaching dates or even to produce a full set of tachograph reports including drivers hours, working time, missing mileage, lead in times etc.
• analysis of the records for Alan Pitkeathly revealed a high number of infringements, mainly exceeding 4.5 hours driving: between 6 January 2020 and 16 March 2020 there were 12 instances of exceeding 4.5 hours driving with no printouts/explanations produced, no infringement reports or evidence of action
• the VE refers to evidence of similar infringements particularly in July/August 2019
• vehicle monitoring appears to be left to the maintenance provider in respect of MOT/calibration due dates
• no professional development had been undertaken by the Transport Manager since obtaining his CPC other than attending the New Operator Seminar

The Transport Manager’s response by email on 31 March 2020 makes a number of admissions. He was unsure what to say in reply except to indicate that he was working through the recommendations “and rectifying my mistakes”. He advised that he had ordered workshop job cards, wheel nut indicators, and driver time sheets. He went on that driver safety check sheets had been changed to registration numbers and not driver names. I gathered that Mr Attwell was given induction training. Mr Argo advised that he was now checking all driver licences, tachograph and qualification cards. He refers to making photocopies but needs to access the DVLA site, but computers are a challenge for him. He also confirmed that the operator continued to use Corby Commercials, having given instructions that brake tests should be carried out at least 4 times a year.

I nevertheless expected to see an acceptable standard of record keeping and compliance in advance of the Public Inquiry. The records produced appear to have been completed by Corby Commercials and supplied via the R2C system. I refer to the inspection records for VX61 GNZ with an inspection on 8 October 2020 but no discernible brake test. The inspection recorded driver detectable defects including wipers, washers, side markers but the previous driver defect report on 6 October 2020 was a nil report. The preceding inspection, over 9 weeks before, on 3 August 2020 again had no record of a brake test but showed driver detectable defects, despite a nil report for the same day.

I refer to the records for HX56 PGV, which was specified on 9 July 2018 but there has been no inspection since 8 September 2020 (over 10 weeks ago and difference of 22694 km from the previous PMI). There was no evidence of any brake check, but it did disclose driver detectable defects – wipers, near-side mirror, oil leaks, off-side side rail, off-side marker but no equivalent driver report. The previous inspection was on 1 May 2020 (a gap of 18 weeks, but 7608 km from the previous PMI) again shows no brake check and discloses oil leaks, near-side repeater intermittent cab hinges again and wipers again, none repaired and not reported by the driver. The previous inspection was on 14 February 2020 (11 weeks before) with no brake test despite concerns about brake components. It showed the driver’s seat belt as inoperative but not repaired, corroded sideguards, electrical sockets for the trailer and the tow bar to be insecure – not repaired, near-side reversing lamp inoperative – not repaired, rear number plate insecure – not repaired, near-side front wing cracked – not repaired, off-side rear wing rubbed through spray suppression – not repaired, side and rear reflectors missing – not replaced, near-side repeater lens melted – not repaired, cab door hinges, driver’s seat base insecure – not repaired, chip in windscreen – to be monitored but does not identify where or any details, wipers – not repaired, fuel gage back to front – not repaired, off-side inner and outer tyres, although the report gives 10 and 8 mm thickness. The contractor has apparently signed vehicles as roadworthy without a record of defects being rectified. None of those detectable defects was recorded by the driver, which appears to be Mr Pitkeathly. Various tachograph print outs contained in the file confirm operation during the lock down period.

The operator was confused by the apparent gaps in the inspection record. There was a period when HX56 PGV was taken off-road to carry out repairs. The absence of record keeping confirms the findings made by the VE. In evidence I heard about the increasing concern at the inability of the named contractor to accommodate vehicles on the dates when they were booked in. There had been difficulties in obtaining inspection records via the cloud-based system but neither the operator nor the Transport Manager had asked for them to be delivered by email. They have continued with these contractual arrangements and in their own words relied on trust. That decision appears illogical in the face of the decision to employ an in-house fitter to pick up defects which are missed by the drivers (including Mr Pitkeathly) or the contractor. There is no pit, brake tester or diagnostic tools available to the in-house fitter and the incomplete maintenance records failed to disclose any of his work. On his own admission Mr Argo had had to go to the contractor to collect the inspection records which were placed before me. He had forgotten to check for any brake test.

Mr Argo informed me that there had been brake tests, but there was no indication on any inspection sheet. The operator was unable to indicate how many had been set but he thought the agreement was for every other PMI. That would not meet the minimum expectations of the Guide to Maintaining Roadworthiness and is far from the starting point:

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…

It became clear that, even if the contractor had generated brake test print outs neither the Director nor Transport Manager would have the knowledge to read them. On their own admission neither of them is sufficiently up to date with current standards. Mr Argo was very frank in admitting that he had not moved quickly enough to address the concerns expressed by the DVSA Examiners.

By their own admission they have been too slow to react and they do not obviously possess the level of knowledge to achieve even the basic standards required under the Operator’s Licence. The failings still evident at the Public Inquiry result not from malintent but from being out of date and slow to respond. Mr Pitkeathly does not enjoy being the Director and has, in any event, been content for Mr Argo to assume many of those responsibilities.

5. Determination

I am satisfied to the civil standard of proof that I should make adverse findings under sections 26(1)(c)(iii) – prohibitions, 26(1)(ca) – fixed penalties, 26(1)(f) – breach of the undertakings pertaining to drivers’ hours and tachographs, vehicles being kept fit and serviceable, driver defect reporting and maintenance records. The operator has been far too slow to address the matters raised 8 months ago by DVSA.

I point to my findings above. On his own admission, Mr Argos has not exercised effective and continuous management. There was a period of ill-health during the lockdown, but his incapacity was not notified. On current evidence I have real grounds to doubt his ability to do so. That necessitates an adverse finding under section 27(1)(b); due to those failings he has lost his repute as a Transport Manager. He will be disqualified from relying on his Certificate of Professional Competence until he has attended a two-day CPC refresher course organised by a recognised a trade association (FTA/RHA/BAR/CPT), a professional body (IoTA/CILT/SOE/IRTE), a JAUPT accredited training centre or an OCR-approved exam centre offering the transport manager CPC qualification in goods transport, so that he can prove his ability to manage. It also requires a finding that the operator no longer meets the requirement for professional competence, and I must take action under section 27(1)(a).

I have taken account of the improvements and the difficult trading environment but the negatives far out-weigh the minor improvements. I revert to the Upper Tribunal case law. As was stated in 2013/082 Arnold Transport Ltd: that operator’s licensing is based on trust. Since it is impossible to police every operator and every vehicle at all times the … Traffic Commissioners, must feel able to trust operators to comply with all relevant parts of the operator’s licensing regime. In addition, other operators must be able to trust their competitors to comply, otherwise they will no longer compete on a level playing field. In our view this reflects the general public interest in ensuring that Heavy Goods Vehicles are properly maintained and safely driven….It is important that operators understand that if their actions cast doubt on whether they can be trusted to comply with the regulatory regime they are likely to be called to a Public Inquiry at which their fitness to hold an operator’s licence will be called into question…. The attitude of an operator when something goes wrong can be very instructive. Some recognise the problem at once and take immediate and effective steps to put matters right. Others only recognise the problem when it is set out in a call-up letter and begin to put matters right in the period before the Public Inquiry takes place. A third group leave it even later and come to the Public Inquiry with promises of action in the future. A fourth group bury their heads in the sand and wait to be told what to do during the Public Inquiry…. However, it seems clear that prompt and effective action is likely to be given greater weight than untested promises to put matters right in the future. I have repeatedly remarked at the slowness of any change, and the current state of compliance. There have been some improvements in systems, but the management of maintenance is still not evident, suggesting a real risk to road safety.

All the issues go directly to the question suggested by the Upper Tribunal in 2009/225 Priority Freight: how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime? The absence of a Transport Manager clearly does not assist but I have also considered the position of the sole Director. As the appellate tribunal explained in 2012/025 First Class Freight: While it is true that a transport manager must “effectively and continuously” manage the transport activities of the undertaking for which he or she works and is now required to be familiar with a wide range of topics, including the law in relation to operator’s licensing, that does not mean that the person or persons who control an entity which operates heavy goods or public service vehicles is or are absolved of responsibility. Such a person must know enough to ensure that someone employed as a transport manager is up to the job and they must also be able to supervise them to ensure that they do a proper job. It is, after all, for the director or directors of a company to set the standards which the employees are required to meet. As the evidence demonstrates, Mr Pitkeathly does not fulfil that role and prefers to be one of the two active drivers. If he is to continue as a Director, he is in desperate need of training to equip him for that role.

The Most Serious Infringement placed repute at jeopardy but in all the circumstances, I cannot reach a positive conclusion about the ability of this operator to ensure compliance. The operator must be removed from the industry with a loss of repute under section 27(1)(a). I have taken the openness displayed into account in my decision not to disqualify. However, if the operator is to return to the industry in whatever guise the applicant will need to demonstrate that it can meet all the requirements of section 13C, that it is fit to ensure compliance and that management is both effective and continuous. I listened carefully to the description of work commitments. Only 2 vehicles are in operation. This decision allows the possibility of a new application, transfer of the Operating Centre and to continue in business but only if the deficiencies are addressed promptly and can show vehicles being maintained. I have set a revocation date, which takes that and the festive period into account – 23:45 on 4 January 2021.

Richard Turfitt

Traffic Commissioner

18/11/2020