Decision

Decision for Jordan Myles Pointon (OD1139795) and JMP Waste & Transport Services Ltd

Published 9 October 2020

In the West Midlands Traffic Area.

Decision of the Traffic Commissioner.

Public Inquiry held in Birmingham on 2 September 2020.

Operator: Jordan Myles Pointon, licence OD1139795.

Applicant: JMP Waste & Transport Services Ltd.

1. Decision

The standard international goods vehicle operator’s licence OD1139795 held by Jordan Myles Pointon is revoked with effect from 0001 hours on 21 October 2020, pursuant to Section 26(1)(c)(iii), (f) and (h) and Section 27(1)(a) and (b) of the Goods Vehicles (Licensing of Operators) Act 1995 (“the 1995 Act”).

Jordan Myles Pointon is disqualified for two years, from 21 October 2020 until 21 October 2022, from holding or obtaining any type of operator’s licence in any traffic area and from being the director of any company holding or obtaining such a licence, pursuant to Section 28 (1), (4) and (5) of the 1995 Act.

Jordan Myles Pointon has lost his good repute as a transport manager, pursuant to schedule 3 paragraph 1 of the 1995 Act. Under paragraph 16(2) of that schedule, he is disqualified for a period of three years, with effect from 21 October 2020 until 21 October 2023, from acting as a transport manager on any operator’s licence.

The application made by JMP Waste & Transport Services Ltd for a restricted goods vehicles operator licence for four vehicles and three trailers is refused, pursuant to Section 13B of the 1995 Act

2. Background

2.1 Operator and applicant details

Jordan Myles Pointon holds a standard international goods vehicles operator’s licence for two vehicles and three trailers. The licence was granted in 2015. Mr Pointon is also the nominated transport manager on the licence.

JMP Waste & Transport Services Ltd was incorporated in September 2017. Its sole director is Jordan Myles Pointon. The company does not hold an operator’s licence: it submitted an application for a restricted licence for four vehicles and three trailers on 6 July 2020.

2.2 DVSA investigation

In March 2020 I received reports from DVSA vehicle examiner Alice Huckfield and traffic examiner Maxine Wolfe. Together, the reports found:

• Jordan Pointon was operating four vehicles regularly, two more than his licence was authorised for;

• there was a very high MOT failure rate of 75% (initial failure rate) over the life of the licence;

• safety inspection records showed missing inspections;

• Mr Pointon was carrying out the safety inspections himself rather than the stated maintenance provider;

• there was no evidence of any brake tests during the safety inspections;

• vehicles were being driven without any corresponding driver defect report having been completed for that day;

• vehicles and trailers had incurred seven prohibitions over the last three years, five of which had involved brake performance issues;

• there was evidence that vehicles were being operated out of MOT and untaxed;

• one vehicle was being operated with an incorrect registration plate. Personal registration number R70 JMP was displayed on a 4-axle Scania when in fact the plate was listed by DVLA as belonging to a 2-axle Scania;

• no analysis of driver or vehicle unit tachograph data was being carried out;

The vehicle examiner concluded that Mr Pointon “had a general disregard for maintenance procedures.”

3. Public inquiry

Concerned by these reports, I decided to call the operator to a public inquiry. Mr Pointon was informed in April 2020 that a public inquiry would be held, but the holding of the inquiry was delayed until 2 September because of the COVID-19 crisis. In the meantime I received an application for a restricted licence from JMP Waste and Transport Services Ltd: I decided to consider both the existing sole trader licence and the application from Mr Pointon’s company at the same inquiry. The call-up letters for the inquiry were issued on 27 July 2020. Mr Pointon was also called in his capacity as transport manager to consider his good repute.

The inquiry took place in Birmingham on 2 September 2020. Present were Jordan Myles Pointon, represented by Andrew Woolfall, solicitor from Backhouse Jones, and DVSA vehicle examiner Alice Huckfield.

3.1 Opening remarks

On behalf of Mr Pointon Mr Woolfall accepted that there had been many failings. Mr Pointon had spread himself too thinly: as maintainer, transport manager, operator and driver. Vehicles had been constantly specified on and de-specified from the licence but this process had sometimes failed to keep up with the reality of which vehicles were actually being operated. Mr Pointon now wanted to bring the sole trader licence to an end and concentrate on a restricted licence for the company. He was bringing other people into the business and contracting out maintenance.

3.2 Evidence of DVSA vehicle examiner Alice Huckfield

Alice Huckfield amplified her report, stating that there was clear evidence that vehicle RX56 DVY had been operated in September and October 2019 without being taxed; its MOT had expired on 30 April 2019. Driver defect reports showed that three or four vehicles had frequently operated on the same day although she could not say for sure whether they had all operated at the same time.

3.3 Evidence of Jordan Myles Pointon

Jordan Pointon stated that he had failed to carry out tachograph analysis for lack of time. He accepted that he had operated a vehicle and trailer out of MOT and while SORNed. He accepted that drivers had not always filled in driver defect reports: he had introduced an electronic driver defect reporting system in February 2020 which had improved matters. Vehicles had not been given roller brake tests (beyond the annual MOT) until January 2020 when he had introduced a four times a year roller brake testing regime (I noted that this claim could not be supported by the records available, which showed only one roller brake test across the fleet since January 2020). His new maintenance contract would include giving the vehicles a roller brake test at every six-week inspection.

Mr Pointon added that he had spread himself too thinly and had taken on too many tasks. He had not had time to attend a training course.

Concluding remarks

Mr Woolfall said that the operator was willing to offer undertakings that:

• Mr Pointon would attend refresher training (he was already booked for both an operator licence management course on 14 September and a two-day transport manager CPC refresher course on 21-22 September);

• roller brake tests would be carried out at every safety inspection;

• another CPC holder (probably Mr Pointon’s brother) would be employed;

• regular independent audits would be carried out;

• tachograph analysis would be carried out by the RHA;

• Mr Pointon would no longer drive vehicles.

Further positive points were the recent installation of an inspection pit in the workshop; the introduction of the electronic driver defect reporting system and the introduction of roller brake tests four times a year.

Mr Pointon fully accepted his serious and substantial failings and that he had not performed properly as a transport manager. None of the failings had been deliberate: they were down to poor management and taking on too much. There had been some remedial action but it was accepted that more could have been done. Mr Pointon had been co-operative and honest both with DVSA examiners and at the inquiry: he had not sought to hide his failings. Mr Woolfall recognised that it was possible that the sole trader licence would be revoked but he believed that the application from the company could safely be granted with the various undertakings offered and listed above.

4. Findings

After having considered the evidence I have made the following findings:

• the operator has failed to fulfil his undertaking to ensure the lawful driving and operation of vehicles (Section 26(1)(f) of the 1995 Act refers). Vehicles and trailers have operated out of MOT and while SORNed. A vehicle has operated with an incorrect registration plate;

• the operator has operated more vehicles than authorised on the licence and has operated vehicles which were not specified on the licence (Section 26(1)(h) and Section 5(2)(c) refer);

• the operator has failed to fulfil its undertaking that vehicles would be kept fit and serviceable. There has been only one first time MOT pass from four presentations; the operator’s vehicles have been issued with seven roadworthiness prohibitions (Section 26(1)(c )(iii) and (f) refer); no brake tests were being carried out despite brakes featuring prominently amongst the reasons for the prohibitions;

• the operator has failed to fulfil its undertaking that drivers would report defects in writing. Several of the roadside prohibitions were issued to vehicles which did not have a driver defect report completed for that day;

• the operator has failed to fulfil its undertaking to ensure the observance of rules relating to drivers’ hours and tachographs. No analysis of tachographs has taken place from early 2019 to August 2020;

I found little evidence that Mr Pointon had effected any real improvement since the DVSA report in March. His claim that he had introduced quarterly roller brake tests in January 2020 could not be substantiated by the documentary evidence, which showed only one such brake test (in May 2020) across the fleet. The new maintenance contract with an outside provider had only recently been concluded. The RHA tachograph analysis had only been carried out at the end of August, a few days before the public inquiry. Refresher training had only recently been booked and had not yet taken place. I observe that demonstrable remedial measures have only really been taken in the last couple of weeks, once Mr Woolfall became involved. The only demonstrable measure taken by Mr Pointon earlier was the introduction of an electronic driver defect reporting system.

4.1 Balancing act

I weighed up the negative issues listed in paragraphs 14 and 15 above against the positive factors listed by Mr Woolfall (paragraphs 11 and 12). I conclude that the positive is far outweighed by the negative. Most of the positive issues are promises for the future rather than improvements brought in directly following the DVSA visits. The operator could not substantiate his claim to have introduced quarterly roller brake tests in January 2020. Mr Pointon’s actual record of compliance is dismal: he has operated with little regard not only for maintenance procedures but also for drivers’ hours and tachograph rules, for the rules relating to the number of vehicles which he is authorised to operate and for laws relating to tax and MOT. The poor condition of his vehicles has posed clear dangers to other road users. Operating more vehicles than he is entitled to and operating vehicles without tax and MOT has constituted a significant degree of unfair competition against those operators who manage their business legally and compliantly.

4.2 Priority Freight and Bryan Haulage questions

Nothing about Mr Pointon’s performance, either before or since the DVSA visits, suggests to me that the answer to the Priority Freight question – how likely is it that the operator will comply in future? – is anything other than “most unlikely”. His failure to comply has been serious, wide-ranging and long-lasting. He has failed to take sufficient remedial action to persuade me that he is serious about doing better in the future. Having answered the Priority Freight question in the negative, this tends towards a positive answer to the Bryan Haulage question – does the operator deserve to go out of business? The extent of its non-compliance – described above – leads me to the conclusion that it does.

4.3 Good repute of transport manager

What is particularly concerning to me is that these serious issues have arisen on the watch, not of an ingenue restricted operator, but of a professionally qualified transport manager. In considering the good repute of Jordan Myles Pointon as transport manager I have performed the same balancing act as set out in paragraph 16 above and have come to the conclusion that no transport manager presiding over this degree of non-compliance and illegality could possibly retain his repute. Mr Pointon’s good repute is therefore lost.

5. Decisions

Mr Pointon’s good repute having been lost, revocation of the licence is mandatory under Section 27(1)(a) and (b) of the 1995 Act. I am also revoking the licence under Section 26(1)(c )(iii), (f) and (h) – see findings above. I am allowing 28 days for the revocation to come into effect, so that the operator can wind down its business and recover its skips.

5.1 Disqualification – transport manager

Having concluded that Mr Pointon’s good repute is lost I must also disqualify him under paragraph 16 of Schedule 3 to the 1995 Act from being a transport manager on any licence. He has completely failed to justify the trust that the public – through the traffic commissioner – has placed in him to ensure that HGVs are operated safely and legally. He has knowingly operated more vehicles than entitled to and vehicles whose MOT has expired and which have been SORNed. He has failed to carry out any kind of tachograph analysis – the excuse that he did not have time to do so is wholly inadequate as this is one of the core functions of a transport manager. I therefore conclude that he should be disqualified from acting as transport manager for a significant period of time – three years.

5.2 Disqualification - operator

For the reasons outlined above, I also conclude that Jordan Myles Pointon should be disqualified under Section 28 from holding or obtaining a licence in the future and from being the director of any company holding or obtaining such a licence. In deciding upon the length of the disqualification, I have taken account of paragraph 100 of the Senior Traffic Commissioner’s Statutory Guidance Document 10. This posits a starting point of between one and three years for a first public inquiry (which this is). The seriousness of the issues would tend to suggest a disqualification period at the upper end of this scale but I have fixed upon a period – two years - in the middle end of this range, giving Mr Pointon some credit for being honest about his non-compliant operations to DVSA and the inquiry.

5.3 Application by JMP Waste and Transport Services Ltd

Given Mr Pointon’s record in operating his sole trader licence, and given that I have now disqualified him under Section 28 from being the director of any company obtaining an operator’s licence, it follows that I am refusing the application by JMP Waste and Transport Services Ltd. The refusal is pursuant to Section 13B of the 1995 Act.

Nicholas Denton

Traffic Commissioner

21 September 2020