Truck maintenance: maintain concentration
Having the soundest maintenance regime is key to safe and efficient fleet operation. But how can an operator best manage maintenance contractors to ensure the correct standards are reached and what are the risks of non-compliance?
The maintenance provider might be an external provider, an internal resource, or a combination. However, from an O-licensing point of view, it does not matter: there must be satisfactory arrangements in place to ensure vehicles and trailers are kept fit and serviceable and - to quote IRTE - while “vehicle operators can subcontract their vehicle inspection, repair and maintenance, they cannot subcontract their responsibilities for vehicle road worthiness”.
A failure to manage and control internal or external maintenance providers properly adversely affects an O-licence in two ways:
. firstly, a poor test history and/or prohibitions generate follow-up DVSA inspection visits and the gateway into traffic commissioner (TC) hearings and either a) a public inquiry where revocation, suspension or curtailment can take place or b) a preliminary hearing that determines whether the matter should proceed to public inquiry;
. secondly, and perhaps less immediate and obvious, is that poor management of maintenance contractors can indirectly lead to difficulties in obtaining further additional licences or variations. If a licence increase is sought, an unsatisfactory roadside encounter and test history can slow down or stop the grant of an increased fleet size. In this sense, adverse maintenance events can be a time bomb.
Transport managers who fail to manage contractors properly despite their “continuous and effective” obligation also risk action being taken against their good repute and professional competence. The most recent draft revisions to the senior TCs’ statutory documents continue to emphasise the importance of the transport manager role and how they and operators will be expected to demonstrate continuing professional development, such as appropriate two-day refresher training evidenced at certain trigger points such as five-year licence renewals.
Operators and transport managers need to consider the consequences of failure to manage contractors properly. A very extreme example of mismanagement occurred in the multiple-fatality Bath tipper incident, where the contractor’s work was wholly inadequate over an extended period of time and totally unchecked by the operator.
Such cases are relatively rare and gross negligence manslaughter is only proved where the negligence is extreme and there has been the creation of obvious risks. Poor maintenance work will more commonly lead to roadside fixed penalties imposed on drivers, which feeds back to the TC, or prosecution by the DVSA/police for construction and use offences, all of which are notifiable and affect OCRS figures.
There are also draconian health and safety fines imposed following the change in sentencing guidelines in February 2016. It is now common for six- and seven figure fines to be imposed for non-fatal cases.
In this context, operators need to have proper arrangements in place for maintenance contractors who carry out work on site, as well as arrangements for employees. Every case is investigated individually by the HSE, but an external contractor working at the operator’s site can be regarded in law as being part of the operator’s undertaking where something goes wrong, meaning everyone can be prosecuted.
Any criminal prosecutions brought by the HSE can involve hefty costs orders and affect the good name of the business. Appointing a contractor needs to be carried out through a thorough due diligence procedure.
This must include meeting the contractor, inspecting facilities and information about annual test performance. The following questions should be asked: what qualifications do workshop staff have? Are they IRTE-qualified? Is it an IRTE-accredited workshop? Is there up-to-date knowledge?
Is there an understanding of the expectations of the TCs, for example regarding brake testing? Are there proper insurances in place? The operator must have a contract with every maintenance provider listed on the O-licence, but is the one contracted adequate?
A more detailed contract might be better so that there is a measuring stick and clarity in the event of any dispute. The operator may also wish to include a schedule of service standards and expectations, for example relating to test history and production of information and prompt paperwork.
Operators must demand from maintenance contractors prompt production of paperwork and information relating to inspections and test presentations. Contractors must also inform the operator of adverse and unusual events.
Operators should keep detailed records of communications and correspondence/telephone calls with maintenance providers. All records and documentation provided by maintenance providers must be inspected by the operator and must be complete and up to date.
Any failings need to be rigorously chased by the operator. Incomplete documentation may mean that the work was carried out but not recorded - or not carried out at all. At all times, the operator must expect the very highest standards of workmanship with an excellent test history and an absence of issues leading to prohibitions or test failures/PRS (pass with rectification at station).
The risk here is for the operator to allow the odd failure or mishap to go unmarked or unactioned. However, these own goals accumulate and lead to problems such as the reluctance of the TC to grant an O-licence increase.
All of the above depends on the operator and, crucially, the transport manager understanding what is expected and keeping up to date. After all, how can maintenance providers be managed if they do not know what is expected of them?
Numerous changes came into force in May 2018 relating to testing, vehicle inspections and roadside enforcement. A revised DVSA ‘Guide to maintaining Roadworthiness’ and revised inspection manuals were issued.
But how many operators processed all this material and checked their maintenance contractors were also aware and had discussions with them? It remains the case that countless maintenance providers are ignorant of the TCs’ expectations regarding brake testing, for example.
Every legal change, DVSA policy announcement or other relevant event should trigger the thought: how does this affect our maintenance regime and is our provider aware? By proper constant and proactive policing of maintenance providers - including those in-house - an O-licence can be preserved and criminal liability can be avoided. It also makes good business sense.
By Tim Ridyard
. Tim Ridyard is a partner and road transport regulatory lawyer at Ashtons Legal. Call 01284 732111 or email [email protected]
Criminal convictions: staying on the right side of the law
When considering O-licence applications there are various issues that traffic commissioners (TC) take into account. TCs are tasked with acting in accordance with their overriding mission to “promote safe, fair, efficient and reliable passenger and goods transport through effective and efficient licensing and regulation of the commercial vehicle industry”.
TCs look at an applicant’s fitness to hold a licence based on road safety, fair competition and protection of the environment. In some cases, the presence of a serious criminal conviction affects the decision-making process. Some applications are afforded much more consideration and discretion before a decision is made.
An applicant’s previous criminal convictions are a primary consideration and are at the forefront of any decision-making process - especially relevant is the type of conviction. Certain offences trigger an automatic decision to refuse a licence depending on the type of licence sought.
The type of O-licence applied for - restricted or standard - requires different criteria to be considered by the TC at the application stage. Whether someone is of good repute and/or if they are fit to hold a licence are central considerations in any TC’s examination of whether or not a person can be trusted to remain compliant as an operator.
This consideration will be fundamental in influencing a TC’s decision and can have different results dependent on the type of licence sought. In the case of a standard O-licence, an application will be refused if the applicant is not of good repute.
When it comes to serious criminal convictions, a TC will conclude that an individual is not of good repute if he or she has more than one serious criminal conviction. A restricted O-licence application does not consider whether or not the applicant is of good repute.
Instead, the applicant has to have the requisite fitness to hold an O-licence and comply with its obligations. The difference here is distinct and crucial. In the case of T/2013/07 Redsky Wholesalers, the Upper Tribunal said: “We do not think that fitness is a significantly lower hurdle than the requirement to be of good repute, it is simply a different requirement.”
This means a TC can consider everything he/she thinks relevant and apply overall discretion before making a decision. This can lead to a scenario where two convictions are considered so serious they act as a mandatory bar to obtaining a standard O-licence.
But this also means that an individual’s efforts made to demonstrate proper rehabilitation can be given weight to the extent that a licence can be justifiably granted. What this means in reality is that someone who has been convicted of an offence such as the cultivation of a class-A drug or possession of firearms can, with all good consciousness, be granted an O-licence on the basis that they can demonstrate that they can be trusted to comply with the statutory requirements of such as licence.
A serious conviction is one where one of the following punitive elements of a sentence upon conviction has been imposed:
. a term of imprisonment exceeding three months;
. a fine exceeding £2,500;
. a community service order requiring unpaid work for more than 60 hours.
To put this into context, any one of those penalties could be imposed in a drink or drug driving-related offence. It does not need to be considered as serious as those associated with what one may perceive as someone who engages in more obvious criminal activity.
How then, could someone who has been convicted of a crime at the more severe end of the serious convictions spectrum be granted a restricted O-licence? The answer is that balance and proportionality should be applied.
Where one or more serious convictions are present, the matter will invariably be called to a public inquiry (PI). The TC will most likely take a view that the application should be refused unless they can be convinced otherwise at a PI.
The approach to the PI is crucial and consideration of the statutory documents relied on by TCs is extremely important. However, steps can be taken and the overall message is one of transparency and honesty.
Acceptance of past misdemeanours and demonstration of improvements made since will also be taken into account. Context is important, as is being able to demonstrate and evidence what steps have been taken to show an applicant is rehabilitated.
Being endorsed by a reputable character referee would also help. This isn’t a foolproof approach that results in an application being granted because an application is only as strong as the sum of its parts. There needs to be enough evidence across all of these areas to satisfy a TC that compliance is present and that they can trust it will remain.
By Paul Loughlin
. Paul Loughlin is a solicitor at law firm Stephensons and specialises in regulatory work and criminal motoring offences. He can be contacted on 01942 774061.