![[2023] UKUT 264 (AAC)](https://backend.juristeca.com/files/emisores/logo_3a2BKne.png){kind=logo}
The Background
The Background
The background relevant to the appeal can be found in the appeal bundle, the transcript of the hearing, the written decision of the TC and is as follows. The company was granted a standard international PSV licence in August 2002. The licence authorisation was for twenty vehicles with 17 vehicles in possession. There were two directors of the company: Duncan Millman (who played little if any part in the operation of the company) and Diane Millman. The transport manager was PHW. A previous licence held by the company had been revoked in 2002. The company had the benefit of various school transport contracts and provided private hire transport, also for schools.
The TC noted in his decision that the company’s vehicles had incurred multiple prohibitions over recent years and that it had been called to a preliminary hearing in April 2021 due to an adverse maintenance investigation in January 2021. The TC accepted at that stage that significant improvements had taken place since the investigation and noted that drastic fluctuations in the operator’s business brought about by Covid restrictions had made management more challenging. A new management structure was in place and there was evidence of effective systems. He issued a formal warning to the company and recorded the following undertaking:
“A roller brake test will be undertaken in relation to at least every other preventative maintenance inspection”.
There followed a number of prohibitions (PG9s):
26.2.21 - DA52 received an immediate PG9 at its annual MOT test for a bolt missing on axle 2 nearside with obvious signs of movement
14.9.21 – YN53 received an immediate PG9 for an empty brake fluid reservoir
1.11.21 – GN5 received an immediate PG9 for having a steer axle tyre fitted which was more than 10 years old. The explanation was that this was fitted by mistake by a fitter
23.2.22 – DA52 received an immediate PG9 at its annual MOT test for a positive hydraulic leak of brake fluid even without the brake applied. The vehicle also failed on brake systems and components, headlamp aim, chassis condition, exhaust emissions and the exhaust system.
The Appellant had failed to undertake any Investigations into the three immediate PG9’s issued at annual test.
On 4th August 2022, Vehicle Examiner (“VE”) Williams undertook an unannounced maintenance investigation which was marked as “unsatisfactory” for the following reasons:
The MOT final pass rate was 50% against a national average of 91%. A list of 26 annual test failures was included in the report.
The prohibition rate on roadside encounters between 12.1.21 to 4.8.22 was 50% compared to the national average of 20%.
Three vehicles were inspected during the fleet inspection and two were issued with immediate PG9s:
WX03 – was fitted with a tyre that was cut and split and its cords exposed. The last PMI sheet in the vehicle file was dated 23.3.22. It was due a preventative maintenance inspection (“PMI”) on 2.8.22 and should have been VOR’d. It was not.
YJ53 – received an immediate PG9 and 4 delayed PG9s for door sensitive edge not working; axle 2 brake actuator lock nut loose; two seat belt buckles inoperable; contamination of seat. The last completed PMI sheet was dated 14.3.22.
Five vehicle files were taken away for inspection. Four were missing PMI sheets since March 2022. The explanation given by PHW for the missing PMI sheets was that he had been too busy to complete them. He emailed the completed sheets to the VE that afternoon.
28% of PMIs were found to be overdue with no corresponding VOR.
21% of the brake tests were not performed at the same time as the PMIs.
The company was in breach of its undertaking with regard to brake testing. Decelerometer tests had been carried out instead of roller brake tests (“RBTs”) or brake tests had been missed entirely. The company’s decelerometer was not working correctly and report print outs could not be downloaded.
PMI sheets were not signed by the person inspecting the vehicle 27 times and on a few occasions, the wrong mileage had been inserted.
The forward planner was missing one vehicle and PMIs had not been marked as completed since week 24.
Whilst there was a VOR system, it was not being used.
There was no PSV 112 reporting policy/procedure. On 12.7.22 MIL was involved in a fuel spillage on a road as a result of a fuel tank strap failing. 100m of road surface on the B3193 had to be resurfaced due to heavy fuel contamination.
A driver defect reporting system was in place although the defects resulting in delayed prohibitions on YJ53 had not been reported.
The VE noted that the shortcomings he had identified were similar to those identified in 2021 and which had led to the TC calling the company to the preliminary hearing in April 2021. He concluded that the failings demonstrated a lack of overall effective control with major failings identified. The continued shortcomings showed that there had been little attempt by the company to comply with necessary guidance and the required systems and policies. The repeated shortcomings should have been identified by the company and its transport manager and they should have been rectified.
The joint response of Mrs Millman and PHW to VE Williams’ report was as follows:
Six older vehicles had been replaced with five newer ones (between 14 and 24 years of age) at a cost of £75,000.
Despite the absence of PMI sheets, the work was being carried out and notes kept. Brake tests were normally undertaken using a decelerometer with RBTs taking place every other month. The rolling road had been out of commission for approximately three weeks. RBTs would now be undertaken on each PMI.
Additional staff had been taken on in the workshop. Martin Janes was employed as a fulltime engineer although his background was not with PSVs and Alex Hamilton had been taken on to assist with the workshop administration and in the workshop. These were in addition to Harry Millman, Kevin Northam and PHW.
A PMI would take place every time a vehicle was brought into the workshop.
The absence of a vehicle from the forward planner was as a result of the purchase of a new vehicle in July.
The company did have a robust VOR system. The maintenance investigation took place in August when the operation was effectively closed. There was no work in the diary and only one member of the workshop team was working. Keys to the three vehicles examined were kept in a locked VOR box. All VOR vehicles would now have a VOR sign placed in the windscreen and will be marked “VOR” on the fleet list.
It would appear from the poor annual test fail history that Mr Sheppard, the fitter employed between November 2020 and November 2021 was not performing his duties in the correct manner. It was also apparent that the age of the fleet had an impact on his ability and inclination to maintain it. PHW had reverted to preparing vehicles for their annual tests.
There was always an investigation when a vehicle failed its annual test and each failure discussed in depth. Mrs Millman had verbally reprimanded Mr Sheppard on three occasions. In future, investigations would be distilled into a written report.
If defects are identified at PMI which should have been picked up during the driver walkaround check, the driver will be disciplined.
Old tyres are no longer stored in the workshop but are kept behind the workshop ready for removal from site.
The company’s PG9 encounter percentage had improved to 40% since PHW had taken over personal responsibility for PMIs.
Irtec training had been booked but had been cancelled due to COVID. It was hoped that this would be completed by two workshop members of staff.
It had been a tumultuous time with the company having to deal with COVID added to the effect of losing Bruce Millman, Mrs Millman’s husband who had sadly died and who was the driving force behind the company. With a better resourced workshop, a full set of contracts and updated fleet, the company would be compliant and excel in its business.
In the period allowed for the company and PHW to respond to the investigation report, two of the company’s vehicles received further immediate PG9s:
29.9.22 – YN53 – for a road spring, main leaf fractured, offside front axle 2, front spring eye broken.
23.10.22 - WX03 for an insecure rear bumper which was broken and likely to become detached and was protruding and likely to cause injury. A delayed PG9 was also issued for a fuel leakage from the rear engine.
VE Williams’ response to the above was unfavourable. He was unimpressed with the company’s poor performance despite the previous unsatisfactory maintenance investigation with repeated shortcomings identified in August 2022. He considered that there had been little attempt by the company to comply with the necessary guidance and required systems and policies. The shortcomings should have been identified and rectified by the company and by PHW. Whilst the assurances and new policies/systems supplied by the company showed a willingness to improve, the seriousness of the issues found by him in August 2022, within two years of a previous maintenance investigation which also revealed serious issues caused the VE to conclude that the company was not doing enough to meet the necessary requirements.