The traffic commissioners’ (TCs) annual report to the transport secretary for 2017-18 has highlighted the use of illegal AdBlue emulators as a “fashionable” issue that had drawn particular attention from across the industry – pointing out that, although the topic had grabbed the headlines, most of the operators brought before the TCs for emulator use have also had other compliance issues.
The TCs point to two main explanations given for the fitment of these devices: one being that they were already installed on vehicles which were purchased second-hand, and the other being that they were installed to deal with reliability issues on vehicles with SCR systems.
“Operators often follow poor advice, which recommends fitting an emulator device,” the report said. Emulators were now seen as a red flag as far as competent vehicle maintenance was concerned.
Use of the devices suggested “low levels of competence, knowledge or integrity in parts of the industry,” the report continued.
“No operator, transport manager or driver should be giving or taking instructions about tampering with a commercial vehicle. Professional advice should be sought at all times. We remain utterly perplexed as to why any operator would rely on an electrician, for example, to address performance issues on a 44-tonne vehicle.”
The shadow of the Bath tipper crash still clearly hangs over the commissioners, who wrote: “It is in all of our interests to ensure that serious road safety offenders are targeted, investigated and called to account as soon as possible. We have a vested interest in working with DVSA, as the primary enforcement body, to ensure that the whole process of a non-compliance case is properly managed and adequately resourced.
“This is important because it reassures compliant operators that those who compromise safety standards will be identified and dealt with quickly and fairly.
“In 2015, an incident involving a tipper lorry led to the deaths of three adults and a four-year-old girl. Faulty brakes were found to be the cause. The operator and his mechanic received prison sentences, as a result of criminal investigation. It is inevitable that this type of case generates scrutiny of those who are responsible for enforcing safety standards.
“This case was the catalyst for a key media campaign around brake testing. It is also one of the reasons we pushed to implement an enforcement service level agreement with DVSA. The Enforcement Liaison Group proposed that improvements might be achieved through other means and we were advised of an ongoing review of the quality of investigations.”
Even if a service level agreement cannot be reached, the TCs aim to keep up the pressure on DVSA to keep interventions up to a level where road safety issues are rapidly addressed.
However, the report added: “Some commissioners noted a fall in the referral of enforcement cases by DVSA during the year. There have been changes in the reporting process for vehicle examiners, but incidents of serious non-compliance should still be referred.”
Meanwhile, London’s Freight Enforcement Partnership (involving DVSA, the Metropolitan Police and Transport for London) was praised for targeting high-risk offenders.
“Seventy-one per cent of targeted operator visits result in a referral to us for consideration of regulatory intervention,” the TCs reported.
“The unit’s work means they now have a clearer profile of the highest risk operator in London.”
While the TCs raised the issue of there having been no head of enforcement at DVSA, they note on the positive side that the agency has successfully rolled out its remote enforcement office, and Earned Recognition scheme.
The TCs also praised the Health & Safety Executive for its work on load security.
Changes of legal entity remained an issue for operator licensing. The TCs reported that the Vehicle Operator Licensing office now has an interface with Companies House and, in just six months, flagged up 750 limited companies holding O-licences that were in liquidation or had been dissolved. Their O-licences were then revoked by the TCs.
“Every week, for entirely valid reasons, operators are given advice to change the status of their business. Most commonly this involves moving from trading as a sole trader to a limited company. Some accountants know they need to advise operators that they will also need to apply for a new licence,” said the report.
“A licence in the name of a sole trader is not transferrable to a limited company (or vice versa). We regularly see cases where there has been a failure to give proper advice, leaving the operator facing the loss of their licence and a period where vehicles are parked up while the new application is considered.
“The downtime can sometimes be damaging to the business. Sole traders are not the only entity to face difficulties. There is a desperate lack of partnerships in the industry without a written agreement in place to manage changes in membership,” the TCs warned.
“We have produced guidance on legal entities for the industry and regularly remind operators of the need to take appropriate licensing action if they change entity.”
Rather than submit individual reports, this year the English Commissioners have produced a single narrative, in which they warn that adherence to procurement standards such as FORS, while welcome, is not a substitute for conformance with O-licence compliance.
“Operators who strive to get things right can sometimes make mistakes. Likewise, licence holders who seek to gain accreditation elsewhere sometimes find themselves failing to address the basics of operator licensing,” said the report.
“These external schemes may not prevent operators from appearing at public inquiry. It is the operator licence scheme which provides the baseline standard for all.”
DVSA’s Earned Recognition was heralded as: “Genuinely groundbreaking in compliance terms and needs to be extremely robust. We believe it is, and therefore congratulate those far-sighted operators who supported the pilot…
“We hope that the scheme might provide a common platform for those procurers who want firm evidence of a higher level of compliance than comes from an operator’s licence alone.”
Self-employed drivers working for companies are an issue for the TCs, who acknowledge “the clarification issued by HM Revenue & Customs over anti-competitive practices around the self-employment of drivers, who are in reality employees (protected with holiday entitlements, national insurance contributions and access to tribunals). The trade associations should be commended in calling for this to be rooted out.”
Inconsistency in prosecuting professional drivers for offences is challenged by the TCs. Some appear before a court for sentencing before being referred to the commissioners, while others do not.
“There has been a disparity in terms of cases where drivers are prosecuted and those cases referred to the traffic commissioner without prosecution,” the TCs complained.
“Our conduct hearings are not a retrial for offences heard before a court. They are a means to deliver the requirements of the legislation in the interests of road safety and maintaining professional standards.
“The overarching aim of any enforcement – and regulatory – activity is to be consistent. It should not be the case that a convicted driver attends a conduct hearing alongside other drivers who have avoided conviction for more serious offences.
“Even a perception is capable of undermining confidence in enforcement and the regulatory regime that it is intended to serve. The issue might benefit from DVSA undertaking a review of cases to understand whether this simply is a regional concern.”
In more general terms, poor management leads to poor compliance, the TCs found.
“Incompetence around maintenance and drivers’ hours standards remained a familiar theme in our public inquiry work. In almost all cases, the underlying cause for non-compliance points towards poor management and a failure to access proper guidance.
“Operators, transport managers and drivers are caught out through ignorance (there is no defence) and many reveal a deliberate intent to gain a competitive advantage with a disregard for road safety.”
The report urges transport managers who “too often fail” to provide specialist professional knowledge to keep up-to-date.
“These are transport managers who qualified in a now distant decade and their knowledge remains stuck in that same era. Legislation introduced in 2011 gave us additional powers with respect to transport managers who fail to demonstrate good repute.
“At the same time, operators need to be alive to the risks to their own licences, if their transport manager is failing to do his or her job properly. We urge licence holders to regularly check what their transport manager is doing and arrange for their refresher training where it is needed or will simply be beneficial.”
TC Joan Aitken announced that this would be her last full-year report. She is to retire next February.
She recalled a fatal accident in Ross-shire where a young car driver collided with a trailer that was being reversed into an operating centre. Although no prosecutions followed, TC Aitken voiced the view that there: “would have been no need to perform that inherently risky reversing manoeuvre had the operator maintained the extent of yard parking space promised when the licence was granted.”
She continued: “The operator had allowed his yard to become cluttered such that his driver could not turn within the yard; hence the reversing manoeuvres. I suspended the operator’s licence given that they had allowed the operating centre to become unsuitable. I am very wary of operating centres where reversing is the means of access.”
“I continue to consider all wheel loss incidents as potentially needing examination at a public inquiry,” she wrote.
“A wheel loss incident reflects failure of the roadworthiness regime and is dangerous. There is a wealth of good technical advice to operators on how to secure wheels. I have been puzzling, however, over why such instances occur even in the most diligent operation.
“I am tempted to wonder if wheel casings are as strong as they should be but I leave that to persons with the technical expertise which is not mine.”
She was also concerned by ‘fronting’ and the possible use of companies to launder money.
“I know that many linked to serious and organised crime will seek to put forward others to gain operator licences from them. The illegal dumping of waste blights watercourses and land; contracting without paying taxes or sub-contractors blights fair competition and the collective funding of public services and infrastructure.
“I too am concerned at the number of drivers who are paid through companies. We have been useful to the Insolvency Service in drawing attention to directors who have fallen well short of their fiduciary duties under the Companies Acts.”
TC Nick Jones said he was pleased that DVSA was at last recruiting additional vehicle examiners to serve in areas where enforcement had previously been “minimal at best”.
The Welsh language issue was still presenting problems.
“Increasingly I am coming across operators who are at a substantial disadvantage as a result of guidance not being available in their first language,” he said.
“In looking to the future, we had a helpful meeting with Welsh government officials to resolve the standards expected of new bilingual staff; they will be translating routine correspondence into both English and Welsh but will not be expected to translate specialist documents or, in the absence of translated versions, general guidance such as DVSA’s Guide to Maintaining Roadworthiness, which is still only available in English.”
Jones admitted that, ironically, “there have been substantial challenges in recruiting Welsh-speaking staff within Wales”.
Welsh bus operators were benefiting from government-provided training and education sessions, and there was a need for similar provision for HGV operators.
He criticised senior DVSA managers for actions which, for a time, “left my traffic area with virtually no administrative support… the impact of that decision is still being felt. As a traffic commissioner, I need a basic level of staffing and failures to recruit in our licensing office puts at risk those gains in application times that were achieved through the introduction of the new operator licensing digital service.”
The full report of the traffic commissioners, including performance statistics, can be downloaded here.
Images DVSA Crown copyright