2.8.2022 | Compliance

Brake Maintenance – testing times

Tim Ridyard, transport partner at Ashtons Legal, warns us of the failure to comply with the basic law.

There is now a sharp focus on road transport operators being able to demonstrate robust brake maintenance systems and management. This area has been one of the most prominent compliance issues in recent years. Of significant current concern is the use of trailers by traction-only operators and what brake-testing and other maintenance have taken place.

As a reminder, the basic law states:
“Every part of every braking system and the means of operation thereof fitted to a vehicle shall be maintained in good and efficient working order and be properly adjusted.”  (Road Vehicles (Construction) Regulations 1986).

Failure to comply with this can lead to an unlimited fine for an operator and a driver. There is a mandatory endorsement of three penalty points on the driving licence – or a discretionary disqualification. However, the consequences of a failure to maintain brakes properly can be catastrophic, leading to serious accidents as well as custodial sentences where there is death and serious injury. Dangerous driving offences can be committed through the use of badly maintained vehicles, not just bad driving.

The starkest example of appalling brake maintenance was the ‘Bath tipper’ case. On 9 February 2015, two tippers drove down a steep road in Bath; one lost control, killing four people. Subsequent examination of the vehicle found problems with almost every brake on each axle; two did not work at all, and most others were maladjusted. Supposedly, the brakes had been checked at previous inspections by the independent maintenance contractor. This could not possibly have been the case. ABS warning lights had also been ignored. The company’s Director and the maintenance contractor were convicted of gross negligence manslaughter and imprisoned for seven years, six months and five years three months, custody respectively.

Whilst this is mercifully a rare case and contains an unusually bad catalogue of failings, it is no use batting it away as some one-off event, unlikely to be repeated. Complacency is the enemy of good management, and there is no room for negligence when managing fleets.

Operator Licencing
Over recent years, there has been heavy emphasis by the Office of the Traffic Commissioner and DVSA on ensuring operators fully engage in brake safety. It can fairly be said that brake testing is amongst the top priorities operators need to address to ensure operator’s licence compliance.

It is expected – indeed demanded – that at every maintenance inspection (PMI), an assessment of brake performance takes place. No longer is it permissible for records to be blank or evidence brake management with phrases such as ‘all OK’ or ‘yard test OK’ or ‘tested brakes on the way back from (insert location)’. Proper evidence of a meaningful procedure has to be provided. There must be sufficient loads for the testing process.

When any operator is summoned to a preliminary hearing or Public Inquiry before a Traffic Commissioner, they are obliged to submit maintenance records. These must include all brake reports and printouts. These are examined in advance of the hearing – operators are taken to task if performance tests have not taken place at all, or have not occurred at every inspection or if the test data reveals unsatisfactory outcomes or information that requires follow up e.g. the brake tests are unladen or there is an insufficient load, or there are imbalances.

Brake Performance Assessment
There appears to be some misunderstanding that it suffices if brake tests take place four times annually. This may be because DVSA guidance says: “you should get your HGV or trailers’ brakes tested by a roller brake tester (RBT) at least four times per year, including at the MOT.” However, this simply states the minimum recommended number of roller brake tests.

The DVSA guide to maintaining roadworthiness expressly states:

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 test (RBT) is used at each safety inspection to measure individual brake performance and overall braking efficiencies for the vehicle or trailer to be 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.

So, there is no relaxation from assessing brake performance on those service inspections when an RBT is not used. Otherwise, there would be no check required on every other inspection. How could the vehicle then be signed off as roadworthy?

There are a number of further pointers and guidance notes for operators to consider:

• vehicles or trailers should be brake-tested in laden condition
• brake test records need to be attached to the safety inspection record and retained for a minimum of 15 months (they are part of the maintenance records to be kept)
• if the maintenance provider does not have a roller brake tester, this can be carried out elsewhere within the same week as the safety inspection
• either roller brake testers or decelerometer can be used for brake efficiency testing. An electronic braking performance monitoring system (EBPMS) can be used to measure brake performance
• it is possible to carry out brake performance checks through road tests but only where it is impracticable to get a brake efficiency test or measured performance assessment. Road testing is not regarded as adequate for all safety inspections, and DVSA expects a minimum of four brake efficiency tests per annum in any event.

HGV/Trailer Brake Test Report
In February 2022, DVSA issued guidance to assist operators in interpreting brake test results in its publication Understanding your HGV or Trailer’s Brake Test Report. In fairness, the reports are not easy to understand, so it is imperative operators invest time in this to ensure the data can be understood. It is not acceptable simply to receive back a brake test report, only then to file it away as a maintenance record. Instead, it has to be read, analysed, and understood and, where necessary, follow-up needs to take place.

At any preliminary hearing or Public Inquiry hearing, a Traffic Commissioner will interrogate operators. They will expect vehicles to present laden brake tests (the minimum for DVSA is ideally 65% of total maximum weight) and see evidence of their understanding of the brake test data in their records. For example, a vehicle may exhibit a Pass, but this may be Pass (locked), where the wheels have locked during the test, leaving the results that may be inaccurate with a test load not at least 65% of the vehicle weight. Operators are expected to understand and spot these types of technical issues.

It is recommended that operators read in detail any available sector guidance e.g. the guide issued by Logistics UK together with other DVSA material that is to be found here:

Understanding your HGV or Trailer’s Brake Test Report.

DVSA Guide to Maintaining Roadworthiness.

If you require any advice with regard to Goods and Passenger Operator Licencing, including advice concerning DVSA Investigations, correspondence with the Office of The Traffic Commissioner or Traffic Commissioner Preliminary Hearing/Public Inquiry work, then please call Tim Ridyard on 0330 404 7949.

Ashtons Legal

Tim Ridyard, Ashtons Legal