8.3.2023 | Haulage

Port goods operators and DVSA investigations

Ashton’s Legal’s Tim Ridyard sets out below how things can play out. And what to do. 

When a container lorry, or one carrying other goods, is stopped and checked by the Driver & Vehicle Services Agency (DVSA) at the Port of Felixstowe or at the DVSA A14 check site at Elmswell, what happens next?

Assuming all is well – nothing.  However, it may also be the start of an invasive and painful process for the haulier.

DVSA investigations into a road transport operator’s compliance now take two main formats: there will either be actual visits to an operator’s premises or, very frequently now, desk-based assessments (DBAs).

Any DVSA investigation will normally have been triggered by some event, or series or pattern of events, such as, though not limited to the following:

  • an S-mark prohibition on the vehicle that indicates significant maintenance failings;
  • significant excess weight offences or insecure loads;
  • an accumulation of repeated prohibitions;
  • poor annual test history;
  • driver’s hour’s offence including false records.

This will trigger the investigation.

How the road transport operator reacts at this point is critical – a hearing before the East of England Traffic Commissioner may be inevitable, regardless – conversely, it can possibly be avoided with a comprehensive reply and plan of action to put things right.

Unfortunately, numerous operators provide far too little information, not realising that any response to DVSA will form part of the papers before the Traffic Commissioner, and generally a comprehensive reply is needed.  It is vital at this stage to take professional advice and construct the fullest response and plan of action. In short, everything should be thrown at it – including the proverbial kitchen sink.

Maintenance and traffic inspections/visits

Visits to operators to carry out DVSA investigations take place as maintenance investigations and/or traffic investigations.

DVSA mark the investigation visit as satisfactory or unsatisfactory and then recommends action (from no further action to simple advice – to referral to the Traffic Commissioner).  This marking system is not ideal since it does not weight categories in terms of safety importance relative to each other one unsatisfactory mark one whole area of compliance as unsatisfactory.  Also, some are arguably over policed e.g. the area of emissions and safety recalls.  It can be something of a blunt instrument.

Maintenance investigations look at:

  • the condition of vehicles examined (if any);
  • operating centre;
  • inspection/maintenance records: (suitability and completion of records, satisfactory inspection intervals, forward planning, VOR systems and safety recall);
  • driver defect reporting; inspection facilities and maintenance arrangements;
  • vehicle emissions;
  • wheel and tyre management;
  • load security;
  • security requirements;
  • continual professional training of transport managers and evidence of them being ineffective and continuous control.

Traffic investigations cover:

  • driving licencing and training;
  • driver’s hours and record keeping including working time;
  • vehicle monitoring systems (annual test, insurance, tax;
  • operating centre
  • information about systems and documentation for all these areas.

The traffic report is a scored system.  Eleven or more points means a referral to the Traffic Commissioner, but must happen anyway if there are any serious infringement, there is an issue with the integrity of the operator or the transport manager, a change of legal entity or where it is discovered that a variation to the licence was needed.

Desk-based assessments (DBAs)

All of the information listed above is required, but in addition, each operator has to supply extensive explanations of systems, evidence of training and other evidence to prove compliance.  It is a very invasive document.

A problem with the DBA system is that it is all document-based. It is based and marked on written explanations, rather like an exam paper. There is no human interaction. It is impersonal and sterile.

When inspection visits or desk-based assessments have occurred, DVSA will normally require the operator to provide within 14 days for any responses to issues raised. Here, it is imperative that operators respond in full with clear plans to put things right – such plans should be realistic and achievable. Further down the line e.g. at a Traffic Commission hearing, it has to be assumed that evidence of the implementation of the promised improvements can be produced – there has to be action, not just words.

There are important conclusions to take from this:

  • These investigations or assessments must never be underestimated and have to be taken very seriously.
  • The most comprehensive responses and supporting documents need to be produced.
  • It should be assumed that any statement or document will end up before the regulator i.e. the Traffic Commissioner
  • Where necessary, realistic and achievable changes need to be put in place that can be evidenced when required.
  • Proper responses to DVSA could be the difference between action against the operator’s licence or not.
  • It is essential to take professional advice to work through these investigations – the operator’s licence is the “crown jewel” for the road haulage business, without which it simply cannot operate.

If you are a road transport operator facing an investigation or want to ensure you have satisfactory arrangements in place to avoid or manage such an investigation, then please contact Tim Ridyard, tim.ridyard@ashtonslegal.co.uk, and the Road Transport & Regulatory/ Business Defence team at Ashtons Legal.

Tim Ridyard, Ashtons Legal