Decision

Decision for BUTT LTD t/a FORTUNA SCAFFOLDING

Published 26 February 2024

1. WESTERN TRAFFIC AREA

2. BUTT LTD t/a FORTUNA SCAFFOLDING

2.1 OH1001756

3. AT A PUBLIC INQUIRY IN BRISTOL

3.1 6 FEBRUARY 2024

4. BACKGROUND

Butt Ltd is the holder of a restricted goods vehicle operator’s licence authorised for the use of two vehicles from an operating centre at Knighton Lane, Wimborne. One vehicle is shown as in possession. The sole director is Lloyd Butt. The licence was granted in January 2002.

The operator was called to a preliminary hearing in July 2014. Undertakings were recorded:

• that both vehicles would be subject to inspection, all significant defects repaired and evidence provided,

• that Mr Butt would attend a one-day operator licence awareness course,

• that Mr Butt and his then driver would attend training on daily walk-round checks, and

• that a systems compliance audit would be carried out by October 2014.

The undertakings were not fulfilled and the operator was called to a public inquiry in January 2015. By the time of the inquiry, the operator had taken action including joining the Road Haulage Association. I issued a warning and recorded a further undertaking for a follow-up compliance audit. There is no record on file of that audit having been submitted and the undertaking remains unfulfilled on the licence.

A warning letter was issued in 2021 due to the operator using an unauthorised operating centre. A variation was subsequently granted to regularise the position.

On 12 October 2023, DVSA Vehicle Examiner Timothy Collins carried out a maintenance investigation and found matters to be unsatisfactory. Shortly after, on 22 October, DVSA Traffic Examiner Richard Smith conducted an investigation of driver-related matters and found significant shortcomings there too.

5. THE PUBLIC INQUIRY

Mr Lloyd Butt attended the public inquiry unrepresented. I confirmed that Mr Butt was aware of the potential outcome from the inquiry and content to continue unrepresented. Mr Butt failed to comply with the general directions in that no compliance documentation was provided in advance and I received a disorganised bundle of maintenance documents at the start of the hearing. In the interests of fairness, I take them in to account.

Proceedings were recorded and a transcript can be made available. In writing this decision, I have referred to my written notes.

Finances were of concern. The operator showed access to little over half of the requirement for two vehicles on a restricted licence. Mr Butt told me that he had tried to diversify in to cradles but had been blighted by graffiti. There wasn’t much work generally. He had recently borrowed a sum from Butt Investments Ltd, a family property business in which he had a small number of shares but was likely to inherit more. He didn’t like to borrow money. Only one vehicle was currently in use.

His maintenance provider, Steve Noel, had lost money when Yellow Buses folded. Mr Butt suggested that they may either now be inflating invoices or generating defects that were not present to try to recoup their losses. That was why there were so many defects on the Steve Noel inspection reports.

Mr Butt had taken to carrying out inspections himself to save money. He had no relevant qualification and there were no inspection facilities. Inspections were carried out in the yard.

I asked Mr Butt about the Vehicle Examiner’s comments that the headboard had rotted out and would not contain the poles. I was told it was like that when he bought the vehicle from Dixon Scaffolding just a few years ago. I reminded Mr Butt that the vehicle had been specified on his licence since November 2012. Mr Butt had not thought it had been that long.

Revocation of the licence would be the end of the business. If the licence was to be suspended for a number of weeks his customers would have to wait. If it assisted, he would have the vehicle inspected every six months rather than once a year. Using a 3.5 tonne vehicle was not a viable option.

I closed the hearing and reserved my decision.

6. FINDINGS OF FACT

This is a restricted licence so financial standing is not at issue but access to financial resources is. Mr Butt cannot demonstrate access as of now. I accept that there is “family” money in Butt Investments Ltd but Lloyd Butt is not a director of that business and the money is not within the entity holding the licence. In any case, if the funds were truly available, why had they not been drawn down before now? Mr Butt indicated to both the Vehicle Examiner and to me that cost was the reason he had sought to undertake preventative maintenance inspections himself. I find that the operator does not have access to the financial resources necessary to keep the vehicle fit and serviceable. Section 26(1)(h) is made out in that regard. Being a restricted licence, revocation is not mandatory but I attach significant weight to this finding.

Having heard from Mr Butt and reviewed the compliance documents provided, I find the findings of Vehicle Examiner Collins entirely made out. Of particular note is the difference in outcome between Mr Butt’s inspections and those conducted by a third-party. Mr Butt inspects his vehicle, PB55WTB on 13 March 2023 identifying no defects and signing the vehicle off as roadworthy. On 17 May 2023, Steve Noel Vehicle Engineers Ltd carries out a further, pre-MOT inspection. That inspection identifies twenty-seven defects. The repair bill comes to £5,429 and the repair appears to be carried out with reluctance: the invoice is annotated “customer was made aware of rusted rear chassis rails and holes in floor loading area”. Defects included the need to replace three out of four brake callipers. The vehicle went on to fail its MOT on 7 June for an issue with a rear fog lamp. When it finally passes a week later, there remain four advisory defects.

An inspection is carried out on 16 August 2023. It appears to be in the handwriting of Mr Butt but there is no name and no signature. It identifies a flickering headlamp which is rectified. One number plate light is not working, there is a slight coolant leak and “flitch plates to chassis have severe corrosion (still has 3-4mm of metal each side)”. The next inspection appears to be that of Scott Shearing Vehicle Repairs on 13 December 2023. It identifies twenty defects requiring rectification but it appears Mr Butt takes the vehicle away to repair himself and there is no evidence that anything has been done.

This difference in inspection outcome, taken with the lack of any relevant qualification and the lack of even the most basic inspection facilities cause me to discount entirely the inspections conducted by Mr Butt as nothing more than a paper exercise. On the evidence before me, I find that the vehicle was subject to a meaningful preventative maintenance inspection only twice in a twelve-month period, and the latter of those identifies copious and serious defects with no rectification. It is abundantly clear that the vehicle has not been kept fit and serviceable and Section 26(1)(f) is made out. Given the state of the vehicle, I attach much weight to this finding. It is further supported by the lack of even one clear MOT pass in the last five years.

The Traffic Examiner’s visit found little in the way of formal management processes. Given the size of this scaffolding operation, that is maybe not unusual but it remains unacceptable that there is no formal training in matters such as load security and no checking of driving licences.

Mr Butt failed to comply with the standard directions to provide compliance documents in advance. Only some PMIs, roller brake test prints and a few invoices were provided at the start of the hearing. I was given nothing in relation to driver defect reporting and nothing at all in relation to the traffic matters.

There are some positives. There has been reasonably regular laden roller brake testing. Mr Butt seems to be an honest individual. The use of the vehicle is low with around 6,000 kms being travelled in a year.

The positives do little to offset the substantial negatives. This operator has largely stopped conducting preventative maintenance inspections even at the limited twelve-week frequency specified on the licence. This has been done to save money. There is no money, so that is understandable whilst still totally unacceptable. Mr Butt attended hearings in 2014 and 2015 at which point I sought to put in place management systems to maintain compliance. He does not appear to have honoured the undertaking given at the 2015 hearing. At some point he has moved operating centre but not applied for that until some time later in 2021, generating a further warning letter. The background to that is that, in November 2020, Mr Butt sought to add the current operating centre via a Schedule 4 transfer from another licence. That was not possible as no other operator was relinquishing the site. In March 2021, a caseworker writes to him to urge him to make an urgent application as the new site was already in use. There is a case-note that states “Mr Butt did not apply for an interim as he stated “I’m not paying £68””.

Given the number of interventions by both DVSA and my office, all of which are met with continuing non-compliance, I can only conclude that I cannot trust this operator to be compliant in the future. Despite the limited scale of the operation, I further find that, due to a combination of the state of the vehicle and the lack of finances, this is a business which must come to an end.

I must consider a period of disqualification. The positives above are relevant here. Against those is the continuing non-compliance despite extensive support from both the enforcement agency and the regulator. The operator failed almost entirely to cooperate with the tribunal by failing to provide documentation in advance. I have concluded that Mr Butt needs a period of reflection to consider whether he is prepared to operate heavy vehicles safely and in a regulated environment. In imposing a disqualification, I acknowledge that it will likely have the effect of ending his scaffolding business. If that is the case, then so be it. Public safety must come first and the operation is currently dangerous. Having considered the positives, I adopt the lowest period of disqualification in the statutory guidance.

7. DECISIONS

Pursuant to finding that the vehicles have not been kept fit and serviceable and that there is no access to financial resources, Sections 26(1)(f) and (h) being made out, the licence is revoked. To allow for an orderly wind-down, revocation will take effect from 23:45 hours on Friday 15 March 2024.

Pursuant to Section 28, Lloyd Butt and Butt Ltd are disqualified from holding an operator’s licence from 16 March 2024 until 15 March 2025.

7.1 Kevin Rooney

Traffic Commissioner

12 February 2024