Decision

Decision for Apollo Scaffolding (SW) Ltd (OH2024493)

Published 11 April 2024

0.1 In the Western Traffic Area

1. Written Decision of the Traffic Commissioner

1.1 Apollo Scaffolding (SW) Ltd (OH2024493)

2. BACKGROUND

Apollo Scaffolding (SW) Ltd is the holder of a restricted goods vehicle operator’s licence authorising the use of three vehicles; three are in possession. The operating centre is in Hanham Business Park in Bristol. The sole director is Teresa Flook.

This licence was granted by me at an in-person public inquiry in July 2020. The inquiry was called due to previous adverse history in relation to the companies Flook Scaffold Ltd and Flooks of Bristol (Scaffolding) Ltd. Central to that adverse history was the conduct of Russell Flook, Teresa’s husband. A further cause was a DVSA encounter in November 2019 with a heavy goods vehicle whose driver said he was working for Russell Flook and who was wearing an “Apollo” branded jacket. I dealt with the unauthorised use by requiring evidence that vehicles in possession were parked up for one month prior to granting the licence. Educational and compliance undertakings were recorded and the operator made a statement of intent that Russell Flook would be appointed as a statutory director.

On 11 March 2023, DVSA encountered a 3.5 tonne pick-up belonging to the company and driven by Anthony Onion. The vehicle weighed in at 5120kgs, 46.29% overloaded. It had not been taxed since January 2022. Taken with a previous adverse encounter in June 2022 where the load was insecure and the driver had failed to take a start of journey tachograph print (his card being defective), it triggered a DVSA investigation.

Traffic Examiner Gregor Bell visited the company on 28 September and completed his report on 10 November 2023. Russell Flook spoke on behalf of the operator. An undertaking at grant was for the operator to engage a transport consultant for two hours every fortnight to oversee compliance. It emerged that arrangement had ceased in April 2023. Tachograph downloading and analysis had also ceased at that point as had checks of driver licences. Following the visit, the company had failed to provide tachograph data as it had promised to do despite an extension to the deadline. TE Bell identified significant shortcomings, many arising following the termination of the engagement of the transport consultant.

When the case was received in my office, it was noted that Russell Flook had not been made a statutory director as he had promised he would. Searches revealed that he had been declared bankrupt on 22 February 2023 following a petition from HMRC. I called the company to a public inquiry. I called Anthony Onion to a conjoined driver conduct hearing.

3. THE PUBLIC INQUIRY

Teresa Flook, Russell Flook and Anthony Onion attended for the operator represented by Elizabeth Caple, solicitor. Ben Maud, a transport consultant, was also present.

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

Written submissions were provided in advance along with compliance documentation. I noted that the maintenance documentation identified apparent large gaps between inspections. Finances were satisfied as a preliminary matter.

I conducted the driver conduct hearing first and suspended Mr Onion’s vocational entitlement for three weeks.

3.1 Opening submissions

Ms Caple asked for some evidence to be heard in private. I agreed.. Mr Maud left the room.

Ms Caple told me that, in order to be fully open with the inquiry.

Ms Caple acknowledged from the outset that there were many serious matters in this case. The hoped-for outcome was for some mechanism for this operation to continue ideally with at least two vehicles. The legislation allowed for licences to continue where the appropriate conditions were in place. The company accepted that a CPC-holder needed to be in place. The consultant, Clive Skinner, left in March 2023 and systems had been satisfactory to that point. An undertaking for a CPC-holder to be in place would ensure compliance for the future. A suspension of two weeks would be survivable with some notice and some other contingencies had been prepared. That could be combined with a curtailment to two vehicles. A substantially clear compliance audit could allow the curtailment to be lifted.

I indicated that I had been given undertakings and a statement of intent by the operator previously and would be unlikely to rely on undertakings. A standard licence might be the only way forward, but I was a long way from reaching any decision.

3.2 The evidence of Teresa Flook

Mrs Flook adopted the company’s submissions. The company had 3 HGVs and one Transit. Fifteen men were employed, four of whom were drivers. There was a supervisor, Andrew Gardiner. They worked as far away as St Austell. They did a lot of work for solar panel installers and on student accommodation. They had a lot of repeat customers who were primary contractors. Turnover was about £1 Million this year.

Her role was to do invoicing, quotations, risk and method statements and the accounts. She worked closely with Mr Gardiner who had been in the business for years. He had been made supervisor in the last year to cover some of the management duties of Mr Flook. Her sister, a professional accountant, was also assisting the business.

Following the last hearing, they became aware of a bad debt and that bankruptcy was likely. That was why Mr Flook had not been made a director. They should have communicated that to OTC. They should have made him a director straightaway and then been open about the bankruptcy. She had been afraid to at the time. She had learned the need to reach out.

Mrs Flook needed to check with Mr Gardiner whether they could take a job on to see if it was possible. Naturally, as husband and wife, they would discuss issues. The bankruptcy order came into effect on 22 February 2023. She knew that Mr Flook could not then promote the business or manage the men which is why Mr Gardiner was made up.

When DVSA visited, Mr Flook gave his job title as contracts manager. The bankruptcy order would expire within days and he would then become a director.

The transport consultant had worked for them as transport manager and that worked. He left early last year and compliance fell apart. It was bad timing with a family bereavement and Mrs Flook’s eye was taken off the ball. She looked in to trying to get a replacement but couldn’t. Her mother was very ill and needed full-time care.

On the day TE Bell visited, her mum had been taken ill again. She had rung Mr Bell and said she had to wait for the ambulance to arrive. He was happy with that. She had been unable to get the information requested and that should have been a warning but it wasn’t seen. The tachographs hadn’t been downloaded.

Since the call-in, they had got tachographs downloaded and found a new consultant. They now had the help they needed. Mr Maud was planned to take over as transport manager and would be on the operator’s licence if necessary. They were getting an office in the yard now and would meet him a couple of hours a week. The first lot of driver training was Saturday on tachographs and loading.

Mrs Flook understood the seriousness of the situation and it was her responsibility. She totally regretted what had happened. It was accepted that a permanent transport manager was needed. It was acknowledged that promises made had not been honoured. She was disappointed in herself. She felt she had left everyone down. She had learned by her mistakes.

The business would struggle if they lost one lorry. If they lost one for a period of time, that would be OK. With Mr Maud on board, compliance would be OK. Every job was covered. A suspension of a fortnight could be covered by another company transporting scaffolding for them but anything more than that would be difficult. They wouldn’t want to not pay the men for two weeks.

I asked about the bankruptcy and why they hadn’t paid HMRC. Mrs Flook told me that her husband had been advised to go bankrupt and end the business and he took that advice. HMRC were still charging interest on the outstanding balance. They were being investigated to pay it back and they would. I suggested there had been a conscious decision to go bankrupt to write off a debt to the public purse. Mrs Flook denied that strongly. The debt arose because a company in Wales had not paid them and had itself gone bankrupt. I asked why the position hadn’t been disclosed at the public inquiry in 2020. It was embarrassment and they thought I would not take Mr Flook seriously and not grant the licence.

I referred to the maintenance files and noted that one vehicle had gone 43 weeks between inspections. Mrs Flook said that was her fault for not being on top of it. Ms Caple identified one further PMI within that period which reduced it but there was a 36-week gap on another vehicle and June to January on the third.

The Transit had been bought but without the log book and it had been chased but they hadn’t got the tax reminder.

3.3 The evidence of Russell Flook

Mr Flook told me that his previous business had done a big job for another company in South Wales worth £30,000. They hadn’t been paid and then they couldn’t pay their own bills. The bookkeeper moved away. She had been dealing with the Revenue. They stopped trading around 2017 but VAT assessments kept coming. They tried to go online to stop them but couldn’t. CIS was also still coming through. It couldn’t be done over the phone and had to be done online. They struggled and couldn’t do it. The bill just went up and up. He saw an accountant to try to get a true figure of what was owed. The accountant put him in contact with an insolvency practitioner. All the advice was to go bankrupt.

His understanding whilst bankrupt, was that he was not permitted to promote or manage a company. They had stepped-up Andrew so he could manage the men. The bankruptcy had taken a lot longer than they expected. He would be discharged on 23 February but would remain in a form of bankruptcy for three years, maybe longer. They would do whatever it takes to pay back the Revenue. Mr Flook would like to become a director if the business continued. They were determined to make it work. They didn’t know anything else but scaffolding.

3.4 The evidence of Ben Maud

Ben Maud re-entered the room. He had been introduced to Apollo Scaffolding by another transport consultant. He was committed with another company for three days a week. He had worked for I J McGill Transport as operation manager although not a named transport manager. He then went to Massey Wilcox as a transport planner, then Willmott Transport.

Mr Maud was committed to putting things right with this operator. He had agreed a fee. He would be employed direct. He confirmed that he was willing to be associated with this operator even as a named transport manager on a standard licence.

3.5 Closing submissions

Ms Caple submitted that the evidence had been candid and truthful. It was accepted that responsibilities had not been honoured. There had a been a period of time when things had been done well. The most serious issues were in the last 6-8 months. TE Bell had commented that there were a number of very good systems in place. Had he been provided with the tachograph data, the outcome might have been different. Mrs Flook had omitted to get professional help because she was afraid of the position she was in.. The bankruptcy had overshadowed Mr and Mrs Flook and a new licence would be a fresh start. They had learned from their mistakes. With a CPC-holder in place and an undertaking for a future audit, compliance would be assured. Revocation of this licence and granting with a curtailment or suspension would be proportionate regulatory action.

4. CONSIDERATION AND FINDINGS OF FACT

4.1 Maintenance Matters

The operator declared on application that vehicles would be inspected every eight weeks. The evidence from the operator’s maintenance files is the following:

WU64ZBY

Inspection Date	Interval
4 March 2023
17 November 2023	37 weeks
29 January 2024	9 weeks

HY62WSK

Inspection Date	Interval
19 April 2023
7 June 2023	7 weeks
5 January 2024	30 weeks

HN12BZF

Inspection Date	Interval
21 November 2022
18 March 2023	16 weeks
10 January 2024	43 weeks (but Ms Caple identified a further inspection in May 2023)

Ms Caple had clearly identified the gaps in inspections during preparation for the hearing. The call-up letter was sent on 20 December and seems to have catalysed some actions during January this year. When inspections do take place, they generally include a meaningful roller brake test.

The large gaps appear to have led to vehicles being used in a dangerous condition and with defects a driver should detect and refuse to drive the vehicle. When HN12BZF was inspected on 10 January 2024, the nearside main mirror, wide angle mirror and close-proximity mirrors were all broken. The tachograph calibration had expired. It is an 18-tonne vehicle and use of the tachograph is mandatory. There were many less serious defects.

Vehicle HY62WSK was inspected on 5 January 2024. The brake warning light on the dash was illuminated, a stop lamp and an indicator were not working (the indicator required a new bulb holder), there was an oil leak and the offside rear wing was loose. In the positive, the January inspection of WU64ZBY found no significant defects.

It is clear that vehicles have not been inspected when due and that vehicles have not been kept fit and serviceable. These findings go directly to the operator’s fitness to hold a restricted licence and I find s.26(1)(h) made out in that respect.

4.2 Traffic Enforcement Matters

Traffic Examiner Bell found that matters had deteriorated rapidly following the loss of the transport consultant in April 2023. Driving licences ceased to be checked, tachographs ceased to be downloaded. It follows that there can have been no analysis. Mr Bell does comment that the company operates regular hours and drivers take breaks so actual drivers hours non-compliance is unlikely but there remains a legal requirement to be able to demonstrate that. HG70DCY was encountered untaxed. The explanation was that the V5 was not supplied when the vehicle was bought new in 2021. It had been without tax for over a year. It was taxed at the roadside on 11 March 2023 but it is again showing as untaxed today. It is abundantly clear that this operator cannot manage effective compliance systems without professional support and this supports my finding in relation to fitness.

4.3 Overloading

At the encounter with the operator’s 3.5 tonne vehicle, HG70DCY, it was weighed and found to be overloaded by 46.29%. The driver, Anthony Onion, told me it was his fault entirely and he could have used a heavy goods vehicle. Whilst Mr Onion does have culpability, it is the operator’s job to assign loads to vehicles and to make sure that the correct vehicle is used. It clearly failed to do so. The physics are straightforward. A vehicle overloaded by 46.29% will take 46.29% longer to stop than one operating at the correct weight. Wider issues also arise. It is likely that the tyres will be outside their rated capacity and so liable to fail. Steering and suspension will be compromised. I conclude that it was driven in a dangerous condition and this operator allowed that to happen.

4.4 The role of Russell Flook and the statement of intent

I granted the licence on the basis of a statement of intent that Russell Flook would be appointed as a statutory director. That did not happen. I am now told that he was facing personal bankruptcy at the time. Mr and Mrs Flook knew that when they made the statement to me. It is accepted that Mr Flook had an important role within the business, and I find, at times, at least, that he has acted as a de facto director and a shadow director in that both his wife and the workforce took direction from him. For the record, I make no finding as to whether that was the case during the period of his bankruptcy order. I attach significant weight to the failure to honour the statement.

4.5 Failure to comply with undertakings

The licence was granted with the following undertaking: “The operator will engage the services of a qualified transport consultant for at least 2 hours every fortnight”. Mrs Flook confirmed by email dated 25 March 2021 that a consultant was in place. It now appears that the engagement ended around March 2023. I was not told of that material change. The undertaking has been breached ever since and the consequences for compliance are obvious.

4.6 Fitness and the future

I have set out above matters that go to this operator’s fitness. A statement of intent was made at a public inquiry which the operator had good cause to believe it could not satisfy. An undertaking was given to ensure compliance and it was breached. The impact of that on compliance was that vehicles failed to be inspected at anything like the correct frequency and driver management evaporated entirely. The operator has demonstrated very clearly that it cannot be trusted to comply with the requirements of a restricted operator’s licence.

I was asked to consider the option of accepting an undertaking that a qualified transport manager be employed. That undertaking already exists and clearly does not work. I make my decision in the knowledge that it may put this operator out of business. It would be entirely proportionate for that to happen. However, the non-compliance has been through omission rather than commission. There is some evidence to suggest that this could be a compliant operation with a statutory transport manager in place and if steps were taken to establish good repute.

5. DECISION

Due to an overwhelming finding that the operator is no longer fit to be the holder of a restricted goods vehicle operator’s licence, the licence is revoked. To allow for an orderly winding down, or for a new application for a standard licence, revocation will take effect from 23:59 on 4 May 2024.

6. COMMENTS TO ASSIST A NEW APPLICATION – NOT PART OF MY DECISION

Any new application for a standard licence will be challenged by the sheer scale of non-compliance found here. In particular, the following will need to be addressed:

• Mr Flook’s bankruptcy and the Crown debt. This might be allayed if Mr Flook could show evidence of a repayment plan and undertake to give regular updates against it, with supporting evidence. I find it unlikely that the company could establish good repute without that wrongdoing being addressed from the outset.

• Mr Flook’s role must be transparent. I have found him to be a shadow or de facto director. That is unacceptable. He must be appointed statutorily.

• The scale of the operation. A smaller application, perhaps for one or two vehicles initially, would be more likely to succeed.

• Compliance management will need to be established from the outset through the nomination of a credible transport manager. It will also need to be demonstrated independently. I suggest that might be done with an undertaking for a compliance audit.

Of course, any new application will fall to be determined by the relevant Traffic Commissioner or Deputy Traffic Commissioner when it is made. I make these comments only to assist.

Kevin Rooney
Traffic Commissioner

18 March 2024