Decision

Decision for A1 Scaffolding Ltd (OK2010452)

Published 18 December 2020

South Eastern and Metropolitan Traffic Area

Decision of the Deputy Traffic Commissioner

Public Inquiry heard at Ivy House, Ivy Terrace, Eastbourne on 7 December 2020

1. Background

The operator A1 Scaffolding Limited is the holder of a restricted licence authorising one vehicle granted on the 24 July 2018.The sole director of the company is Farzad Takalobighashi.

Mr Takalobighashi was the director of A Level Scaffolding Limited. That company was granted a restricted licence on the 15 May 2012 which was revoked on the 12 July 2018 following the dissolution of the company and compulsory strike off. Mr Takalobighashi failed to notify the Traffic Commissioner of the dissolution.

A variation request to increase the number of authorised vehicles to four was made in August 2019 and consequently a joint vehicle and traffic examiner investigation was commenced on the 2 December 2019.

The vehicle examiner’s report identified several failings including lack of PMI records, variation in PMI intervals, no forward planning system and inadequate driver daily walk round systems. An immediate prohibition was issued in relation to a defective indicator on vehicle YJ54BHN and documents requested by the vehicle examiner were not produced. Further issues were identified in relation to the insurance cover for this vehicle and another vehicle NX05CVU and the period both vehicles had been used by the operator.

The traffic examiner’s report identified several additional failings including lack of systems for downloading driver or vehicle unit records, no disciplinary procedures, failure by drivers to use their cards and lack of driver training.

A driver Paul Mills had been asked by the traffic examiner on the 9 December 2019 to produce his driver card and stated that he had lost it. When the traffic examiner returned on the 8 January 2020, he noticed that a driver’s digital card was in Mr Takalobighashi’s wallet and when this was examined it was shown to be the card belonging to Mr Mills. When the data from this card was analysed a range of offences were identified.

Discrepancies were identified relating to vehicles which were shown to be linked to the operator. The registered keeper for YJ54BHN was shown to be A Level Scaffolding Limited from the 15 May 2014 to the 26 January 2019 and A1 Scaffolding Limited from the 26 January 2019 until the present. This vehicle was not specified as an authorised vehicle on this operator’s licence until the 13 November 2019.

The registered keeper for vehicle NX05CVU was David Bowman from the 19 May 2017 until the present. This vehicle was specified as an authorised vehicle for A1 Scaffolding Limited from the 12 July 2019 until the 18 October 2019.

During the visit by the traffic examiner on the 8 January 2020 an insurance policy was produced which showed that cover was in place for four vehicles including YJ54BHN. The insured person was named as D Bowman T/A Bowman Scaffolding and named drivers for YJ54BHN and a vehicle NX04LJA were David Bowman and Paul Mills. No policy was produced providing cover for vehicle NX05CVU.

A search of the Automatic Number Plate Recognition (ANPR) system showed that vehicle YJ54BHN had been seen on 17 occasions between the 16 August and 16 September 2019 and NX05CVU on 54 occasions between 27 July and 13 August 2019. When asked about the use of vehicle YJ54BHN during this time Mr Takalobighashi said the use had been by a person named Kenny Cole but no further detail or evidence to support this claim was provided. When YJ54BHN was used in August 2020 it was untaxed.

Checks with Companies House showed that Mr Takalobighashi and David Bowman are joint directors of ABS (Kent) Limited.

As a result of the apparent failings and to enable clarification of the links between the individuals and companies the operator was called to public inquiry. A request was made that David Bowman attend as a witness to explain his involvement and the links between the businesses.

2. The Public Inquiry

Prior to the inquiry I was informed that neither the vehicle examiner nor the traffic examiner was able to attend as result of self-isolation linked to the Covid pandemic. The representative for the operator indicated that the evidence of both officers was accepted, and I decided to proceed with the inquiry in their absence.

Mr Takalobighashi attended the inquiry and was represented by counsel Mr McBarnet. Mr Bowman attended via video link as a witness as requested. Driver Paul Mills also attended a conjoined driver conduct hearing which I dealt with prior to the inquiry.

3. Evidence

Driver Paul Mills told me that he had worked for the operator as a scaffolder/driver initially using a vehicle which he was authorised to drive through “grandfather rights” on his normal driving licence and for two years after this under his vocational entitlement. He had not received any training in relation to driver’s hours legislation when he was employed by the operator but had kept records of his duties on his phone. He started new employment early in 2020 and was now keeping records and receiving infringement reports.

Mr Takalobighashi confirmed that he had been the director of A Level Scaffolding Limited from 2012 to 2018. That company had held an operator’s licence until revocation following liquidation of the company. He said that his ex-wife had “kept all the records” for A Level Scaffolding Limited and it had been intended that his sister would take on this role when he had separated from his wife. Due to family circumstances in 2019 this had not been possible, and this had contributed to the failings.

He and Mr Bowman said that the arrangements for ABS (Kent) Limited did not require transport of scaffolding as the work involved mainly one large project where materials had been delivered to site by others. Invoices had been produced to support this claim. Both said that vehicles operated by A1 Scaffolding Limited had not been used to carry out work for ABS (Kent) Limited. Mr Bowman said that the transport needs of his company were being met by two 3.5 tonne vehicles although he had made an application for a licence which was under consideration.

I set out the details of the ANPR records for YJ54BHN to Mr Takalobighashi. I asked him to explain these sightings and said that it seemed odd that he had been the registered keeper of the vehicle since the current operator’s licence was granted and yet the vehicle had not been authorised on the licence until the 13 November 2019. Mr Takalobighashi told me that over a period of a few months during “the summer” of 2019 the vehicle had been in the possession of a person called Kenny Coles who was going to buy the vehicle. He had given Mr Takalobighashi £500 with further payments anticipated but these were not made. Mr Coles had intended to use the vehicle for carrying cars as he was involved in “banger racing”. Mr Takalobighashi had not notified change of ownership to the DVSA. Mr Coles had abandoned the vehicle which was located and taken back by Mr Takalobighashi.

I pointed out to Mr Takalobighashi that the dates suggested by him when the vehicle was in the possession of Mr Coles did not tally with the various dates when the vehicle had been picked up on the ANPR cameras and the dates identified via the vehicle tacograph unit showing when the vehicle had been driven. I also said that the photographs from the ANPR cameras appeared to show that the vehicle was carrying scaffolding materials and not scrap cars.

I reminded Mr Takalobighashi that it was important that he told me the truth and that it was better to be honest and for me to deal with a case on that basis as opposed to him putting forward a version of events that I do not accept. At this point Mr Takalobighashi indicated that he was admitting that he had been using the vehicle during the whole period and that there had, in fact, been no attempt to sell the vehicle to Mr Coles. I was surprised by this admission and following my enquiry he confirmed that my understanding of what he was now saying was correct.

When asked about the incident when the traffic examiner found him in possession of the driver card belonging to Mr Mills he denied that he had been trying to hide it from the officer and said that he had it in order to download the information on it as requested.

Mr McBarnet asked Mr Takalobighashi to confirm aspects of the contents of his statement which had been submitted in advance of the inquiry which he did. He confirmed that evidence of PMIs inspections had also been submitted together with copies of some tachograph infringement reports. Mr Takalobighashi said that maintenance including brake testing was now being properly carried out, a forward planner was in use, daily defect sheets were being completed every day and his sister was downloading the tachograph records. He asked to be given a chance to show that he could be fully compliant and promised this would be the case now. Mr Takalobighashi’s sister who had attended the inquiry explained the role she had taken on and what she intends to do if the licence can continue.

In the light of Mr Takalobighashi’s revelation regarding vehicle YJ54BHN I asked Mr Bowman to clarify what had happened with vehicle NX05 CVU which he owned. He said that he had bought the vehicle in anticipation of getting his own licence and when this had not happened, he had used it with Mr Takalobighashi as an additional vehicle. A variation application had been made to increase the number of authorised vehicles on A1 Scaffolding Limited and this had been pending. In the event NX05CVU had developed a fault which resulted in it only been used for a few weeks and it had subsequently been scrapped.

Mr McBarnet submitted that this was a case where I could be satisfied the operator would be compliant, that revocation was disproportionate, and the operator did not deserve to be put out of business. Mistakes had been made in the past but Mr Takalobighashi, with the help of his sister can be trusted going forward.

4. Findings and Decision

There have been breaches of Sections 26 (1) (c) and (f) of the Goods Vehicles Act, 1995 in this case. When the DVLA officers visited the operator in December 2019 and January 2020 there was very little evidence of compliance in relation to maintenance and even less in relation to drivers’ hours. It is accepted that YJ54BHN was used for a time whilst untaxed and it appears NX05CVU was not included in the insurance cover. I remind myself that Mr Takalobighashi has previously held a licence as a director for a different company from 2012 so should have been fully aware of what was required in terms of compliance.

Over and above these examples of non -compliance I need to weigh in the balance the fact that Mr Takalobighashi now accepts that he concocted a story about the purported sale of his vehicle YJ54BHN. He outlined that story to the traffic examiner, repeated it in the written statement submitted by his representatives and elaborated further when giving evidence at the inquiry. It was only when I challenged him with the facts and explained the need and benefits of being honest that he admitted the truth.

Considering what he said and the admission by Mr Bowman I find that it is more likely than not that YJ54BHN and NX05CVU were used by the operator to carry goods when only one vehicle was authorised, and I also find that the goods were carried in relation to Mr Bowman’s business as well as that of the operator. Mr Bowman’s insurance policy included YJ54BHN and another of his vehicles was seen at the operating centre when the DVLA officers visited. These facts are supportive of the finding that this operator’s licence was being used across both businesses.

In deciding what regulatory action to take I need to weigh any positive features with the negatives, and I accept that the operator has made efforts to make improvements. This is the first public inquiry, some PMI sheets and driver daily checklists have been produced, training for Mr Takalobighashi is promised and a forward planner have been produced together with some infringement reports. The negative side of the recent infringement reports is that they still show a high number of offences and missing mileage.

In accordance with the guidance given by the Senior Traffic Commissioner in Statutory Document 10 I need to consider the level of seriousness in this case and I have concluded that it is in the serious to severe category. In considering whether the licence should be revoked as a consequence I have to ask myself the question set out in the case of Priority Freight Limited & Paul Williams i.e. how likely is it that this operator will operate in compliance with the operator’s licensing regime? In other words, can the operator be trusted going forward? After careful consideration I have decided that this is not the case. The initial non-compliance demonstrates a serious failure to meet the undertakings agreed when the licence was granted. The improvements made in advance of the public inquiry are limited and in the case of the drivers’ hours compliance still show significant and substantial failings. The attempt by Mr Takalobighashi to mislead the traffic examiner and the continuation of those lies into the public inquiry are major factors in my decision as is using more vehicles than the number authorised. My opinion of Mr Takalobighashi is that he will do and say what he thinks is best to suit his needs, but he is headstrong and if he thinks he can avoid detection, he will do so. His enthusiasm to sustain the promised improvements will I believe wain once the public inquiry is behind him. Whilst I accept his sister was sincere in what she said she does not hold any official position in the business and cannot be held accountable for compliance.

I have concluded that this operator deserves to be put out of business and I order revocation of the licence under Section 26 of the Goods Vehicles (Licensing of Operators) Act 1995 with effect from 00.01 hours on the 1 January 2021. In accordance with guidance, I reminded Mr McBarnet that he had the opportunity to address me on the question of disqualification, but he did not do so. This is a case where I consider an order is appropriate but am limiting the order to one year from the 1 January 2021. I believe this to be a suitable period considering the previous history and the fact that Mr Takalobighashi did admit the truth in relation to what had occurred with the two vehicles, albeit at the inquiry. I also make an order that if he were to be a director of a company that holds an operator licence during the period of the disqualification, that licence would be subject to revocation, suspension, or curtailment.

In relation to Mr Bowman, whilst he was not called to this inquiry, I did advise him that I would consider his role in the case and gave him the opportunity to address me. I conclude that he was closely connected with what took place and that he carries a share of the culpability in relation to the use of the two vehicles and the work those vehicles were undertaking.

John Baker

Deputy Traffic Commissioner

9 December 2020