Decision

Decision for ABC Scaffolding (Cumbria) Ltd

Published 15 October 2024

0.1 IN THE NORTH WEST OF ENGLAND TRAFFIC AREA

1. ABC SCAFFOLDING (CUMBRIA) LTD  OC2019765

2. CONFIRMATION OF ORAL DECISION OF THE DEPUTY TRAFFIC COMMISSIONER

2.1 In the matter of the Goods Vehicle (Licensing of Operators) Act 1995

3. Public Inquiry held at Golborne on 20 August 2024

4. Background

ABC Scaffolding (Cumbria)Ltd (“the operator”) has held a restricted goods vehicle operator’s licence OC2019765 since 13 February 2019 authorising the use of five vehicles and with that number currently in possession.

The directors of the operator are Neil Clarkson and Debra Clarkson.

Neither the Operator nor its directors had come to the attention of the Traffic Commissioner before.

On 17 January 2024 Vehicle Examiner Wilson of the DVSA carried out a maintenance investigation visit to the Operator. The Vehicle Examiner made several unsatisfactory findings.

As part of the visit, a fleet check was undertaken and one vehicle received prohibitions including an “S” marked prohibition for a series of defects including defective indicators, tyres and suspension components.

The Operator was unable to provide evidence of effective systems for managing several basic aspects of maintenance. Most concerning was the absence of any evidence of routine brake testing.  The Vehicle Examiner also found issues with the record keeping and noted that maintenance was being carried out by a mobile mechanic (not the provider recorded on the licence) at the operating centre, which lacked the facilities for effective inspections. Attention was also drawn to the very poor MoT failure rate with many of the issues attributable to safety related defects.

The operator provided a response addressing some of the issues but far from all the concerns. The findings of the DVSA report and prohibitions taken with the operator’s limited response to date, prompted the call to public inquiry.

4.1 The Call to Public Inquiry

The operator was called up to public inquiry by letter dated 18 June 2024.

The call up letter gave notice that the grounds for regulatory action in Sections 26(1)(b) (26(1)(c)(iii), 26(1)(e), 26(1)(f) and 26(1)(h) of the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”) were to be considered as well as the provisions for disqualification in Section 28 of the Act.

5. The Public Inquiry

The Public Inquiry was heard at Golborne today. The operator was represented by director Neil Clarkson. The Operator and its directors were legally represented by counsel Darren Finnegan.

5.1 Evidence

In advance of the hearing, the Operator sent evidence of its recent vehicle maintenance to the DVSA. This indicated some changes had been made but issues persisted including two further examples of stretched inspections in the last 2 months (both apparently 3 weeks overdue) and continuing poor MoT history. The Vehicle Examiner also raised concern that drivers were not recording defects.

The operator provided me with evidence ahead of the hearing that it had contracted with Logico consultants to provide it with support in relation to forward planning, driver defect reporting (including adoption an app based system) training and driving licence checks.

I found Mr Clarkson to be a candid witness today. His evidence gave the clear impression that he had overly relied on his previous maintenance provider to ensure the vehicles were properly maintained.

He explained that the business would not be available without the ability to use his own large goods vehicles, even if that was for a short period.

Mr Clarkson willingly offered the undertakings recorded above.

5.2 Findings of fact

Having considered the evidence contained within the brief, the material provided by the DVSA and the operator before the hearing and the evidence heard from Mr Clarkson today, I make the following findings of fact:

• The operator has failed to notify changes in its maintenance provider.  This is in breach of the conditions on its operating licence and satisfies the grounds for regulatory action in in Section 26(1)(b) of the Act.

• There have been prohibition notices issued to the operator within the last 5 years including a “S” mark prohibition. This satisfies the grounds for regulatory action in in Section 26(1)(c)(iii) of the Act.

• The operator has not fulfilled the promises made on applying for the licence to maintain its vehicles at 8-week intervals. This satisfies the grounds for regulatory action in in Section 26(1)(e) of the Act.

• The Operator has not honoured the undertakings that it agreed previously to keep its vehicles fit and serviceable, to keep records of driver defect reports and routine maintenance for 15 months and make them available on request. This satisfies the grounds for regulatory action in in Section 26(1)(f) of the Act.

6. Determination

Having reached the findings of fact recorded above, I have considered the balancing exercise and have considered the positive and negative features by reference to the guidance in the Senior Traffic Commissioner’s Statutory Document Number 10.

There are several negative features that I must take into account:

• It is clear that prior to the DVSA visit, there was ineffective management control and insufficient systems and procedures in place to prevent operator licence compliance failings.
• The DVSA investigation and annual tests have identified road safety critical defects and “S” marked prohibitions were issued during the investigation.
• There continues to be a very low average first time pass rate at MOT.

I balance this with the following positive features, that include those argued by Mr Finnegan in his closing submissions:

• There is evidence that appropriate systems and procedures are now being put in place to prevent operator licence failings. For example, brake testing is now evidenced at every PMI and the Vehicle Examiner was fully satisfied with the recent recording of the PMIs.
• This is the Operator’s first public inquiry.
• The Operator fully co-operated with enforcement investigation.
• The Operator has engaged the services of transport consultants to assist with compliance going forward including planning for an audit.
• Director Mr Clarkson has attended and is planning further training on how to be compliant.

Whilst I recognise there are several positives, I cannot overlook the poor picture presented by the DVSA following its visit to the Operator in January 2024 and the fact that tangible improvements to date are limited. On balance, I consider that the negative features far outweigh the positive features, and I am satisfied that this is a case that falls in the category of “moderate” to “serious” for the purposes of assessing the starting point for regulatory action.

I have considered the guidance offered by 2013/082 Arnold Transport Ltd where the Upper Tribunal considered the differing classes of operators appearing at public inquiry. I consider this operator falls into the class described as ““Some recognise the problem at once and take immediate and effective steps to put matters right.” I have regard to the Upper Tribunal’s view that, “that prompt and effective action is likely to be given greater weight than untested promises to put matters right in the future.” I consider this is a case where the operator has taken some action and offered me tangible evidence of improvement and an intention to improve that goes beyond an “untested promise”.

I have gone on to consider the Priority Freight question of whether I can trust the operator to be compliant in future. I do not doubt Mr Clarkson’s willingness and desire to be compliant but some of his evidence today has exposed some continuing gaps in his knowledge of what is required to meet his obligations as director of the licence holder. I have noted the engagement of Logico. Whilst there may have been a benefit in seeking such support sooner, it is reassuring that they are now involved. I also accept the sincerity of Mr Clarkson’s assurances that he will seek training and guidance to develop his knowledge.  I am therefore persuaded that I can have a degree of confidence that the operator in the control of Mr Clarkson can be trusted to be compliant in future.

Accordingly, I do not consider it necessary to consider revocation of the licence today. Nevertheless, I consider that significant regulatory action is required in the form of a curtailment. This is to underline the expectation of compliance, and the consequences should that not be delivered. The curtailment should serve as a tangible reminder to Mr Clarkson of the importance of retaining the operator’s licence to his business.

I determine that the appropriate and proportionate curtailment is from five vehicles to three vehicles for a period of 21 days. I defer the start of the curtailment by 3 days to allow the operator to prepare for the reduction in vehicles available for use.

One of the positive features that I have taken into account is that this is the operator’s first public inquiry. It will not be able to rely on any credit for that in future, if it finds itself before a traffic commissioner again. Mr Clarkson needs to ensure that the confidence I have in his future compliance proves to be correct. If not, then the operator’s licence will be in jeopardy and with it, the future of the business.

(As discussed during the hearing, I consider the degree of Logico’s involvement in the supporting the licence means it would be inappropriate for them to undertake the future audit and another provider should be identified for that purpose).

Gerallt Evans

Deputy Traffic Commissioner for the North West of England

20 August 2024