Decision

Decision for Another Level Scaffolding Limited (OF1130539)

Published 8 October 2020

In the Eastern Traffic Area.

Confirmation of the Traffic Commissioner’s decision.

1. Background

Another Level Scaffolding Ltd holds a Restricted Goods Vehicle Operator’s Licence authorising 10 vehicles and 2 trailers. The Director is John Darren Mann

There are two Operating Centres: in Basildon SS13 1EF and at Ashtree Farm, Chelmsford CM1 4LP. I was told in representations that the move from Hatfield Peverel Wick Farm to Ash Tree Farm was necessitated by the business outgrowing the yard space at Wick Farm. The move to Burnt Mills Industrial Estate followed issues including theft of electronic equipment, hand tools and power supplies to the office. That is the only Operating Centre now in use. There are two declared contractors showing on the licensing record: Elite Truck & Trailer Repairs and RWBS Ltd undertaking Preventative Maintenance Inspections of vehicles and trailers at 8 weekly intervals. I was told at the hearing that the latter should have been replaced with Pro Truck, a mobile fitter, at the time the operator moved Operating Centre.

There are no other compliance issues recorded against the licence.

2. Hearing

The Public Inquiry was originally listed for 8 April 2020, but that was postponed due to the pandemic. It was relisted for today, 15 July 2020, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was present in the form of the Director, Darren John Mann, accompanied by Sarah and Amelia Harman, and represented by Tim Ridyard, a solicitor, of Ashtons Legal.

2.1 Issues

The public inquiry was called for me to consider whether there were grounds for to intervene in respect of this licence and specifically by reference to the following sections of the Goods Vehicle (Licensing of Operators) Act 1995:

• 26(1)(c)(iii) – prohibitions
• 26(1)(ca) – fixed penalties
• 26(1)(f) – undertakings (drivers hours and tachographs, vehicles and trailers fit and serviceable, driver defect reporting)
• 26(1)(h) – material change with regards to fitness and finance
• 28 – disqualification of directors and operator to be considered

2.2 Summary of Evidence

Vehicle YJ54BHL was encountered by DVSA on 12 February 2018. It was found that the vehicle unit had not been downloaded since May 2017. Instances of driving without a driver card inserted were also identified.

The vehicle was also issued with a prohibition for multiple defects and the driver was given a warning for load security.

The DVSA Traffic Examiner made a follow-up visit on 16 August 2019, meeting with director John Mann and Sarah Harman. The Operator was informed of the following shortcomings:

• No downloads of driver cards or vehicles had been made since June 2019.
• No records, analysis or infringement reports were available for inspection
• No working time records were available.
• 2 vehicles missing ministry plating certificates
• 2 V5 documents had incorrect details
• 4 tachograph calibration certificates missing

As DVSA had not received a response to the above shortcomings, Mr Whitney contacted the Operator again. Mr Mann stated that a response had been sent but was unable to retrieve a copy or resend. A second appointment for the TE to visit the Operator was made for 12 November 2019. Mr. Mann did not attend. I now understand that he had a hospital appointment. Mr Whitney met instead with Sarah Harman and Amelia Harman, neither of whom had seen the initial report. Shortcomings were still present during this second visit. The response dated 27 November 2019 (a copy of which is included in the Traffic Examiner’s statement) was, again, left to Sarah Harman.

I am now told that the operator is keen to engage. I was supplied with representations on 13 July 2020 which state that the operator relied heavily on the engagement of a consultant via, International Transport Services Limited.

The DVSA Remote Enforcement Office carried out an analysis of Tachograph data. Records were requested for the period 17 January to 28 February 2020. All 5 vehicles were found to be in scope of EU tachograph rules. No infringements were recorded against Drivers Drake and Witham during the requested period. Driver Ruddick was found to have exceeded the 4.5 hour rule on 27 January 2020. The Vehicle Units (VU) showed:

• 223 instances of movement during the break/rest (but noted Mr Bennett’s comments on shunting);
• 45 instances of ‘Driving without an appropriate card’ (the report sets out 12 very significant instances).
• Those 45 instances were identified from a sample of 3 drivers and 3 vehicles.

I noted the incident involving LT18WNZ on 5 February 2020, which was attributed to Mr Mann. The response to the incident LT19CFP on 20 January 2020 was that Driver Witham forgot. There was a similarly unacceptable response regarding Y62VFK on the same date. It could not initially produce Working Time records for the 26-week reference period. It did produce timesheets for 3 drivers, but the totals of duty did not add up. In response the operator referred to reliance on the Pit-stop forms for the period from 1 January 2020 to 30 June 2020.

On the evidence I must agree with the DVSA assessment that there was little improvement from the two DVSA site visits on 16 August 2019 and 12 November 2019. I can record that, whilst the operator had not been downloading tachograph data as required, the following have now taken place:

LT19 CFO – 28/1/2020

LT18 WNY – 27/1/2020

LT19 CFP – 27/11/2019

HY62 VFK – 31/1/2020

LT18 WNZ – 6/3/2020

Tachograph calibration certificates are all up to date.

The operator’s new consultant indicates his concern with tachographs/WTD compliance. This relies on the Office Manager and Administrator but according to the consultant, they need more assistance to deal with infringement letters. He refers to what I take to be hearsay – blaming Rob Cole, and reference is made to a ‘Transport Manager’. Mr Cole was the previous consultant who installed the “Pit Stop” systems to analyse the tachographs, but without training. That service ceased in February 2020. The operator had the software, but the systems did not function. Mr Bennett indicates that they have achieved compliance now. I am unclear what that is based on, but he states that drivers are texted at 11.30 every day ‘to remind them to consider taking a break’. He refers to reduced infringements in June but only 2 drivers. I have seen excel spreadsheets produced immediately before the hearing, which confirm that.

The operator’s response to DVSA referred to consultancy services provided by International Transport Ltd in tachograph analysis, which could generate driver infringement reports, none were produced to DVSA. The Examiner was unable to find a web presence, in order to engage with the consultant. I am told by the operator that there are invoices for work in the months of December 2019 to February 2020 for ‘tachograph analysis’. The operator’s correspondence with DVSA did not reflect particular appreciation that it was responsible for compliance with the Operator Licence requirements and in particular, Mr Mann, as the sole Director. The operator must have been aware of the issues when it started using Mr Cole’s recommendation, namely Pit Stop system in January 2020. The consultant continued to supply services up to lock down. Sarah and Amelia Harman were furloughed until 20 May. “Missing mileage” reports from that period have only now been supplied. I was told that a vehicle was in occasional use during that period.

I am unclear what prevented the Director from acting and I have noted that Pit Stop support staff have now been contacted. The Operator has now populated a new PitStop working time record for the 26-week reference period to the end of June by extracting all data is has from the PitStop system to seek to address proper compliance on this front. I am unimpressed by claims that the operator was not specifically requested to supply missing mileage reports. If they are not referred to in the latest DVSA report, it only has itself to blame. I do note the drivers’ hours material now available and the explanation relating to a vehicle left running in the yard and movements for tachograph calibration purposes. It is also claimed that there has been a significant shift in the attitude of drivers. This has not apparent extended to care around the indicator on HY62VFK. The operator accepts the DVSA findings in January and February 2020 of the many instances of drivers forgetting to insert their cards. It claims this has been eradicated. I too question why it has taken over two years since the roadside encounter in April 2018 and why the information, which has subsequently been produced is not for the reporting period requested. It remains the case that there is still no effective disciplinary process in place.

The Operator relies on Regulation 3(2)(iv)(g) of the Vehicle Drivers (Certificates of Professional Competence) Regulations 2007 which exempts a driver from DCPC requirements whilst: “carrying material or equipment to be used by that person in the course of his work, provided that driving that vehicle is not his principal activity”. The Operator told DVSA that driving licences checks were carried out every 3 months, but no evidence was produced beyond copies of the driving licence cards. That is inadequate. The newly appointed consultant states that all five drivers’ licences (and drivers’ cards, front and back) had been checked. This confirms that licences were checked by looking at the card rather than proper access to DVLA records. It was Sarah Harman who confirmed that quarterly checks of the DVLA website are also carried out. The driver/scaffolders are paid at a day rate. They leave the yard for the morning shift at 6am to travel to site. The representations acknowledge non-compliance: drivers’ hours daily-drive, daily or weekly rest offences.

On the DVSA analysis, drivers were not recording their walk round checks. I can attach only limited weight to the new defect reporting system as it was only implemented from 13 July 2020. Mr Bennett states that information was easily accessible, files are properly kept, and those items produced were in date and compliant, apparently administered by Amelia Harman.

The comments of the new transport consultant, Mr Bennett, were only supplied yesterday. The comments refer to a visit to the operator. He provides an overview but, having considered the content, some of which is hearsay, the systems require an audit. I am told that drivers attend work at 05:30, use their driver cards and complete a walk-round check. Mr Bennett referred to the presence of Mr Mann, and Sarah Harman (Office manager), and Amelia Harman (Office administrator). The yard foreman, Mark Barfoot, apparently un/loads the vehicles.

Mr Bennett considered maintenance documents covering the 5 vehicles, which were supplied to OTC. He records that Roller Brake Testing occurs every 10-weeks (5 times a year). He records that any defects are actioned and were all within the 10-week schedule with tachograph calibration. He states that the wall planner is up to date. The outstanding annual test for HY62 VFK from May 2020 has apparently been rebooked for this month. Mr Bennett has apparently engaged with the mobile fitter (Pro-Truck On-Site Maintenance Ltd) who inspects vehicles at the depot. The available facilities are of some concern. I have noted that the contractor presents vehicles for rolling road brake tests at another contractor. The operator has failed to follow the DVSA Guidance: Heavy vehicle brake test: best practice. At section 2 of that document it advises on how to prepare the vehicle: This normally means at least 65% of the vehicle design axle weight. That is required, in order to achieve a meaningful test of performance before the wheels lock. The annual test pass rate is below the national average and does not suggest that the operator meets the Operator Licence undertaking. I was told that this can be attributed to a previous contractor, but the Director was unable to tell me about the current OCRS indicator. The operator has been issued with 5 prohibition notices, 1 offence prohibition notice and 2 fixed penalty notices in the last 5 years.

3. Determination

I am satisfied to the civil standard that there have been breaches of the Operator Licence requirements such that support adverse findings under section 26(1)(c)(iii) prohibition notices, (1)(ca) Fixed Penalty Notice, (1)(f) undertaking to ensure that vehicles and trailers are operated in a fit and serviceable condition, to have an effective written driver defect reporting system, and to comply with the rules on drivers’ hours and tachographs. I am most concerned as to what caused these shortcomings and in respect of the operator’s response.

There is a long standing principle drawn from appeal cases such as 2006/277 Fenlon, that I have to be able to trust the operator to comply in full:

Traffic Commissioners must be able to trust operators to comply with all the relevant laws, rules and regulations because it would be a physical and financial impossibility to police every aspect of the licensing system all day and every day. In addition operators must be able to trust other operators to observe the relevant laws, rules and regulations. If trust between operators breaks down and some operators believe that others are obtaining an unfair commercial advantage by ignoring laws, rules or regulations then standards will inevitably slip and the public will suffer.

I have noted the remedial action set out by the operator and have tried to summarise the relevant factors in the summary of evidence. The prohibition and annual test rates are not acceptable. Questions remain to be addressed about the way in which the maintenance contractor is managed. I can record that driver defect reporting documentation is on file. There has been ineffective management of drivers’ hours obligations over a sustained period; whether that is now addressed depends on effective management. Mr Bennett is apparently satisfied that the operator is staffed by people who were keen “to get things right” and provided me with the opinion that they did and with some help, the situation could be turned round very quickly. Even the written representations accept that the response has been lamentably slow.

The sole Director apparently sought to delegate duties away from 2016. It took three years to realise that the particular employee was not qualified. The visit from Mr Whitney persuaded the Director that a further member of staff was required. In representations I was told that Mr Mann ‘oversees’ the Company’s operations, manages contracts, carries out estimating work and organises labour. However, it would appear that transport was left to Sarah Harman and Amelia Harman since they started in the latter half of 2019. The director and two staff members only attended an Operator Licence Awareness training in May 2020, partly due to Covid-19.

I refer to the Tribunal’s stay decision in Highland Car Crushers Ltd - other operators, with knowledge of the case, might be tempted to look at the circumstances and say to themselves this operator appears to be getting away with it so why should we bother to incur the expenditure of time, trouble and money to run a compliant operation? It is now established law that the approach in standard licences might be applied to a restricted operation. I therefore put the initial question in 2009/225 Priority Freight: how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime? The Upper Tribunal has repeatedly explained the importance of action in that regard: promises are easily made, perhaps all the more so in response to the pressures of a Public Inquiry. What matters is whether those promises will be kept. In the present case the Appellant company was entitled to rely on that old saying that ‘actions speak louder than words’. The circumstances are different to that appeal as, due to the state of the operator at this date, my intervention has to be far more than merely symbolic.

It is suggested that operator can comply, going forward, supported by additional external assistance. I accept that the COVID restrictions may have prevented some action but only latterly. I have assessed this case as falling within a starting point of ‘Serious’. I do accept that this is the first Public Inquiry, but this operator and Director should be left in no doubt as to the seriousness attached to their inaction. Shortcomings will never be mitigated by a reference to the approach adopted by scaffolders who drive. They exist in a world where safety should be paramount. They should be well used to complying with safety requirements but where they forget they must be properly and robustly managed.

I have taken into account the additional undertakings, which were prompted by me during the hearing:

• Disciplinary procedures to be introduced with new terms to the contract for services and the written procedures to be circulated to the drivers by 25 July 2020. That will be applied to the infringement reporting from 3 August 2020.

• Driver training on Drivers’ hours compliance to be undertaken by all drivers (Mr Bennett to supply) by 23 August 2020;

• Maintenance facilities to be risk assessed by 7 August 2020, with control measures to be implemented as per the legal requirements and to ensure adequate inspections to the required standard.

Remedial repairs will be undertaken to the troublesome indicator by the same date.

I am told that, without an Operator’s Licence the business could not trade for both operational and financial reasons. If it cannot complete its work on time it may be open to penalty charges from clients. It is suggested that it could not sub-contract for anything beyond the ‘shortest time’. I am given an estimate of £50,000 per month. That should have been sufficient to prompt Mr Mann to greater cooperation with DVSA and to ensure compliance. His response is an essential element in my determination on the continued fitness of this operator. I am asked to accept that the operator is much closer to compliance now.

I have drawn back from the ultimate sanction but, falling short of revocation, a clear marker is needed to ensure future compliance. Fitness is clearly and severely tarnished by the events described. There is a real need for deterrent action of the type described in the Upper Tribunal case law. I refer to 2013/047 Dundee Plant Hire Ltd:

…as a matter of law, a suspension is very different from a revocation. It provides a glimmer of hope, and a means to return to operation with a known and established authorisation and operating centre - without the need to make a fresh application. It provides a chance for a new leaf to be turned over if the suspension can be survived. And it is, of course, not possible to disqualify an operator or a director if an operator’s licence is merely suspended…

However, I have taken careful account of the dates of activity and the need to support educational establishments in the return to normality. This licence will be suspended for two weeks commencing at 23:45 on 9.8.20. I make a direction under section 26(6) that the vehicles currently and specified in the intervening period, cannot be used on another operation during that period. There can be no repeat of the unfortunate circumstances which I have attempted to summarise above.

RT/TC/15/7/20