Decision

Decision for Brutus Scaffolding Ltd (OF2014194)

Published 17 February 2021

IN THE EASTERN TRAFFIC AREA

1. BRUTUS SCAFFOLDING LTD – OF2014194

1.1 CONFIRMATION OF THE TRAFFIC COMMISSIONER’S DECISION

2. Background

Brutus Scaffolding Ltd holds a Restricted Goods Vehicle Operator’s Licence authorising 4 vehicles only, following grant of a variation in January 2020. The Directors are Benjamin Philip Perks and Lewis Worster. Mr Worster was apparently appointed from 1 October 2020 but this change was not notified. This was accepted in the written submissions. I was told by Mr Perks that he purchased the assets of another scaffolding business. Mr Worster was a partner in that firm, and it was agreed that he should become a director and minority shareholder of this entity. The financial evidence suggests that he is contracting his services. The administration was left to accountants. I am told that Mr Perks overlooked the need to also notify the Office of the Traffic Commissioner.

There is one Operating Centre at Cases 8 & 9, Royal Ordnance Depot, Bridge Street, Wheedon NN7 4PS. There are two declared contractors showing on the licensing record: New Euro Line, and Peterbuilt Engineering, said to be undertaking Preventative Maintenance Inspections of vehicles at 12-weekly intervals, with YN59 DAO, YN58 AVC, FJ10 EEW and PJ11 TYV, specified on the licence. The written submissions referred to a contract for services with Peterbuilt Engineering.

There are no other compliance issues recorded against the licence.

3. Hearing

The Public Inquiry was relisted for today, 02 February 2021, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was present in the form of Mr Perks, who appeared in person, represented by Heath Thomas of Harrison Clark Rickerbys, solicitors.

4. Issues

The public inquiry was called for me to consider whether there were grounds for me 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)(b) – condition to notify change in management

• 26(1)(e) – statement of intent to comply with the licence requirements

• 26(1)(f) – undertakings (drivers’ hours and tachographs, vehicles 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

In respect of the application, the applicant must satisfy as to:

• 13B – that it is fit,

• 13C(2) – that it has satisfactory arrangements to comply with the laws regarding drivers’ hours,

• 13C(4) – that it has satisfactory facilities and arrangements for maintaining vehicles in a fit and roadworthy condition,

• 13D – and that such arrangements are not prejudiced by a lack of available finance.

The authenticated financial evidence received on 26 January 2021, showed sufficient funds to support maintenance under the current authority and the variation, if granted.

5. Summary of Evidence

Mr Worster was stopped on 4 July 2020 whilst driving YN58 AVC. The 18,000 kg vehicle was laden and in operation by this operator. Mr Worster confirmed that he had not kept a tachograph record (page 32).

DVSA then commenced an investigation during which Traffic Examiner, Maxine Wolfe, requested digital data and drivers’ cards for the above vehicle. As she outlines at page 34, she received an email from Mr Perks on 27 July 2020, which referred to the operations as a local domestic scaffolding erection and hire company and the restricted operator’s licence. He also stated that the operator did not carry out any work further than 100km from the yard. He appeared to be under the impression that the operator was entitled to an exemption despite the vehicle having a gross weight of 18,000 kgs.

A Traffic Examiner visit was completed by Darren Lewis on 24 September 2020 (pages 35 to 46). His assessment of the operator’s compliance was marked as unsatisfactory and can be summarised as follows:

• no specific driver training;

• driving licence checks were annual and limited to when the insurance was due;

• no induction resource for drivers;

• no tachograph records available to inspect and no system for checking records as no downloads taking place;

• no formal disciplinary procedures in place, and

• issues relating to record keeping on drivers’ hours and WTD.

The operator responded to the Traffic Examiner’s findings, with assurances to adopt the following:

• Driver specific training to be provided and included as part of induction package.

• Driving licences to be checked at a maximum period of 3 months

• Digital download of the driver card will be every 7 days

• All drivers cards will be downloaded at the end of every week and the lorry taco machine will have data downloaded at the end of every month

• Disciplinary procedure will be stated on the initial driver/staff induction package. Evidence will be kept of this via email

• A Spreadsheet now created collating working hours for salaried staff

• Disciplinary procedure now in place and discussed as part of induction for breaches of WTD. Opt out form created if desired by staff member

• Operator now signed up to OCRS, awaiting membership and confirmation number.

Submissions and evidence were lodged electronically on 19 January 2021, but not brought to my attention until a week later. The submissions referred to various documents and specifically statements from Mr Perks and Ms Stephanie James (office administrator and partner of Mr Perks), a contract for Services – RHN Consultancy (driver records analysis), Audit Report - RHN Consultancy 15.01.2021, Financial Statements, confirmation of Mr Perks’ attendance at RHA on-line training on 7 January 2021 and the DVSA New Operator Seminar Attendance on 15 May 2019, OCRS registration confirmation dated 5 October 2020, Vehicle Check Memo to Drivers (Drivers Perks, Worser, Dyer, Painton, Jenkins, Vickery), Vehicle Summary Spreadsheet, a sample of the vehicle file content for PJ11 TYV, Preventative Maintenance Inspection Reports, a sample of Driver Defect Reports for PJ11 TYV, Driver Licence checks and a Working Time Directive summary spreadsheet.

The representations accept the circumstances of the vehicle stop, as described above. They acknowledge the formal production letter sent by DVSA on 6 July 2020, refer to the operator’s response of 27 July 2020 claiming an exemption and the findings of the visit on 24 September 2020. The submissions refer to the prompt response of 25 September 2020. It is further acknowledged that the operator’s response to the request for an explanation from the Office of the Traffic Commissioner did not address all the concerns raised.

A variation application was submitted on 2 October 2020 seeking to increase authorisation from four vehicles to six vehicles at the existing site. A letter was sent to the operator from the Office of the Traffic Commissioner on 11 November 2020 requesting an explanation of the circumstances above and inviting consideration of an undertaking for compliance systems, management, maintenance documentation and vehicle inspections to be audited by a trade body or equivalent independent third party. In a reply, it was stated that a seminar had been attended. The operator also referred to reliance on a Digifobpro and Novadata software.

Mr Perks refers to attendance at a New Operator Seminar, when he apparently sought information from the speaker and was advised that his business did not require the use of tachographs, falling under the exemption for 7.5 tonne vehicles. Mr Perks’ statement covers this at paragraphs 10 to 12. The statement states that at no time did anyone inform him that tachographs were required, but there is no evidence that he carried out proper checks, either. Simply referring to Gov.uk would have confirmed the possible exemption as:

• vehicles or combinations of vehicles with a maximum permissible weight of 7.5 tonnes or less that are used for carrying work equipment for the driver where the distance is less than 100km.

The conversation was not recorded. I have seen no evidence of a risk assessment or method statement which confirms this. That is very odd given the business with which the operator is concerned. The fact that Mr Perks thought that the operator was a member of the RHA but on checking this was not the case, is indicative of the level of scrutiny employed by these Directors.

Following the Traffic Examiner’s report, Mr Perks obtained a digital Company Card, purchased a Digifobpro device, capable of downloading Vehicle Units and Digital Driver Cards, and sought a system capable of bringing the digital data together and producing reports (Novadata). During the period between obtaining the Digifobpro device and receiving notification of the Public Inquiry, Mr Ben Perks was unable to get the data into Novadata software or obtain any report from the software system.

The Operator accepts the shortcomings and what happened was wrong. I am asked to find that it took immediate steps to rectify the situation. Company and driver cards and download equipment have been obtained. Mr Perks has attended training, although not Mr Worster. I refer to the services provided through RHN Consultancy and the audit by its Mr Nugent. Mr Perks has completed an RHA Manage Your Operator Licence on-line course. I refer to the provision of additional driver training below.

In his audit, Mr Nugent describes a review completed on 8 January 2021, where he saw various documents referred to above. He confirms that the consultancy was contacted only upon notification that the operator was to be called to this Public Inquiry and that there is an ongoing Transport Consultant support relationship with the Operator. This will involve downloads of drivers’ cards on a weekly basis and vehicle units monthly to allow RHN Consultancy to analyse that data and prepare: Driver Infringement Reports, WTD report, driver lead-in reports, a daily record of driver work, infringement summaries, to identify tachograph events and faults, daily vehicle chart record, unknown driver, and missing mileage reports. Consequently, there is a limit to the weight which I can attach to this report. Mr Nugent refers to Mr Perks’ knowledge and understanding, which is for Mr Perks to explain. I note his confirmation that when he attended, he examined the Digifobpro device and was able to confirm the Digital Driver Card downloads had been carried out effectively, and the data was extracted by Mr Nugent and then considered using Trutac software. The contracts indicate that all digital data will be downloaded and forwarded to RHN Consultancy, to produce reports for the Operator. In addition, RHN will provide ongoing consultancy services. I am unsure of the value of the consultancy auditing itself at a 3-monthly frequency. The reference to the value of its own training on 7 January 2021, is a good illustration.

Mr Nugent’s report sought to mitigate the failures by analysing data after the event, but simply put, the data from YN59 DAO was not uploaded for software analysis. The vehicle lock-in report identifies dates in October 2020 where the Operator has locked FJ10 EEW, PJ11 TYV, YN58 AVC in with the Company Card. Mr Nugent has been able to extract the first activity for each vehicle available. I noted that the audit continues to refer to the exemption in respect of PJ11 TYV, but Mr Nugent noted a total of 44 duties where a Digital Driver Card should have been used, an absence of Vehicle Unit data for vehicle YN59 DAO to review but reference to this being a 7.5 tonne vehicle, which does not work beyond a 100km radius.

Even on Mr Nugent’s analysis there has been a total of 58 breaches since the DVSA intervention: 16 breaches from 16 duties by Driver, Lee Francis Painton in vehicles PJ11 TYV and YN59 DAO (7.5 tonne vehicles); 24 breaches by Mr Perks in vehicles FJ10 EEW or YN58 AVC, 23 attributed to incorrect mode and one breach of the 4.5-hour rule, due to a short break; 18 breaches recorded by Mr Worster in vehicles FJ10 EEW and vehicle YN58, apparently due to mode switch issues. The software has also recorded 194 breaches of the WTD regulations, whilst the operator is apparently maintaining a Working Time Spreadsheet.

Mr Nugent correctly identifies the confusion and inability to distinguish between in scope vehicles and where the exemption might apply. I am unclear why the operator has not already adopted the recommendation that all driving activity be recorded. There is a clear need for training relating to Drivers Hours, Digital Tachographs and WTD. That was to be delivered by the RHN Consultancy on 21 January 2021. I am also referred to a ‘Driver Induction Handbook’, although it might be better used more generally than just at induction. The handbook sets out the Disciplinary process to be taken against any employee but given the reference to the two Directors, I am less clear as to how they will now comply.

Since 2018, the annual test initial pass rate stands at 0%. This is based on two tests, with defects including lamps, exhaust systems and exhaust emissions (page48). Submissions indicate that PJ11 TYV was purchased on 6 July 2020 but collected from the vendor on 14 July 2020, with a full 12-month test certificate. The auditor refers to positive events from a roadside encounter on 4 July 2020 involving YN58 AVC, and 2 from testing: YN58AVC on 30 Oct 2020, and YN59 DAO on 11 September 2019, but the operator accepts that there was an issue with regards to the annual tests of YN59 DAO. That vehicle had been taken to the maintenance provider, New Euroline for inspection and preparation. Defects were rectified after the vehicle was re-presented. The operator failed to monitor its own record but must now accept responsibility. It has led the operator to review the maintenance arrangements and to nominate Peterbuilt.

The audit refers to the maintenance inspection frequency of 12 weeks, without reference to the content of the Guide to Maintaining Roadworthiness. After considering this at the Public Inquiry, the operator noted the reference to 6 weeks. The operator’s spreadsheet had not provided evidence of when maintenance inspections had taken place, but a wall planner has now been provided. The auditor confirmed that the maintenance contractor did not return PMI forms with the vehicle, so the operator was not checking compliance with the undertaking on the O/L. The PMI forms did not confirm a metred test of brake performance. The auditor recommended RBT at every PMI, as per the Guide to Maintaining Roadworthiness, which has been in circulation since November 2018. I expected to see evidence of a laden RBT on every vehicle. In fact, I could only locate one print out to indicate brake performance testing of any vehicle: YN59 DAO on 15 May 2019, which passed. This was conducted by the previous contractor.

The Preventative Maintenance Inspection pro-forma utilised by Peterbuilt does not appear to refer to the DVSA Inspection Manual items separately. I do not see how efficiency readings would be recorded against items 71 service brake, 72. secondary brakes, 73. parking brakes. On the inspections of YN58 AVC, I have noted:

• 8 December 2020, no brake test as the references are crossed out, for some reason. The cracked windscreen recurs from 4 December 2020 to 15 January 2021. It is not mentioned on the PMI but other driver defects are: off-side side light and near-side rear lamp, but no driver defect report.

• No brake check on 29 October 2020, which noted that the tachograph calibration had expired (again) and a long list of driver detectable defects: near-side side light, indicator, off-side rear marker, off-side sideguard, off and near-side spray suppression, body cracked, rear board catch missing, tyres cut to cords etc. Mr Perks’s driver report only referred to the rear indicator.

• 15 September 2020, no brake test – crossed out again, tachograph calibration had expired on 6 July 2020, off-side rear indicator, exhaust pipe cracked, off-side rear wing cracked etc. Driver defect reports only commence on 28 September 2020.

• 6 July 2020, no brake test – crossed out, very messy form with incorrect recording, near-side rear marker, off-side rear wing not present, wiper blades split, near-side work lamp insecure, axle 1 hub caps broken, but no driver report.

Those deficiencies are typical, see also YN59 DAO:

• 4 January 2021, no brake test as crossed out, tachograph calibration expired (again), near-side marker insecure, near-side rear spray suppression damaged, emissions warning light, off-side window regulator, off-side washer jet, off-side front tyres close to limit, but no driver defect report provided.

• 14 December 2020, no brake test as crossed out, tachograph calibration (again), oil level on minimum, plate missing (again), flat tyre, exhaust cracked (again). Last driver defect report is dated 8 December 2020 and a Nil return.

• 14 October 2020, no brake test as crossed out, tachograph calibration expired 9 August 2020, driver’s seat loose, plate missing, exhaust down pipe fractured, flat tyres. On 12 October 2020, Mr Perks reports damage to the side but fit to drive until PMI.

• 13 July 2020, no brake test as crossed out, long list of driver detectable defects including an inoperable driver’s window but found to be serviceable, near-side rear lamp, off-side rear lamp, near-side rear wing holed, near-side marker insecure, near-side wide angle mirror loose, near-side front tyre at legal limit. The report notes that the tachograph calibration was due to expire. Driver defect reports commenced on 1 October 2020.

The audit also confirms my observations of the deficiencies in the driver defect reporting system, with driver detectable items left to the PMI. Mr Nugent prepared the memo to be delivered to drivers at a toolbox talk. He also refers to the need to make improvements in the load security systems. Most loads are apparently secured by relying on the confines of the body construction, but the larger vehicles also have extended frames above the body construction. The operator has not utilised approved load security, further calling into question the efficacy of the driver inspections. Again, I am struck by the fact that the two Directors are also undertaking those duties. There appears to be no current tyre policy and it is only through Mr Nugent’s Induction handbook, that there is a recognisable re-torque policy. The auditor also refers to the need to make improvements in the load security systems. Most loads are apparently secured by relying on the confines of the body construction, but the larger vehicles also have extended frames above the body construction. Apparently, the operator has not utilised approved load security, further calling into question the efficacy of the driver inspections.

Driver Licence checks had been minimal. Mr Nugent has implemented a new checking system and spreadsheet. He has ‘directed’ the operator towards the other checks which need to be undertaken with quarterly licence checks. In her short statement dated 14 January 2021, Ms James indicates that she is responsible for checking timesheets and is responsible for vehicle maintenance inspections and tests, as well as driver licence checks, communicating with the Directors by way of a dedicated What’s App’ group. She has not been trained or equipped to undertake that role. Mr Perks very frankly accepted that there had been no scrutiny of the PMIs, which were returned even after the vehicle has returned to service. The failure to manage the contractors was obvious.

6. Determination

There was no real factual issue. Having heard the evidence, the operator took the sensible decision to withdraw its application. It will not be surprised that I made adverse decisions under 26(1)(b) regarding the failure to notify me of Mr Worster’s appointment, under section 26(1)(f) regarding the failure to meet undertakings on drivers’ hours and tachographs, vehicles to be operated in a fit and serviceable condition, with effective driver defect reporting.

Following the Upper Tribunal decision in 2013/007 Redsky Wholesalers Ltd, which confirmed the relevance of the 2009/225 Priority Freight, question, I considered: how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime?

I noted that the operator is engaged in the supply and erection of scaffold equipment directly to point of use, generally at building sites, property renovation and similar construction jobs. The representations describe the scaffolding industry as presenting recruitment issues where those ‘employed’ may have the necessary practical skills but are not proficient with regards to the completion of paperwork. I rejected that suggestion. The scaffolding industry works within a heavily regulated environment (as per Mr Perks) where the need to manage risk is widely acknowledged and reflected in risk assessments and method statements. What is widely evident is a failure to extend that approach to moving plant and other work activities including driving. That is not an excuse. The completion of a driver defects report is akin to a dynamic risk assessment. Drivers have at least now received further training from RHN Consultancy.

It was suggested that Mr Perks made enquiries with more experienced operators and authoritative persons, and attended the DVSA New Operator Seminar in May 2019 to ensure compliance. What is described as ‘an honest but mistaken belief’, offers no defence where risks are meant to be managed and the application requires a clear statement of understanding as to what the operator has signed up to. The operator’s approach has been mainly reactive and only after DVSA intervention and then the call from my Office. There was nothing to prevent Mr Perks and/or Mr Worster, from seeking guidance, as they have now done.

The submissions suggested that I concentrate on the findings of Traffic Examiner, Mr Lewis. However, as the audit indicates, the shortcomings extended beyond a misunderstanding of an exemption and indicate a failure to monitor and manage compliance across the licence requirements.

The Contingency Statutory Document allows me to take account of the impact of the pandemic which might account for a slowness to review all the compliance procedures. The operator seeks some flexibility in its’ vehicle operation through the application to increase authority. That business need was not reflected in the efforts to equip itself to comply with the existing responsibilities. The Upper Tribunal decision in 2013/082 Arnold Transport Ltd, reminds us that operator’s licensing is based on trust. Since it is impossible to police every operator and every vehicle at all times the … Traffic Commissioners in GB, must feel able to trust operators to comply with all relevant parts of the operator’s licensing regime. In addition, other operators must be able to trust their competitors to comply, otherwise they will no longer compete on a level playing field. It goes on to say that the attitude of an operator when something goes wrong can be very instructive and that prompt and effective action is likely to be given greater weight than untested promises to put matters right in the future.

I took account of the additional actions which were offered: as per the standard wording for an audit undertaking: an independent audit is to be carried out by a trade body such as the RHA, Logistics UK, CILT or other suitable independent body, which will assess the systems for compliances, and the effectiveness with which those systems are implemented, as per the pro-forma now supplied. That audit is to be supplied no later than 6 months from the date of hearing, with a response to the recommendations.

I note that Mr Nugent will continue to work with the operator and to analyse drivers’ hours and working time compliance. The success of that relationship will be reflected in the audit, so I do not require a formal undertaking to that effect. The operator and its Directors would be well advised to source a means whereby they keep up to date with operator licence requirements. They are committed to attend RHA training on Drivers Hours and Working Time. That too will be reflected in the audit. I do not require a formal undertaking for membership.

I do require the operator to supply proof of attendance at OLAT by Mr Worster and Ms James within two months of this date. Given current restrictions that may be an on-line course, but their knowledge is important to the future management of compliance.

In making my assessment I have been assisted by the starting points described in Statutory Document No. 10. This is the first Public Inquiry but I was concerned by the suggestion of delegated responsibility to the Office Manager and Mr Nugent of RHN Consultancy. However, there was an observable realisation, during the hearing, of the need to take control of compliance management. Fitness has been severely tarnished by these shortcomings. Actions had already been taken in respect of the drivers’ hours management, but there is some work to be done in respect of the maintenance. I have included a fuller record of my findings so that the shortcomings can be avoided in future, but I am satisfied that this can be categorised as Moderate to Low, due to limited negative features present by the hearing.

In 2019/025 John Stuart Strachan t/a Strachan Haulage, the Upper Tribunal indicated that: “one of the aims of the regime is deterrence, both for the appellant and for operators as a whole, who might be tempted to flout the system”. There are smaller, transit vehicles in use but my examination of the work commitments and the impact of regulatory intervention confirms that the business has developed with several large and on-call contractual arrangements. The submissions refer to the use of vehicles being ancillary to the main business activity. I refer to paragraph 8 of Mr Perks’ statement in which he refers to the persons relying on this licence including 10 self-employed scaffolders. The audit must check that contracts for services allow the operator to discipline drivers for any failure to comply with the O/L requirements.

I have attempted to settle on intervention, which ensures that the operator and others are left in no doubt that all the requirements of the operator’s licence must now be addressed or there can be no future for this operation. However, that intervention is not intended to imperil the future or indeed to carry out the work towards compliance, reflected in the undertakings to which I have referred. The licence will be curtailed by two vehicles for a period of four days commencing at 23:45 on 25 February 2021. Vehicles YN58 AVC and YN59 DAO are not to be used, on any operation during that period, pursuant to section 26. The discs will be held by Messrs Harrison Clark Rickerbys, given the length of period and the impact of current restrictions on OTC.

Richard Turfitt

Traffic Commissioner

2 February 2021