Decision

Decision for C Evans Scaffolding Ltd (OF2057846)

Published 18 January 2024

0.1 In the Eastern Traffic Area

1. Written Decision of the Deputy Traffic Commissioner

1.1 C Evans Scaffolding Ltd (OF2057846)

This case is called under Section 26 and 28 of the Goods Vehicles (Licensing of Operators) Act 1995.

The operator holds a restricted licence, which authorises the use of 5 vehicles. The licence came into force on 1st August 2022.  Sole Director is Christopher Evans.

Attending Public Inquiry on 9th January 2024 was Christopher Evans.

2. Background

There is no compliance history for this operator. 

A DVSA desk-based assessment was undertaken on 5th June 2023 and recorded an unsatisfactory outcome.  Shortcomings were found in the following areas:

• Inspection / maintenance records: PMIs from PRM Commercials and NRG Riverside do not record tyre pressures; unclear how brakes are assessed if a metered test is not carried out; reoccurring ABS defect on 4 consecutive PMIs; a bald tyre was recorded as ‘report to operator’ and the inspection signed off as fit for the road; vehicles over 12 years of age are apparently inspected at 6 weekly intervals but this was exceeded; Tax had expired on T3VSC but vehicle was not SORN or VOR.

• Driver defect reporting: numerous driver identifiable defects recorded at PMI including tyres, bulbs and ABS; mixed DDR systems in use; no defect reports provided only nil reports; driver defect reports recorded in under 1 minute; Roadside encounters have resulted in prohibitions being issued for driver detectable defects.

• Inspection Facilities & maintenance arrangements: no evidence of mechanics qualifications or CPD; metered RBTs are said to be undertaken at each PMI but the PMI records provided do not suggest this; MOT failures.

• Vehicle emissions: no evidence was provided to confirm how Adblue is purchased or monitored against fuel used; prohibition issued for an emissions light illuminated.

• Wheel & tyre management: no evidence was provided of a retorque system/policy; no evidence of torque wrench calibration; loose wheel nuts, under inflated tyres and a bald tyre were recorded at PMI.

• Driver documents: incomplete records/evidence of checks carried out.

• Driver training records: no evidence provided of any system to record training.

• Drivers hours / record keeping:  no explanation of monitoring/management of print rolls; driver and vehicle downloads have missed the mandatory deadlines on occasions; no evidence provided of missing mileage investigations; multiple occasions of driving without a card being used; no working time records; incorrect use of mode switch; drivers are either not recording their walk around checks or they are under 10 minutes; HY60KWD tachograph calibration expired on 15/10/2022 but not recalibrated until 5/1/23, driver card data suggests use between these periods; CN58FKT tachograph calibration expired on 3/2/23 but not recalibrated until 1/3/23, driver card data suggests use between these periods.

  • Working time directive: no evidence provided of an independent system to record and monitor working time. Incorrect retention period.

  • Mr Evans only appears to have attended a DVSA new operator seminar.  No reference has been made to attendance at any other training.

Mr Evans provided a written response to the identified shortcomings.

3. Areas for Consideration at Public Inquiry.

Section 26(1)(b) – breach of licence condition;

Section 26(1)(c)(iii) – prohibition(s);

Section 26(1)(e) – unfulfilled statements;

Section 26(1)(f) – unfulfilled undertakings;

Section 26(1)(h) – material changes;

Section 28 – disqualification in the event of revocation.

4. The Hearing

Prior to the hearing, some finance and maintenance documentation was provided. However, my clerk spent considerable time persuading this operator to send full financial details so that a proper assessment could be made. On the incomplete documentation provided I have considered the availability of finance to meet the financial requirements on this licence and ensure effective maintenance of these vehicles; xxxxxxxxxx redacted xxxxxxxxxx. I therefore conclude that even being as generous as I can, finance is short.

Mr Evans confirmed that he had received and considered the updated DVSA reports, with help from ‘Nicky’ in the office.  It was clear to me that Mr Evans is not on top of paperwork.  He told me on several occasions that “he is just a scaffolder” and that he was “learning on the job” when it came to transport.

I therefore took this operator through the further findings of TE Hughes of the DVSA, which concluded:

“A review of the records shows the operator has provided some evidence for each of the sections outlined in the request from the Office of the Traffic Commissioner.

Although the operator has demonstrated a system to record the date licence checks are carried out, no other driving licence information is recorded, and it is not clear how they are forward planned, or whether more frequent checks are carried out for drivers with penalty points.

Based on the raw tachograph data provided, there would appear to be no improvements in respect of drivers’ hours record keeping which is evidenced by the highlighted occasions of driving without an appropriate card being used. Although it has been acknowledged the operator has reviewed and annotated the ‘VU unaccounted distance’ report, this exercise was only conducted the day before the submission due date of 19 December 2023. Although the operator stated vehicles YJ08 GZD and CN58 FKT were off-road, it would have been preferable for them to still produce the raw data to enable DVSA to undertake their own analysis.

The absence of any driver card data means it has not possible to determine the accuracy of drivers’ record keeping, although as stated above, the VU data shows issues regarding walk around checks and incorrect use of the tachograph were also identified at the previous assessment.”

I also took him through the recent conclusions of VE Seadon:

“Assessing the documents provided by the operator, there were issues highlighted in the original assessment, that are still present in the latest documents provided, as listed above.

The operator has changed their maintenance provider since the original desk-based assessment was completed. The inspection records provided are of the correct format but are out of date and do not contain the latest requirements. This has not been addressed by the responsible person, the completion of inspection records was highlighted during the original assessment.

No tyre pressures, tyre depths or tyre age has been recorded as this is not available on these records. The operator has not provided any explanation how they are managing their tyres due to this issue.

When we look at the inspection records, there are occasions when defects have been recorded with no actual rectification recorded and in one instance the fit for the road was lined out. We also still have the issue of driver related defects being recorded on multiple occasions.”

The operator did not request attendance of DVSA, and I have therefore taken their reports as read. Their conclusions were concerning and the failures wide ranging. Moreover, there appears to have been little or no improvement in the records submitted prior to the Public Inquiry.

However, I should be clear that in discussion with Mr Evans he did not accept the conclusion reached by TE Hughes that driver records were only annotated on 18th December 2023.  He explained that he reviewed the records weekly, and ‘Nicky’ makes the notes. I therefore asked him why he did not scan the original records to DVSA, rather than a printout of records from September to December that had to be annotated yet again.  He couldn’t really explain why.  I found his account to be unconvincing and prefer the conclusion advanced by TE Hughes, that the documentation suggests the annotations were made on 18th December 2023 and not on a weekly basis.  This goes directly to trust; I consider Mr Evans misled me.

During his representations Mr Evans provided me with numerous invoices from Horizon Commercials, Riverside and PRM, for inspections and repairs.  He told me that over the last 3 years he has spent £56,000 on his lorries. He also provided a sample folder with annotated driver records, but not of the period relevant to the documents sent to TE Hughes.

I formed the view that Mr Evans did not appreciate the seriousness of the hearing and wanted to give him further opportunity to present his evidence. I gave him 20 minutes to make further enquiries or produce to me documentation that would support his evidence that:

a. Tyres were checked fortnightly by ‘Mark’.

b. He has a calibrated torque wrench in the yard.

c. He now has a fingerprint scanner in the yard to comply with working time directive.

d. He is booked on a training course in March (although he is not aware of the type of course as it was booked by ‘Nicky’).

e. He has sent drivers on driver training.

My clerk was shown screenshots purporting to show:

a. Invoices for tyre checks.

b. Invoice and calibration certificate for torque wrench.

c. Confirmation of course booked in March – OLAT on 21st March 2024.

d. Driver training confirmation – driver CPC for safe loading in December 2023. I note that this training was not on drivers’ hours, which might have been more appropriate.  Moreover, Mr Evans stated in evidence that they didn’t all attend the training.

These documents and Mr Evans’ evidence demonstrate to me that there have been some improvements, but they are limited in scope and, perhaps most importantly, impact.

For example, when discussing retorque, I was told that ‘Mark’ would come down a few days later and retorque any tyres he changed.  Mr Evans admitted that they do not have a policy and that he is not aware of the requirements.  He said that he left it with Mark to sort out. Mark would tend to use his own torque wrench so the one in the yard is just if needed.

In concluding the hearing Mr Evans sought to persuade me that he could be trusted going forward.

5. Decision

• I make findings under section 26(1)(b),(c)(iii),(e), (f), (h).

• The DVSA investigation showed a situation that was highly unsatisfactory and moreover, the recent analysis demonstrates that there has been little improvement.  I have serious road safety concerns and the number, breadth and severity of the conclusions reached by DVSA.

• This operator appears not to have reacted appropriately to intervention by DVSA prior to this Public Inquiry. Whilst some improvements have been made, as set out above, these are not sufficient to alleviate my concerns. I also found Mr Evans’ evidence to be unconvincing at times (see paragraph 12 above).

• Balancing these serious concerns, I have of course considered whether there are any positive features; I note that Mr Evans purported to cooperate with the DVSA. I also find that these failures result from a lack of understanding rather than a deliberate attempt to evade the system. He admitted that he was “learning on the job”; his approach was clearly very reactive rather than proactive.

• I have considered the impact of regulatory action. Mr Evans told me that if he didn’t have a licence the business would fold, and this is his sole source of income.  He told me that he employs about 10 people, they are self-employed: They all work for C Evans Scaffolding exclusively, but they are not PAYE.

• Mr Evans told me that he has 2 or 3 projects on at present; they could be up for months on end. I assume from Mr Evans’ response, that these projects would mean any lengthy period of suspension would equate to a similar outcome to revocation so did not pursue this any further. At the outset of the hearing, he indicated that he could reduce authorisation by 2 vehicles, demonstrating that he could manage with 2 less vehicles, which is relevant to the issue of curtailment.

• Mr Evans didn’t explain to me why he couldn’t use smaller vehicles.

• Considering Annex 4 of Statutory Document No.10, I consider this case falls within the serious bracket. My starting point, given the breadth and severity of matters, is revocation with consideration of disqualification. The limited positive features in the balancing exercise regrettably do not bring me down from that starting point.

• On balance, even taking account of the impact, I regret to conclude that the failings are so severe, wide ranging and numerous that this operator deserves to be put out of business. Further, financial documentation provided was not complete and the finance requirement was not met, even on a generous view. I have serious road safety concerns and it is unfair to compliant operators to allow this operation to continue. I afforded Mr Evans every opportunity to present his case before me, but I find that this operator misled me and lacks fitness to hold a licence.

• I revoke this licence from 00:01 on 10th February 2024, to allow an orderly wind down of the operation.

• I must now go on to consider whether to disqualify this operator from holding a licence in future.  This is the first Public Inquiry for this operator and Mr Evans has much to learn. However, there were shoots of positivity in the booking of an OLAT course and some improvements, albeit not sufficient.  I give credit for these by not imposing a disqualification.

• This operator should be under no illusion that if applies for a licence in future, that application will be considered by a Traffic Commissioner.  There would need to be significant, real, and evidenced change in how the operation would be run and significant upskilling on the part of those involved in the operation.

Laura Thomas
Deputy Traffic Commissioner

10th January 2024