Decision

Decision for Creo Scaffolding Ltd

Published 21 July 2021

1. DECISION OF THE TRAFFIC COMMISSIONER FOR WALES

1.1 Public Inquiry held on 17th March and 25th May 2021 at Pontypridd

1.2 Goods Vehicles (Licensing of Operators) Act 1995 (“The 1995 Act”)

2. In the matter of Creo Scaffolding Ltd OG2019887

2.1 In attendance at the public inquiry on 17th March 2021

• Gareth Williams, director

2.2 In attendance at the adjourned public inquiry on 25th May 2021

• Gareth Williams, director

• Eliot Willis, Solicitor of NA Legal, representing

3. Background

Creo Scaffolding Ltd holds a restricted vehicle operator’s licence (OG2019887) for one vehicle which was granted in May 2019. On 7 December 2020, a letter was sent to the operator advising that I proposed to revoke its licence under section 26(1) of the Goods Vehicles (Licensing of Operators) Act 1995 as I had evidence from a social media site to suggest that the company was operating three vehicles, none of which were specified on its licence. I had also been made aware that the operator had failed to attend new operator seminars during 2019, despite repeated correspondence from DVSA. The operator requested a public inquiry by email of 30 December 2020 and a call in letter dated 8th February required the sole director, Gareth Williams, to attend public inquiry at Pontypridd on 17th March 2021 to investigate these shortcomings and give the operator the opportunity to explain how it was complying with the rules and provide evidence in support of that.

4. Public Inquiry on 17th March 2021

The call in letter required the company to submit evidence of its financial resources, showing access to an average of £3,100 over the last three months in advance of 10 March 2021. It failed to do so in the correct format and Mr Williams explained that he had sent statements pertaining to Creo Build Limited (another company that he is director of) because he had been unable to get Creo Scaffolding Limited statements from the bank during the period in question. He assured me that the statements could be obtained and provided to my office within 14 days.

The call in letter also required the company to prepare and submit its evidence to allow it to set out its case at the inquiry and that evidence should include maintenance records for all vehicles for the last 6 months, the maintenance contract, forward planner and evidence of systems for managing drivers before 10 March 2021. It failed to do so.

The call in letter advised (in bold underlined text) that it was important to provide the information seven days ahead of the inquiry so that the safety of the participants could be assured during the current pandemic. It further stated “you must not bring the evidence required on the day of the hearing” and that any failure to adhere to the timescales could lead to the traffic commissioner making a finding that there had been a failure to cooperate with the inquiry and the evidence would not be taken into account.

Gareth Williams attended the inquiry. He arrived late, having apparently experienced difficulties finding the building. When asked why he had not provided the requested documentation, he informed me that he did not think it was required because he thought the focus would be on the financial information and use of vehicles that exceeded the licence authorisation. He did accept that the call in letter clearly stated that the information was required.

Gareth Williams’ evidence was that he had employed an individual as a transport manager last year, he expected that person to be responsible for updating the vehicle operator licensing system (“VOL”) and dealing with correspondence. However, that person had not carried out the role effectively and was no longer employed. When asked if he would be able to provide the maintenance and systems documentation required to show compliance with the licence obligations, Mr Williams assured me that he would be able to do so within 14 days. When asked about brake testing arrangements, Mr Williams was unable to tell me how his vehicle was tested and admitted that he was not familiar with the brake testing requirements in the DVSA’s Guide to Maintaining Road Worthiness. He was not aware that there are different methods of testing brakes. When I asked what steps he had taken to familiarise himself with the operator licensing regime and requirements he accepted that he had not attended any of the DVSA new operator seminars nor any operator licensing awareness training courses. When asked why he had not cooperated with the DVSA by failing to respond to their correspondence, he stated that he had not received it, despite it having been sent to the correspondence address listed on VOL – the same address that remained listed at the date of the hearing and that the call in letters had been sent to. Mr Williams stated that this was an out of date address and that he had delegated the task of keeping VOL updated to the person who had now left the company. He accepted that this was, in fact, his responsibility to do and that he did need to take control.

Mr Williams’ evidence about operating more vehicles than were authorised on the licence was that he had believed that the licence had been granted for three vehicles, and not one. He referred to the financial evidence section of the original application form GV79 (included in the Brief) which referred to 3 vehicles and explained that he had thought he was applying for three. He did, however, accept that both the “Operating Centre” section of that same form and the “Authorisation” section stated that the total number of vehicles was 1. When I asked how he could have thought that the company was authorised for three, when the licence clearly only gave authorisation for one vehicle, he maintained that he had never seen the licence. His evidence was that three vehicles had been used at one stage, but that the other two vehicles were no longer owned by the company. They had been sold some twenty months ago because the business did not need them and only required one vehicle to operate effectively. One vehicle is all that had been used by the business since then. He had specified vehicle YJ57FVR using VOL on 30 December 2020, the date when he requested the public inquiry, which is when he first realised that there were no vehicles specified on the licence.

I expressed concern about Mr Williams’ lack of knowledge of the operator licensing requirements and his inability to demonstrate how the company was demonstrating ongoing compliance due to the lack of any documentary evidence provided at the hearing. However, in view of the assurances given by Mr Williams, I decided to allow him an opportunity to provide that evidence and adjourned the inquiry for 14 days to allow him a final opportunity to submit financial evidence and evidence as to systems and maintenance compliance set out in the original call in letter. It was clearly explained to Mr Williams that he needed to submit that evidence for me to review and that the inquiry would be part heard and adjourned to a virtual hearing a week after that evidence had been received. Mr Williams confirmed that he would be able to send my office all the maintenance records for the past 6 months, including periodic maintenance reports, driver daily defect records, maintenance contract for the one vehicle currently being operated as well as the evidence of training or disciplinary action received by drivers. and anything else to show the company is a compliant operator. I indicated that I would expect Mr Williams to address me on what the operator had done to demonstrate that it is a compliant operator and what it would do to ensure future compliance.

5. Adjourned public inquiry on 25th May 2021

A call in letter dated 11th May 2021 required the operator to attend the adjourned hearing on 25th May 2021 at Pontypridd. That letter set out the background to the matter being part heard and what had transpired since then. Although acceptable financial evidence had been submitted, my office received only one single periodic maintenance inspection record (which was not from the designated maintenance provider on the licence record) and some driver daily defect reports from dates between July and September 2020. An email from Mr Williams dated 29th March 2021 advised that “On discussion with our scaffold manager…the vehicle in question has not been operational since middle of October 2020, there is a witness statement confirming that.” He further advised that he had booked to attend an operator licensing awareness course taking place on 6th April 2021 and was in the process of engaging a traffic management consultant.

In view of the failure to provide all the documentation requested, the part heard inquiry was listed for a face to face hearing and the call in letter required a full 15 months of original maintenance records, the original maintenance contract, forward planner, evidence of systems for managing drivers, including driver licence checks, disciplinary action, all to be submitted to my office before 18th May 2021. The operator failed to provide that evidence.

Mr Williams once again arrived late at the adjourned inquiry hearing. He was represented by Eliot Willis, solicitor, who confirmed that he had been instructed too late to provide any documentary evidence or representations in advance of the seven day deadline prior to the hearing. I heard representations from Mr Willis but Mr Williams did not himself give any further evidence at the adjourned hearing. I was told by Mr Willis (despite Mr Williams having previously advised me that records were in place and could easily be obtained by him) that all the records pertaining to the vehicle on the licence had been submitted. These consisted of one PMI report dated 13th October 2020 and some DDR reports (although not one for the 13th October 2020). I was told that the vehicle had not been used since mid October 2020, but when I asked where the Vehicle Off Road certificate was I was advised that there wasn’t one and the only evidence of VOR was the statement to that effect from the operator’s scaffolding manager. In response to my question about what other records there were for the past 15 months, I was told that there were none. All records pertaining to that vehicle had been provided. The reason given was that Mr Williams had delegated vehicle maintenance to an individual within his company and it was only on auditing that person that it was discovered that there was no paper trail and that person was dismissed. I was told that maintenance was being carried out, but there was no record of this. The operator had been using smaller vehicles to meet its transport requirements since October. This was not consistent with Mr Williams’ evidence at the earlier hearing in March, when I was told that it was operating the one vehicle specified by Mr Williams last December. I was told that the company needs a licence for its business and that using smaller vehicles is a tremendous disadvantage to the company. When I asked why the company, which is authorised to use one vehicle, had chosen not to do so, I was told that it had taken the decision not to operate because of the issues surrounding the public inquiry and out of respect for what is happening in that regard. It was accepted by the operator that it had used three vehicles, exceeding the licence authorisation, but this was inadvertent and there had been no attempt to deceive.

I was told that the operator was willing to give a number of undertakings which it was suggested demonstrated the operator’s fitness to hold a licence at the date of the hearing. These included that the operator would be willing to become a member of a trade association, would engage the services of a transport consultant, would arrange driver CPC training, and I was told that Mr Williams was now booked on to an operator licence training course in June. When asked why the operator had not done any of these things before now, having known about this inquiry since last December, Mr Willis’ response was that the penny hadn’t dropped, like a number of operators for whom transport is incidental to their business. I was asked to accept that, as at the date of the hearing, this was a changed operator.

6. Findings

In light of the evidence presented at this part heard inquiry, I make the following findings:

the operator has contravened a condition attached to its licence, namely operating vehicles not specified on the licence and exceeding its operating centre authorisation (Section 26(1)(b) of the 1995 Act refers);

the operator has failed to fulfil its undertaking to keep records for 15 months of driver defect reports, safety inspections and routine maintenance and make them available when requested to do so in advance of the public inquiry (Section 26(1)(f) of the 1995 Act refers);

by failing to respond to DVSA’s requests to attend new operator seminars, failing to provide records in advance of the public inquiry, as required, failing to ensure that the company complies with its licence obligations as to systems and record keeping, failing to use vehicles within the licence authorisation and failing to demonstrate sufficient knowledge of the requirements of the operator licensing regime, the operator has shown that it is not fit to hold an operator’s licence. I find that there has been a material change in circumstances of the licence holder, namely that the company no longer remains of the required fitness (Section 26(1)(h) of the 1995 Act refers).

7. Balancing exercise and conclusions

There is little to put on the positive side of the balance – the operator’s failure to engage with the DVSA following grant of the licence or to familiarise itself with the requirements of the operator licensing regime has meant that the level of knowledge to meet basic requirements of its operator’s licence, even at the date of the inquiry, is sadly absent. Mr Williams, as director, now accepts that he should not have delegated responsibility to an employee. Compliance was his responsibility and the level of management control was completely ineffective with no systems or procedures in place to prevent operator licence compliance failings. Over a 15 month period, there is just one maintenance report, from a different maintenance provider to the one specified on the licence. There is no evidence of any driver training or disciplinary procedures and no evidence of any changes having been made to ensure future compliance. When he appeared at the inquiry in March, Mr Williams gave assurances that he would attend training and engage with a transport consultant. However, at the adjourned part heard hearing some ten weeks later, he had still failed to do so. The “robust undertakings” offered by his solicitor are promises easily made, perhaps all the more so in response to the pressures of public inquiry, but they come too little and too late and no active steps to ensure compliance have been taken since the original call in letter was issued last December. The inevitable conclusion is that the operator is not fit to manage a regulated operation. At its most positive, the starting point for intervention places the case in the SERIOUS if not SEVERE category, by reference to Statutory Document No. 10.

This operator has shown no relevant control of its operating licence. The answer to the Priority Freight question of how likely is it that the operator will comply in the future is, in light of the findings, extremely unlikely. All the evidence demonstrates that the operator fails to run its vehicle in a compliant manner. I am told that the operator has not been operating since mid October last year, although the reason given for that (i.e these proceedings) does not stack up as the propose to revoke letter was not issued until December last year. That is also inconsistent with the oral evidence of Mr Williams at the hearing in March, when he stated that the company was operating one vehicle at the time. Clearly the company can still function without the operating licence, given that it has chosen to do so for the past seven months.

8. Decisions

In the light of the above, I have decided to revoke the licence with effect from 00:01 hours on 4th June 2021.

Following the Court of Appeal judgment in Coach Hire Surrey Ltd & Paul Jones v TC for London and the South East & the Secretary of State for Transport [2020] EWCA Civ 1706, I have given very serious consideration as to whether I should disqualify the operator from holding an operator’s licence in future. The seriousness of the failings would militate in favour of that type of direction. I have, exceptionally, not made an order for disqualification here. The operator’s solicitor indicated that it intends to apply for a new licence in the event of revocation. Following my findings above, there can be little doubt that with the current state of Mr Williams’ knowledge, the company will struggle to demonstrate its fitness.

Victoria Davies

Traffic Commissioner for Wales

2nd June 2021