Decision

Decision for Crusaders Scaffolding Ltd (OF1010154)

Published 23 October 2020

In the Eastern Traffic Area.

Confirmation of the Traffic Commissioner’s decision.

1. Background

Crusaders Scaffolding Ltd holds a Restricted Goods Vehicle Operator’s Licence authorising 1 vehicle only. The Director is Gary Driver.

There is one Operating Centre at Hunts Ltd, Great North Road, Buckden, St Neots PE19 5UL. The declared maintenance contractor on the licensing record is now ACC Ltd, undertaking Preventative Maintenance Inspections of vehicles at 6-weekly intervals (contract dated 1 July 2020 is at tab 9 of the operator’s bundle but an inspection sheet dated 8 October 2018 prepared by ACC can be found at tab 12).

Crusaders Scaffolding Ltd was incorporated on 21 November 2001. There was another Director listed until his resignation on 24 November 2005. On 31 July 2014, the company was convicted of 2 health and safety offences. A letter was sent from the Office of the Traffic Commissioner on 23 December 2014 asking why the conviction had not been notified. A written response was received from Gary Driver. The Operator’s Licence was curtailed to 1 vehicle in the following February.

2. Hearing

The Public Inquiry was listed for today, 30 July 2020, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was present in the form of Mr Driver, Director, accompanied by Graham Doughty, a transport consultant.

3. Issues

The public inquiry was called for me to consider whether there were grounds 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)(a) – unauthorised operating centre
• 26(1)(c)(iii) – prohibitions (page 60)
• 26(1)(e) – statement of intent (inspection intervals, maintenance provider – Burgess & Walker, operating centre)
• 26(1)(f) – undertakings (fit and serviceable, drivers’ hours, maintenance records, driver defect reporting)
• 26(1)(h) – material change
• 28 – disqualification.

The consultant, Mr Doughty, was given advance notice of the brief but the initial findings of the Examiners were already well known to him and the operator. The operator was to provide up to date bank statements and other evidence by 23 July 2020. On 27 July I received a letter from a Mark Manning of TMC Assist Ltd dated 24 July 2020 enclosing a bundle of documents, including financial evidence, and “to reiterate that the operator will be producing additional paperwork on the date of the public inquiry”, without reference to the clear Directions already provided to the operator.

4. Summary of Evidence

DVSA Vehicle Examiner, David Birkby (page 31) and Traffic Examiner, James Fordham (page 46) commenced their investigation on 21 January 2020.

They were unable to contact the Director via the Operating Centre, so arrangements were made to interview Mr Driver at the DVSA at Sawtry on 28 January 2020. The Examiners point to a near total absence of suitable compliance systems.

Mr Birkby refers to the general absence of compliance systems, with no maintenance arrangements, driver defect reporting or forward planning in place. Mr Driver is reported to have expressed the view that, as the vehicle was on long-term hire from Adams Self Drive, the hire company was responsible for all maintenance issues. The PG13F&G identified the following:

• No relevant training or experience evident.
• Records do not comply with the requirements as summarised in the Guide to Maintaining Roadworthiness, issued in November 2018
• Little or no evidence of completed maintenance records;
• Safety Inspection frequency not managed;
• No forward planning;
• No driver defect reporting system in place;
• No evidence of maintenance contracts or declaration of the facilities to be used.

The Examiner was unable to assess the suitability. Mr Driver was advised to seek urgent advice.

The TEOR was recorded as unsatisfactory with one of the worst scores I have ever seen. Shortcomings related to management control, training and development, licence checks, journey planning, downloading of tachograph data, WTD compliance and vehicle monitoring. In addition, Mr Fordham identified the following:

• Adams Self Drive arranged for annual tests of the vehicle but there was no plan for safety inspections. • The vehicle specified on the licence had not been used for over 2 years • Mr Driver admitted to not undertaking any vehicle checks or downloads. • An additional and unauthorised site in the Southampton area had been used. See the company website: Initially only based in Cambridgeshire where our Head Office is located, we have expanded over time and now have an additional depot in Southampton, Hampshire.

As a result of the above, it is not possible to obtain an Operator Compliance Risk Score and there is no annual test history. The response from the operator was made only after a transport consultant had provided advice and indicated that downloading software was to be purchased. The operator previously believed drivers were exempt from tachograph requirements due to nature of work and vehicle size but proper records would be made in future. The operator is getting more work away from this traffic area and if this continues the operator will seek a licence in the Western Traffic Area.

Mr Driver made the following admissions: I fully accept and admitted on the day that my knowledge and understanding of the operator licence obligations and declarations was not satisfactory, nor was I able to provide any evidence, with regards to my commitment to ensure safety and compliance. I hope that my response to the assessment demonstrates that, now that I have been provided with professional advice and information from both the DVSA and a transport consultant that has made me aware of my shortcomings and failings, I can be trusted to comply with the obligations and declarations entered into when the licence was granted from now on. As indicated, the Operator sought assistance from a transport consultancy. The responses in the operator’s name accepted that immediate remedial action was required to demonstrate that the obligations of the Operator Licence are taken seriously. The consultant apparently explained the serious lack of evidence of management. He relied on that contact as evidence of training but attributes the failings to a lack of understanding. He refers to a belief that 12 weeks interval is satisfactory, without any reference to the Guide to Maintaining Roadworthiness. He admits that there was no procedure for driver walk round checks; having introduced a new system he considered himself fit to manage it. There is nothing to suggest that Driver Sean Grant had been trained or enjoyed a DCPC. He indicated an intention to rely on the hire company to carry out the preventative safety inspections.

In response to the TE, Mr Driver again relied on his contact with the consultant. He had ‘agreed to purchase a digital tachograph downloader and sign up to a tachograph analysis service’. He proposed the legal minimum to download the Vehicle Unit at 90-days despite the apparent inexperience of his driver. In his own words, he had relied on being scaffolders to be exempt from the tachograph requirements. He was ignorant of the requirement to ensure that anyone assigned to drive the specified vehicle 100 kilometres from the authorised operating centre must keep a record using the digital tachograph. There was no attempt to offer an excuse for the unlawful operation from a site outside this traffic area. There has been no application made.

Correspondence dated 11 March 2020 from the OTC put the operator on notice of how seriously I viewed these shortcomings. Mr Driver asked for this Public Inquiry. I therefore asked DVSA to carry out a Desk Based Assessment ahead of the hearing:

The initial response, REO1, appears to have been completed by the consultant, Mr Doughty and acknowledges that Mr Driver’s knowledge is ‘lacking to the point of total ignorance’. The form continues to refer to sites in St Neots, Southampton and Hove. The latter have no authority and yet the website suggests operations from there. This was raised in the initial investigation. Little evidence was produced to DVSA as to what has been done to implement the advice. The request for documents sent on 10 June 2020 did not receive a response so a chasing letter was sent after 7 days. At that stage, the operator asked for the DBA to be deferred until after the PI. The VE refers to the possibility of training and that Mr Doughty’s firm has been contracted to conduct monthly visits.

The vehicles referred to, RJ16 HBN and AE08 HJD, are within scope of the Operator’s Licence. Mr Driver is not qualified to drive vehicles of that size. The DBA has confirmed that the raw data requested was not supplied until 10 July 2020. It notes that, whilst RJ16 HBN was specified on 7 July 2020, the agreement suggests use since 1 May 2018. RJ16 HBN was driven on 12 days between 3 February and 15 March 2020. The driver card shows that it was not driven by Sean Grant. It could have been one of two other devoted drivers, Tony Cook or Tom Sellers. AE08 HJD was only removed on 7 July 2020, the day that the company card was locked, although Mr Driver suggested to the Examiner that it had not been used for years. It was accepted in evidence that this amounted to a breach of the licence requirements.

I received a bundle prepared on behalf of the operator, including a 6-page unsigned statement said to be made by Mr Driver. A signed version was only supplied on the morning of the hearing. That statement states that all the administration and paperwork was previously prepared by the former Director, Mr Lonergan, who sadly died in November 2005, 3 years after grant. However, the operator had already attended Public Inquiry on 15 February 2005 and the licence was curtailed to the current authority. Mandy Driver was responsible for the office administration at the time of the lockdown and was then furloughed. However, Mr Driver apparently accepts that he was not prepared to take over management and is still lacking that knowledge. He relies on the assistance of TMC Assist to ‘oversee’ the regulatory requirements (see the redacted contract at tab 5 of the operator bundle).

He had ‘understood’ that 6 weekly maintenance was carried out by Adams Self Drive Ltd. A new vehicle was acquired in the same way in May 2018 but never specified. His evidence suggests that forward planning relied on the contractor. He cannot state with any certainty that annual test certificate or calibration has not expired. The hire contract has just been renewed earlier this month. In advance of the Public Inquiry, I was provided with Preventative Maintenance Inspection forms completed by ACC Ltd dated: 8 October 2018, 9 September 2019, 3 July 2020 but none of them contains a test of brake performance. They are difficult to read but suggest that driver detectable defects have been left to the contractor. As late as 3 July side and rear markers and split wipers have not been rectified through the DDRS. An inspection by Motus Comms carried out on 13-17 February 2020 does refer to a rolling road brake test, as does the inspection completed by Shepperd Commercial Services on 15 May 2019, both provide adequate indication that drivers were not reporting defects.

On the morning of the Public Inquiry I was provided with another copy of the Preventative Maintenance Inspection dated 3 July 2020 and one page of an annual test certificate referring to examination on 12 September 2019 both in respect of RJ16 HBN. The customer is described as ‘Adam Self Drive’. The fitter has had to add item 1 from the Inspection Manual relating to the Registration plate, thereby drawing attention to the fact that there are missing items from the pro-forma, suggesting that the version used, is out of date.

According to Mr Driver, minor defects were being fixed by drivers. I am entitled to expect records of those actions, but the records suggest otherwise. He has only just become aware of the basic requirement to retain maintenance records and correctly describes this as unacceptable. Drivers have now been provided with a defect reporting book and apparently attended training on 15 July 2020 (tab 15). Paragraphs 15 and 16 of his statement mention nothing about how he will manage the reporting system. The explanation of the company card similarly lacks a degree of assurance. It relies on the TMC contract and I remain concerned about Mr Driver’s ability to manage the drivers. Analysis of the records for the period of 1 July to 15 July 2020 disclosed no infringements (tab 18).

5. Deliberations

I am satisfied to the civil standard that there have been breaches of the Operator Licence requirements such that support adverse findings under sections 26(1)(a), (c)(iii), (e), (f) and (h).

I find this case to fall within the ‘Severe’ category. This is not the first Public Inquiry. This was a bad case where the Examiners noted very little in terms of compliance systems. I heard and understand that Mr Driver has experienced the loss of his fellow Director and in the intervening years faced other personal battles. However, I must be concerned for the safety of the public. The Upper Tribunal suggested in 2013/007 Redsky Wholesalers Ltd that the “Priority Freight” approach might be adopted in considering fitness. I have noted Mr Birkby conclusions regarding the operator’s response: The response received from the operator would, if adhered to, address the shortcomings. However, the operator has displayed such a lack of understanding that it is difficult to see how this can be achieved without a qualified competent person.

What I find particularly troubling is the suggestion in Mr Driver’s statement that, following the prohibition notice issued on 9 June 2015, Mr Driver contacted TMC Assist to make representations on behalf of the operator (tab 19) but nothing prompted him to seek further assistance or to seek other guidance. That appears to have continued, judging by the response to the DVSA Remote Enforcement Office.

As the Tribunal remarked in 2006/277 Fenlon:

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.

As was stated in the Priority Freight decision: actions speak louder than words. The Desk Based Assessment carried out earlier this month confirms the current position, which I summarise as following:

• Drivers have been issued with a driver defect report book, but a toolbox talk was only carried out on 15th of July 2020, so there is little evidence that the system is working;
• there has only being one vehicle in possession since May 2018. It is still the subject of a hire agreement, which commits this operator to maintenance arrangements, where there has been no brake testing;
• new policies and procedures have been supplied by the consultant and the operator has gone through those documents at a meeting, given the short period of time since, there is no evidence yet to show that they are working;
• forward planning had been entirely delegated to the hire company; the consultant has implemented an Outlook based calendar with pop-up alerts, again, this has only just been implemented;
• full downloads are now scheduled every month based on regular Vehicle Unit and driver card downloads, with analysis to be carried out by the consultant and following the toolbox talk on 15th of July; analysis dates from the start of this month only, but the Optac 3 software will now calculate Working Time;
• the driver’s licence is now checked using the online facility but, again, there has been little time to demonstrate the effectiveness of this system, which has been implemented via the consultant.

I noted Mr Driver’s commitment and that TMC Assist will be contracted to attend the offices of Crusaders every month to carry out all digital downloads as well as examining all documentation. I can take account of other action such as the loading guides and have noted that Adblue purchase records date back to November 2018. TMC Assist will also introduce a full system of policies and procedures that will deal with all levels of legal responsibilities. TMC Assist will provide 19 toolbox talks which will be delivered to the staff and management at the company over the next 6 months. He has said that he will attend OLAT, as required.

As the Upper Tribunal remarked 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. Having seen and heard from Mr Driver I do not doubt his commitment, but I must be concerned as to his ability. When I pose the question from 2009/225 Priority Freight: how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime? I have very real doubts.

I have heard about the increasing work on the south coast. There has been no application to address the fact that the vehicle is regularly being kept overnight when not in use at a depot where there is no authority and in another traffic area. There are promises to correct that. I was told that any action beyond a few weeks would jeopardise the entire business but that would not reflect the seriousness of the failings nor the current position. The Upper Tribunal has repeated the importance of deterrent action in 2019/025 John Stuart Strachan t/a Strachan Haulage. Other operators must be able to trust the regulatory system and as of the date of this Public Inquiry I am satisfied that the operator is not fit. My intervention is designed to provide a limited opportunity to demonstrate whether it and its single Director can deliver the basic requirements of the Operator’s Licence. If it can, then it may re-enter the regulated industry by applying for a new Operator’s Licence. On the basis of the recent changes I have decided not to disqualify the Operator but the Operator’s Licence will be revoked at 23:45 on 22 October 2020; by that time the Operator will need to be in a position to demonstrate that it is capable of ensuring compliance, in support of a new application. The onus will be on the Operator at that stage, if it fails to comply in the intervening period then it can anticipate the response.

RT/TC/30/7/20