Decision

Decision for Elite Access Scaffolding Ltd (OF2058922)

Published 11 January 2024

0.1 In the Eastern Traffic Area

1. Written Decision of the Deputy Traffic Commissioner

1.1 Elite Access Scaffolding Ltd (OF2058922)

2. Background

2.1 Links with H S Scaffolding Ltd

In a decision dated 3 August 2022, I revoked the restricted operator licence held by H S Scaffolding Ltd and disqualified both the company and its director Karl Yarham from holding or obtaining an operator licence for five years. There had been widespread failure to comply with the undertakings given and the vehicles had been found to be in an alarming condition. Mr Yarham was also found to have continued to operate vehicles which he had been explicitly told were unroadworthy by the maintenance provider. The five year disqualification period reflected the seriousness of the case.

The revocation took effect on 1 September 2022. On 2 September 2022 the central licensing team received an application for a restricted licence from Elite Access Scaffolding Ltd.  The sole director of this company is Jake Hull. There was nothing to link the two companies and no other issue, so the application was granted under delegated authority on 10 October 2022.

On 3 January 2023, Jake Hull was appointed a director of H S Scaffolding (he was a scaffolder working in the company and it turned out that he had been mentioned in the public inquiry as a driver who had driven without a tachograph card). On 6 March 2023, Elite Access Scaffolding applied to add an operating centre at Common Lane in Studham to its licence. This address had been one of the operating centres listed on the licence of H S Scaffolding Ltd. A check of Companies House records at that time showed that Karl Yarham held 75% of the shares in Elite Access Scaffolding Ltd, with Jake Hull holding the remaining 25% (Companies House records have since been amended to show a 50% shareholding for each).

2.2 DVSA traffic examiner report

In February 2023 DVSA traffic examiner Mark Webb commenced an investigation into Elite Access Scaffolding Ltd. He subsequently reported that:

i)     driver tachograph cards were not being downloaded;

ii)     the vehicles’ tachograph units had not been downloaded within the required 90 day period;

iii)     the registered keeper of the three vehicles on the licence was H S Scaffolding Ltd. Mr Hull had stated that the vehicles were leased from H S Scaffolding and had produced a lease agreement;

iv)     vehicle insurance documents provided were in the name of H S Scaffolding Ltd and provided cover for the carriage of that company’s “own goods”;

TE Webb concluded that the company had “minimal systems in place to monitor drivers’ hours and vehicle maintenance”.

3. Public inquiry

Concerned by this report, I called the company to a public inquiry. The call-up letter was sent on 31 October 2023, citing Section 26(1)(b), (e), (f) and (h) and Section 28 of the 1995 Act. The call-up letter specifically requested that the company provide evidence of payments to drivers and scaffolders and evidence of payment for fuel, vehicle insurance, maintenance etc.

The inquiry took place on 5 December 2023 in Cambridge. Present was company director Jake Hull.

Mr Hull stated that he had been a scaffolder for H S Scaffolding Ltd. The director of that company, Karl Yarham, had decided to give up that work and go in a different direction. The idea had been for Mr Hull to set up a company and gradually take over H S Scaffolding Ltd’s work.

I asked about the arrangement for the use of H S Scaffolding Ltd’s vehicles. Mr Hull said that no payments had actually been made for the lease of the vehicles: it was all done on an informal basis. I took him to the details of the lease agreement which stated that payments of £1,200 + VAT were to be made and explicitly stated that amounts owing under the lease must be paid without deducting any amounts which the hirer (Elite Access) claimed to be owed by the owner (H S Scaffolding). Mr Hull accepted that the terms of the lease had not been adhered to.

Mr Hull was unable to provide any evidence that Elite Access Scaffolding Ltd had paid for fuel, vehicle maintenance or the salaries of the drivers (or any other worker). He said that payments for maintenance had been in cash.

Mr Hull accepted that he had “not been doing the job I was supposed to” when it came to drivers’ hours monitoring. He put this down to “naivety and lack of experience”. He had not submitted evidence of drivers’ hours infringements in advance of the inquiry as requested, but produced at the inquiry infringement reports which had been printed out the previous day (4 December). There were also some infringement letters to drivers couched in somewhat vague terms, the nature of the offence being usually described as “drivers hours”.

I looked at the maintenance documentation, also submitted only on the day of the inquiry. I noted that vehicles were frequently recorded as having numerous defects at the preventative maintenance inspections. Many of these defects were driver detectable – that is, they should have been identified by drivers on their daily walk-round checks and rectified then, not await the next nine-weekly inspection to be picked up and addressed. For example, the PMI report for vehicle AY16 LTN dated 29 January 2023 identified 15 defects, among which were “offside w mirror glass held on by tape”, “front kerb mirror glass broken”, “n/s main mirror glass cracked”, n/s kerb mirror missing”. I asked to see driver defect reports but none was available.

My look through the maintenance documents identified further elements of concern, elements remarkably similar to those which had caused me to revoke the licence of H S Scaffolding Ltd. The PMI report for FL65 CKV dated 29 January 2023 noted that the vehicle’s tachograph calibration had expired more than 18 months previously on 17 July 2021. A further 14 defects were identified. I noted that the PMI report for vehicle AY16 LTN dated 26 November 2022 identified 22 defects and stated that the vehicle was “not roadworthy and is only to be moved at the owner’s risk”. Mr Hull stated that the defects had been repaired and, after the inquiry, produced an invoice from the maintenance provider as evidence. I noted, however, that the odometer readings on the documents showed that the vehicle had been driven 1,261 km in the meantime.

There was no evidence that the vehicles had been given any form of meaningful brake test. A few of the sheets noted that a decelerometer at 5mph had been used: this is not a meaningful test. There were no decelerometer or roller brake test print-outs.

Mr Hull said that he was very much the controlling mind behind Elite Access Scaffolding Ltd and that Karl Yarham had nothing to do with it. He had attended an OLAT course in May 2023 and realised that he had not got everything right. He would be happy to come back to the inquiry in three months’ time and show improvements. He would supply maintenance and other records in advance next time. Suspension or revocation of the licence would have a disastrous effect on the business and on its customers who had scaffolding at their premises.

4. Findings

After considering the evidence, I have made the following findings:

i)     there have been insufficient steps taken to establish clear blue water between H S Scaffolding Ltd (licence revoked and disbarred from holding one for five years) and Elite Access Scaffolding Ltd. The disqualified director Karl Yarham was a 75% shareholder of Elite Access Scaffolding Ltd at the time of the inquiry (records have since been amended to show a 50% shareholding). The three vehicles specified on the licence of Elite Access Scaffolding Ltd are all registered to H S Scaffolding Ltd. The agreement under which the vehicles are “leased” to Elite Access is cosmetic only, as no payment under it has been made. The vehicles remained insured by H S Scaffolding until TE Webb investigated in March 2023, since when the insurance has been amended to cover both companies (even though H S Scaffolding is not permitted to operate HGVs). There is no evidence that Elite Access Scaffolding Ltd has paid for the vehicles’ maintenance or that it pays the drivers. There are remarkably few transactions on the company’s bank statements, strongly suggesting that it is not the operating entity. I find that Elite Access Scaffolding Ltd is nothing more than a device to enable continued de facto operations by H S Scaffolding Ltd, in defiance of the revocation of its licence and its disqualification from holding one. I thus find that Elite Access Scaffolding Ltd is not a fit company to hold a licence (Sections 13B and 26(1)(h) of the 1995 Act refer;

ii)     The operator has failed to fulfil its undertaking to keep vehicles fit and serviceable (Section 26(1)(f) refers). Almost all PMI sheets report numerous defects and several explicitly state that the vehicle is not roadworthy and can only be moved at the owner’s risk. Despite that warning, the company has removed them and continued them in service before repair;

iii)     the operator has failed to fulfil its undertaking to ensure that drivers would report defects in writing. No driver defect reports exist;

iv)     the operator has failed to fulfil its undertaking to ensure that rules relating to drivers’ hours and tachographs are observed. TE Webb found “minimal levels” of compliance when he investigated in March 2023. Although the operator has now started to download vehicle units and driver cards, such downloads are sporadic and the director clearly has little or no understanding of what the reports are telling him.

5. Balancing exercise

I conducted a balancing exercise. On the negative side of the balance were the above findings. On the positive side is that Mr Hull has attended an OLAT course and that there are two MOT passes out of two presentations. He has also at least started to download driver cards and vehicle units, although much remains to be done to put the resulting data to effective use.

My conclusion however is that the negatives heavily outweigh the positives. Elite Access Scaffolding has clearly been used as a vehicle to enable continued operations by H S Scaffolding Ltd. It would have been perfectly possible for Elite Access to purchase (or lease) vehicles from H S Scaffolding, pay drivers and pay for the vehicles’ insurance, maintenance and fuel: but this is not what happened. It is quite clear from the evidence that Elite Access is not the operating entity.

The other heavy negative factor is the continuing very poor condition of the vehicles (just as I found at the inquiry into H S Scaffolding Ltd in August 2022) and the fact that vehicles have been used even when explicitly declared by the maintenance provider to be unroadworthy (again, the same practice as with H S Scaffolding).

6. Priority Freight and Bryan Haulage questions

I considered the Priority Freight question of how likely it is that this operator will comply in future. My conclusion is that this is highly unlikely. The whole purpose of the operation has been to deceive the traffic commissioner and to evade the effects of the revocation of the licence of H S Scaffolding and of its disqualification. Unsurprisingly, compliance with drivers’ hours and maintenance requirements has been similarly poor. I cannot trust such a company to comply.

A negative answer to the Priority Freight question tends to suggest an affirmative answer to the Bryan Haulage question of whether the company deserves to be put of business. In this case we are talking of a restricted operator, so it might be possible for the company to service its transport needs through a hire and reward operator (although I accept that this would be difficult for a scaffolding company) or with smaller (3.5 tonne) vehicles. This is in any case a company which does not appear to have much business of its own, being essentially a disguise for the continuing business of H S Scaffolding Ltd.  But if Elite Access Scaffolding Ltd does go out of business, that would be a merited outcome.

7. Decisions

7.1 Revocation of the licence

Having answered the Priority Freight and Bryan Haulage questions, and having found that the company is not fit to hold a licence, I am revoking the licence with effect from 0001 hours on 1 February 2024, pursuant to Section 26(1)(f) and (h) of the Goods Vehicles (Licensing of Operators) Act 1995 (“the 1995 Act”).

7.2 Disqualification

I have considered whether to disqualify, under Section 28 of the 1995 Act, the company and its director Jake Hull from holding or obtaining an operator licence in the future. Having performed the same balancing act as described above, I have decided to do so. In deciding upon the length of the disqualification, I have taken account of paragraph 108 of the senior traffic commissioner’s Statutory Guidance Document 10. This paragraph suggests a disqualification period of between one and three years where it is an operator’s first public inquiry but adds that

“in serious cases, where for example, there are persistent operator licence failures with inadequate response or previous public inquiry history, this may merit disqualification of between 5 to 10 years.” “Severe cases where, for example, the operator deliberately puts life at risk and/or knowingly operates unsafe vehicles or allows drivers to falsify records, may merit disqualification for an indefinite period.”

The level, duration and extent of the company’s non-compliance with drivers’ hours and maintenance requirements, and the fact that it has been a construct to frustrate  regulatory decisions relating to another licence, lead me to conclude that a disqualification period at the top end of the range suggested for a first public inquiry -  three years - is appropriate and proportionate. I am accordingly disqualifying both the director Jake Hull and the company Elite Access Scaffolding Ltd, under Section 28 of the 1995 Act, from holding or obtaining an operator licence until February 2027.

Nicholas Denton
Deputy Traffic Commissioner

3 January 2024