Decision

Decision for H S Scaffolding Ltd (OF1104325)

Published 9 February 2023

0.1 In the Eastern Traffic Area

1. Written Decision of the Deputy Traffic Commissioner

1.1 H S Scaffolding Ltd (OF1104325)

2. Background

H S Scaffolding Ltd holds a restricted goods vehicle operator licence, granted in 2011, for three vehicles. There are three vehicles in possession. The director of the company is Karl Yarham.

3. Previous history

The company attended a public inquiry in November 2016 after a DVSA vehicle examiner had reported poor maintenance documentation, an ineffective driver defect reporting system, prohibitions and inadequate brake testing. The traffic commissioner recorded the licence as tarnished and issued a warning; he sought and accepted undertakings to the effect that Karl Yarham would attend an operator licence management course, that the operator would carry out brake testing in line with the Guide to Maintaining Roadworthiness (ie at least four laden roller brake tests a year including the one at MOT) and that drivers would complete a driver CPC training module relating to walk-round checks.

Mr Yarham duly attended an operator licence management training course. However, it subsequently transpired that the drivers had attended CPC training modules on loading and vehicle and personal safety, not on driver walk-round checks. An explanation was requested by letter of 4 August 2017 but no reply appears to have been received from the operator and the matter does not seem to have been pursued.

4. DVSA report

On 9 August 2021 DVSA issued an S-marked prohibition (denoting a significant failure in the maintenance system) at the roadside to the company’s vehicle AY16 LTN. An obligatory headlight was insecure, likely to fall and secured with cables. The defect was a long standing one and, although identified by several previous preventative maintenance inspections, including that dated 7 August 2021 (ie only two days before the stop), it had not been rectified. Neither had any of the other numerous defects which the PMI sheet had listed been addressed when the vehicle was stopped by DVSA on 9 August.

Responding to the S-marked prohibition by email dated 17 August 2021, director Karl Yarham said that he had been “massively let down” by his (then) fellow director Chris Yarham who had now been removed as director. From now on, “the responsibility for maintaining trucks will be my [Karl Yarham’s] department. I have put a new procedure in place so that I receive all the inspection reports. I will make additional time moving forward to manage and analyse reports myself.” Karl Yarham added that he would also “carry out spot checks and ensure staff are not cutting corners on daily walk-round checks”.

DVSA vehicle examiner David Winn followed up the S-marked prohibition with a maintenance investigation visit to the operator on 20 September 2021. His report marked the operator unsatisfactory for the following reasons:

i) PMI records for vehicle AY16 LTN showed that the operator had been advised of faulty headlights from 20 March 2021 through 7 August 2021. The defects should have been repaired at the earliest opportunity. The operator had taken no action to effect this.

ii) vehicles were not being signed off as roadworthy on the PMI sheets (possibly because they were not roadworthy).

iii) there were no records of any roller brake tests, despite the undertaking given in 2016. Indeed, there were no records of brake tests of any kind.

iv) drivers were clearly not carrying out effective walk-round checks. Even though PMI sheets were listing numerous defects, including the headlight defects reported above, all driver defect checks reported “nil defect”, including the driver defect report for AY16 LTN on the morning of the prohibition (9 August 2021).

Karl Yarham’s response to VE Winn’s report was received by DVSA on 6 October 2021. The main points of his response were:

a) a new full-time member of staff Glen Childs had been brought in to look after the HGVs and ensure drivers were carrying out proper walk-round checks;

b) the [then] maintenance contractor Glen Transport would be carrying out headlight aim and brake tests at each 9-week inspection;

c) Karl Yarham and Glen Childs were booked on a two day CPC refresher course later in October;

d) toolbox talks would be given to drivers.

Mr Yarham finished with assurances that “I am going to be more involved…and will carry out spot checks to ensure we are compliant and operating to a safe standard. I will make time to monitor the above on a frequent basis….We see this as a chance to get things right and the implemented changes will ensure we are not in the position again”.

5. Public inquiry

Concerned by this report, the traffic commissioner called the company to a public inquiry. The call-up letter was sent on 24 June 2022, citing Section 26(1)(c)(iii), (ca), (e), (f) and (h) and Section 28 of the 1995 Act.

The inquiry took place on 29 July 2022 in Cambridge. Present were company director Karl Yarham and manager Glen Childs. In advance of the inquiry the company had submitted finances, which were satisfactory, and maintenance records.

In perusing the maintenance records before the inquiry, I noted that:

i) the most recent preventative maintenance inspection record for vehicle FE13 ZDU, dated 20 May 2022 listed 64 defects. 22 of these were marked “serviceable/monitor”; 18 were recorded as having been rectified, 24 were “advised” to the operator, with the comment that “items listed for ‘advise’ require rectifying for MOT”. At least 34 of the defects were driver detectable: ie defects which should have been identified by drivers on their walk-round checks and rectified straight away, rather than await the next 9-weekly inspection. Unsurprisingly, the vehicle was signed off as “not roadworthy and is only to be moved at the owner’s risk.” It was clear however that the operator had continued to operate it. There is no evidence on the vehicle file that the defects were attended to, although I noted that the vehicle had passed its MOT on 14 June 2022, after an initial failure on 7 June;

ii) the most recent preventative safety inspection record for vehicle FL65 CKV, dated 4 June 2022, listed 63 defects, including insecure mirrors and lights, loose and exposed wiring, drag link ball joints worn to the maximum, and various warning lights on the dashboard (including the brake warning light). 39 of the defects were not rectified, the action recorded was “advise”, with the comment that the advised defects should be rectified as soon as possible. As with FE13 ZDU, FL65 CKV was declared by the supervisor to be “not roadworthy” and “only to be moved at the owner’s risk”. The operator had again continued to operate it;

iii) the previous safety inspection record for FL65 CKV, dated 18 April 2022, had recorded 59 defects, the vast majority of which were still present at the 4 June inspection. The supervisor commented that “various defects require immediate attention” and signed the vehicle off as “not roadworthy” and “only to be moved at the owner’s risk”. The vehicle had travelled 3223km between the two inspections on 18 April and 4 June 2022, in a clearly unroadworthy condition. I noted that the driver defect book recorded “nil defects” for the vehicle on 14 April 2022, the most recent driver check before the PMI on 18 April. When the vehicle returned to service on 19 April with 40 defects unrectified, rendering the vehicle unroadworthy, the driver J Hull again recorded “nil defects”. Drivers continued to record “nil defects” (apart from low AdBlue and coolant levels) until the last sheet of the report book was completed on 25 May 2022 (the subsequent defect book was not made available);

iv) some maintenance records were missing. For vehicle FL65 CKV the preventative maintenance inspection records provided by the operator for the last 12 months were dated 4 June 2022, 18 April 2022, and 4 September 2021. There were invoices suggesting that inspections had taken place on 27 January 2022 (a pre-MOT inspection) and 12 November 2021, but the actual inspection sheets were unavailable. The pre-MOT invoice showed that numerous defects had had to be rectified before presenting the vehicle for MOT (when it still failed). I noted also that the gap between 27 January and 18 April 2022 was almost 12 weeks, well above the stated 9 week interval;

v) For vehicle FE13 ZDU I noted a preventative maintenance inspection report dated 20 May 2022. The two previous reports were dated 21 January 2022 and 19 November 2021, both in a format which omitted IM numbers. The 19 November 2021 inspection was the first carried out since 9 July 2021. There was an invoice for an inspection carried out on 25 March 2022, but no associated report. There was nothing at all to suggest that the vehicle had had any kind of inspection between 9 July 2021 and 19 November 2021.

I asked Karl Yarham whether he was aware of the seriousness of knowingly operating unroadworthy vehicles. He said that he had given Glen Childs the task of dealing with the issues raised by VE Winn’s investigation. Clearly he had not done this. I reminded Mr Yarham that he had given assurances, both in August and in October 2021 that he was going to be more involved himself and that he would ensure that things were done correctly in future. Had he done this? Mr Yarham accepted that he had not: he had no explanation for his failure to follow through on his promises to DVSA.

I asked Mr Yarham what his explanation was for taking an obviously unroadworthy vehicle from the maintainer’s premises and continuing to operate it without getting any of the defects rectified. Mr Yarham could not provide an explanation.

Asked about how he checked driver entitlement, Mr Yarham said that drivers’ licences were checked at the start of employment and were looked at again annually. Only the plastic card was checked: he had not realised that checks should be made online with DVLA.

Mr Yarham accepted that he had not brought “the drivers’ hours stuff” to the inquiry, although the call-up letter had explicitly requested drivers’ hours and tachograph records. I was therefore unable to examine compliance with rules relating to drivers’ hours and tachographs.

In his closing remarks, Mr Yarham said that he would have to lay off 15-20 people if the licence were revoked. He asked for a six month period of grace in which to show that he could operate a compliant operation. He knew that he had not done in the past what he said he would do. But he realised now that things were serious and was determined to get it right this time.

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

i) the operator has failed to fulfil its promise, given on application, that vehicles would be given safety inspections every 9 weeks (see paragraphs 11 iv) and v) above) (Section 26(1)(e) of the 1995 Act refers);

ii) the operator’s vehicle incurred an S-marked prohibition on 9 August 2021 (Section 26(1)(c)(iii) refers). There have been no other roadside encounters.

iii) the operator has failed to fulfil its undertaking, given at the 2016 public inquiry, that vehicles would be given brake tests in line with the Guide to Maintaining Roadworthiness (ie at least four laden roller brake tests a year). The vehicles had had no kind of brake tests when VE Winn looked at the records in September 2021; since his report the vehicles have occasionally had a decelerometer test, but no roller brake tests have ever been carried out apart from the one at MOT. Section 26(1)(f) refers.

iv) the operator has failed to fulfil its undertaking to keep maintenance records for 15 months. As described in paragraphs 11 iv) and v) above, several records from the last 12 months are missing;

v) the operator has failed to fulfil its undertaking to keep vehicles fit and serviceable. The preventative maintenance inspection sheets described in paragraphs 11 i) to iii) above clearly record numerous and serious defects and explicitly declare the vehicle to be unroadworthy.

vi) the operator has knowingly and deliberately operated unroadworthy vehicles, breaking its undertaking to ensure the lawful operation of vehicles. Despite the fact that the maintenance provider had declared a vehicle unroadworthy on three recent occasions (see paragraphs 11 i) to iii) above), the operator nevertheless chose to continue to operate it without the defects being rectified;

vii) the operator has failed to fulfil its undertaking to ensure that drivers would report defects in writing. Drivers have been systematically failing to carry out effective walk-round checks and to record obvious defects. The vehicles are clearly in an appalling condition yet the drivers are blithely recording “nil defects” with the operator doing nothing to address this (despite Karl Yarham’s explicit promises that he would);

viii) because no evidence of drivers’ hours oversight has been provided, I am unable to conclude that the company is fulfilling its undertaking to ensure that rules relating to drivers’ hours and tachographs will be respected.

I conducted a balancing exercise. On the negative side of the balance were the above findings. The only thing that I could find to put on the positive side was the operator’s MOT pass rate, which is good at 12 passes out of 13 presentations. This shows that the company is capable of putting its vehicles into a roadworthy condition when it needs to.

My conclusion however is that the negatives heavily outweigh the positives. Because of the seriousness of the defects, the clear evidence that vehicles have been knowingly operated in an unroadworthy condition, and Mr Yarham’s complete failure to make good on the promises he gave DVSA in both August and October 2021 (see paragraphs 5, 7 and 8 above), I further find that the company is not fit to hold an operator’s licence (Section 26(1)(h) refers).

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. I note that the company was at a public inquiry in 2016 for much the same issues of unsatisfactory maintenance and ineffective driver defect reporting that DVSA again found in 2021 and which I have seen continue to persist today. Despite his vehement assurances in his letters of 17 August and 6 October 2021 that from now on he would personally become much more involved and would ensure compliance, in practice Karl Yarham did absolutely nothing to follow through on these assurances. Worse, he knowingly took vehicles from the maintainers in an unroadworthy condition and continued to operate them. I thus have zero confidence in Mr Yarham’s present assurances or in his ability to run a compliant operation in the future.

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. But of the company does go out of business, that would be a merited outcome. Its failure to heed the warnings of the 2016 public inquiry and the DVSA investigation in 2021 and its deliberate use of unroadworthy vehicles has jeopardised road safety and has constituted grossly unfair competition against those operators who do comply. The company has had every chance to get its house in order, but if anything has become worse over the last 12 months rather than better.

6. Decisions

6.1 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 September 2022, pursuant to Section 26(1)(c)(iii), (e), (f) and (h) of the Goods Vehicles (Licensing of Operators) Act 1995 (“the 1995 Act”).

6.2 Only roadworthy vehicles may operate until revocation

I remain very concerned about the condition of the company’s vehicles and am reluctant to see them operate even for the rest of the licence’s short life without evidence of their roadworthiness. Therefore I am directing that the company may only – until the revocation date - operate vehicles which have been signed off as roadworthy by its contracted maintenance provider BR Commercials. The registration numbers of such vehicles, together with the evidence of their roadworthiness, must be sent to the traffic commissioner’s office in Cambridge by close of business on 10 August 2022.

6.3 Disqualification

I have considered whether to disqualify, under Section 28 of the 1995 Act, the company and its director Karl Yarham 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 105 of the senior traffic commissioner’s Statutory Guidance Document 10. This paragraph states 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.”

This case very definitely passes the “serious case” test of “persistent failures with inadequate response” and “previous public inquiry history”. The case can also be categorised as “severe” in that the operator has knowingly operated unsafe vehicles.

Taking the senior traffic commissioner’s starting points, I conclude that a five year disqualification period is the absolute minimum appropriate to the present circumstances. I am therefore disqualifying both the company and Karl Yarham, under Section 28 of the 1995 Act, from holding or obtaining an operator licence until September 2027. If ever Mr Yarham wishes to re-enter the industry after the disqualification period has ended he will have to demonstrate a complete change of attitude vis a vis the importance of safety and compliance and produce evidence of appropriate training and learning.

I am unable to disqualify Glen Childs as he is not a director of the company. But I warn him that any application involving him over the next five years is likely to face extreme difficulty, as he has shown himself to be just as incompetent and dismissive of road safety as Mr Yarham.

Nicholas Denton

Deputy Traffic Commissioner

3 August 2022