Decision

Decision for Jet Scaffolding Ltd (OF1093785)

Published 18 December 2020

In the Eastern Traffic Area

Confirmation of the Traffic Commissioner’s Decision

1. Background

Jet Scaffolding Ltd holds a Restricted Goods Vehicle Operator’s Licence authorising 4 vehicles only. The Directors are said to be Jetmir Cufa and Argita Cufa but the Companies House record at page 33a suggests otherwise. This was checked and Mrs Cufa is still not a Director and so must be removed from the Operator Licence record.

There is one Operating Centre: Yard 13, Colne Way, Watford WD25 9WZ. There is one declared contractor showing on the licensing record: Commercial Motors Ltd, undertaking Preventative Maintenance Inspections of vehicles at 12 weekly intervals. The specified vehicles are MX11 ADO, EX68 NKZ, and EX68 NHY.

A variation application was received on 14 July 2014 but reports of an S marked prohibition, Fixed Penalty Notices and incorrect use of mode switch, with insufficient weekly rest led to further scrutiny. It was noted that the annual test pass rate was only 50% (now 83% at page 99). The variation was only granted after the operator took steps to ensure future compliance. The Director was required to attend a new operator seminar. The operator was warned by the enforcement agency that any further offence could well result in a public inquiry or prosecution.

This licence was eventually the subject of consideration by the Deputy Traffic Commissioner (DTC) at a Preliminary Hearing on 30 January 2020. A letter of 25 October 2019 (page 5) put the operator on notice that a Public Inquiry may be in contemplation. There were difficulties in securing a date when the operator might attend that hearing. When it did occur, the DTC was sufficiently concerned as to direct that the alleged shortcomings should be considered at a Public Inquiry. The DTC also advised the operator that it needed to check its compliance, with particular emphasis on drivers’ hours, to include vehicle unit data and working time records.

2. Hearing

There have been various attempts to list this matter for Public Inquiry. It was originally listed for 23 July 2020, but Mr Cufa supplied evidence that he was out of the jurisdiction in Albania. It was relisted to 2 September 2020, but he was then subject to quarantine restrictions. He felt unable to join a virtual hearing by MS Teams but had used other equivalent software. It was finally listed for today, 28 September 2020, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was present in the form of Jetmir Cufa, Director, accompanied by Wayne Wealleans, a consultant. A further transport consultant, Neil Davies, corresponded with the OTC on 11 September 2020 and sought permission to appear as a representative.

3. Issues

The public inquiry was called for me to consider whether there were grounds for 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)(c)(iii) – prohibitions
• 26(1)(ca) – fixed penalties
• 26(1)(f) – undertakings (drivers’ hours and tachographs, driver defect reporting, maintenance record)
• 26(1)(h) – material change with regards to fitness and finance.
• 28 – disqualification of director and operator.

Financial evidence was submitted in advance.

4. Summary of Evidence

Vehicle MX11ADO was stopped on 27 March 2019 at a check site at Junction 9 of the M25. The driver indicated he was working for Jet Scaffolding Ltd and the vehicle was being operated by the company. This is described in the statement of Traffic Examiner, Sadie Clarke, at page 34. Driver Rustemi confirmed that he worked for the company. Ms Clarke describes how five persons were travelling in the vehicle with only four fixed seats and four seatbelts. The fifth person was sat on the central console and did not have a seatbelt. Three photographs are included at pages 37 – 38. The Driver indicated that this was on the instructions of the operator.

Ms Clarke analysed the available tachograph data and found that the unit had exceeded its permitted downloading period by 209 days. It was also found that the vehicle had been driven without a card for two 60-minute periods on 4 and 5 March 2019, although this might be attributed at least in part to the annual test on 5 March 2019. It was confirmed that Mr Rustemi drove a different vehicle that day.

Mr Lowe’s report indicated unsatisfactory compliance. The subsequent correspondence indicates that the content is not at issue. The findings have been summarised in the brief as follows:

• Driver training: Initial driver training does not appear to take place, but ongoing training under the Fleet Operator Recognition Scheme (FORS) is provided. The company pays for driver CPC courses and gives time off for these to be completed.
• Downloading of tachograph information: Vehicle Units are not downloaded. The Director was unaware that the maximum download period is 90 days.
• Recording of driver hours: Drivers have opted out of the WTD; the TE explained that this was not allowed. Days and weeks off are not recorded as 8/48 hours. Infringement records were produced but the same faults have been recorded for the last year, indicating that remedial action has been ineffective.
• Vehicle Monitoring Systems: The Operator is not signed up to OCRS. The Operator attended a new operator seminar around 4 years ago.
• Examiner Feedback: The TE noted that tachograph analysis showed that all driver hours infringements were due to mode switch use or cards being left in overnight and incorrectly recording rest as work.

The operator’s response to Ms Clarke can be found at page 53. On the basis of the commitments from Mr Cufa, I was entitled to see:

• trained drivers and in particular to ensure safe loading and drivers’ hours compliance
• downloading of vehicles unit from 14 June 2019 onwards to ensure that all vehicles are locked with the operator and that there can be infringement reporting based on fortnightly downloads of driver cards and 90-day vehicle unit downloads
• Working Time Directive compliance and vehicle monitoring.

I noted evidence of the disciplinary procedure, a driver assessment form and certificates for drivers Fediuc, Rustemi and Gjeci for ‘Safe Urban Driving’ and Koci and Cufa for ‘Driver’s Hours & Digital Tachograph’ courses.

I compare and contrast the assurances with the DTC’s review of progress at the Preliminary Hearing. The DTC was provided with a copy of submissions prepared by a consultant, Wayne Welleans of Total Fleet Management. That has been included at pages 83 – 94 of my bundle, together with additional pages of attachments. That contains a statement from Mr Cufa.

He indicates that the operator then owned four goods vehicles at 18 tonnes, having realised that 7.5 tonnes was not sufficient for the purposes of this operator. He outlines his experience as a scaffolder and as a member of the Contractors Health and Safety Assessment Scheme (CHAS) and that the operator holds FORS bronze accreditation. He refers to 14 employees (11 at the hearing), including an office manager, administrator, contracts manager, and 3 to 4 drivers. 50 to 60% of the employees are described as Albanian but he sought to assure the Deputy Traffic Commissioner that there were no language issues due to his ability and that of the administrator to converse in fluent Albanian.

The findings of Traffic Examiner Clarke and Mr Lowe are not at issue. In his words the operator fell short of the standards and acknowledged that ignorance is no excuse. He accepts that there were too many passengers in the vehicle on 27th of March 2019. He disputes that he instructed Mr Rustemi. The certificates for driver training indicate that Mr Rustemi continues to be employed by this operator. He attributes this admission to Mr Rustemi’s grasp of English. He attributes the periods of driving without a card to the employees of the maintenance contractor and has produced evidence as to when the vehicle was with the contractor.

He indicated that since Mr Lowe’s report of 14th of June 2019 no new drivers had been recruited but he has implemented a driver assessment form to be used at induction. He had also given each of the three drivers then present an assessment. He claims to have been downloading the driver cards but was unaware that there was also a requirement to download the digital tachograph (VU) itself. He committed to download all digital tachographs by the 14th of June 2019 and he experienced some “trouble” but all digital tachographs were downloaded by 1 July 2019. Since then all have been downloaded within the 90-day limit although he now appreciates this is the maximum. It would be better to download at monthly intervals. In evidence he told me that this now occurs at fortnightly intervals.

He refers to the purchase of a Tacosys digivu, which is more portable than the Optac system. Mr Lewis’ advice on recording elements such as holidays, training etc was delegated to the administrator, which resulted in difficulties with implementation. This finally led Mr Cufa to realise that he required training, so he and the administrator attended a Driver CPC course on 8 June 2019. He assured the Deputy Traffic Commissioner that drivers rarely reach any of the driving limits, but he acknowledged the issues with the Working Time Directive. He also acknowledged the difficulty in ensuring that drivers use the correct mode switch when taking breaks. He sought to assure the DTC that there is now a proper analysis in place and the infringements were being addressed. At that stage he realised that he needs to lead by example in his own driving. Further training for the drivers was booked for the 1 of February 2020. In an email of 24 June 2020, I was informed that Mr Cufa and his administrator attended a 2-day Transport Manager CPC refresher course on 6/7 February 2020.

He appears to acknowledge that he had failed to monitor the standard of maintenance. From my analysis of the copy preventive maintenance inspection forms included in the previous representations and dating between February and November 2019 , I was concerned to note that with the exception of an inspection of EX68 NKZ on 8 August 2019, not a single brake performance test appeared to meet the required performance levels. I accept that the brake test print printouts were not included but on my understanding of the forms it would suggest that the vehicle has been presented in an under-laden condition. I also noticed an apparent increase in the number of driver detectable defects.

More up to date maintenance records were supplied in advance of the actual hearing. They appeared to be in an unmarked condition. I refer to the records for EX68 NKZ, which was inspected on:

• 19 August 2020 (13 weeks and 1 day since last inspection, due to Covid-19) when driver detectable defects were identified: near-side mirror, nail in off-side rear tyre sidewall but no defects identified on the report for the previous day or on the date of inspection. The nail in the tyre was reported but there is no record of rectification. I was eventually shown an invoice dated 20 August 2020 from DTM Tyres. The Brake test: over the 65% guide with passes relying on forward wheel allowance.
• 19 May 2020 – Brake test: over the 65% guide with passes relying on forward wheel allowance.
• 9 March 2020 – Brake test on 30 March 2020 over the 65% guide with passes. Interior light broken, previous driver report is dated 6 March 2020 with no defect reported.

EX68 NHY, inspected on:

• 11 August 2020 – Brake test: over the 65% guide with passes relying on forward wheel allowance.
• 26 May 2020 – Brake test: under-laden at 58 %, with 45% on the service brake performance, relying on a forward wheel allowance.
• 2 March 2020 – Brake test on 30 March 2020, over the 65% guide with passes.

I noted the electronic ‘planner’ at tab 4 of the operator’s bundle. That bundle also contained training records (tab 5): Jetmir Cufa attended a 2-day CPC refresher course with Aldas Koci, delivered by ‘Fleet Source’ on 6 and 7 February 2020. Drivers Rustemi and Gjeci attended ‘Driver’s Essentials and Highway Code’ module on 1 February 2020. Those drivers and Jetmir Cufa have signed to confirm receipt on 4 February 2020 of the ‘Drivers’ Aide Memoir’ prepared by Total Fleet Management. However, the driver infringement print out suggests a number of other ‘casual’ drivers: Agalliu, Matei, Nagy, and Ukperaj. Infringement reports have been signed by drivers Jetmir Cufa, Rustemi on two occasions, and Gjeci. At times, the reporting has been delayed by Covid-19 restrictions. There have been three incidents of small amounts of unrecorded mileage in the same period, all recorded on the vehicle unit for MX11 ADO. I was asked to give weight to the recent dismissal (August) of Driver Gjeci and I was shown evidence of repeated failures to follow instructions. Driver Rustemi has retained his employment despite his attempt to blame the operator for his decision to pack passengers into the vehicle on 27 March 2019. I struggled to understand how a professional driver had permitted this. The claim that there was no convenient railway station close to the Leatherhead interchange simply lacks credibility.

5. Determination

The Fixed Penalty Notice issued in respect of Mr Rustemi’s driving is a matter of record at page 75. One of the passengers left the check site to walk to the train station and Mr Rustemi was permitted to continue his journey.

Mr Cufa remains the sole director, as he was at the relevant time. This is a restricted operator with no transport manager. On his own information he was absent from the country for a period of over 8 weeks both in the subject of quarantine for a further 2 weeks. The Deputy Traffic Commissioner had considered the identified shortcomings referred to by the traffic examiners following a roadside encounter in March 2019. The traffic examiner found that there were no systems in place to meet the undertaking on the operator’s licence. The director had been required to attend a new operator seminar following a previous finding of drivers’ hours infringements. The evidence discloses non-compliance for prolonged periods. The Deputy Traffic Commissioner was so concerned by what he found that he deemed this public inquiry to be necessary. In those circumstances I must be concerned as to the impact of continued operation particularly where the director was absent for a period of 10 weeks. It was only the late involvement of a transport consultant which indicated that some remedial action would be taken.

I am satisfied to the civil standard of proof that I must make adverse findings under sections 26(1)(c)(iii), (ca) and (f) as per the call-up letter.

The Upper Tribunal decision in 2013/007 Redsky Wholesalers Ltd confirmed the applicability of the “Priority Freight” approach is a requirement when considering the question of fitness. I therefore posed 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?

This is not the first intervention and I have referred to warning given to this operator in 2014. In the intervening period there has been further ineffective management and analysis of drivers’ hours. The operator has been slow to change but I do give credit for the involvement of Mr Welleans to monitor and I noted the apparent improvements demonstrated from his recent reports. I also noted that recent maintenance records show effective brake performance testing.

I am assured that an audit in 6 months will confirm full and established compliance. I have weighed that assurance into the balance and conclude that there is some hope, based on the efforts taken to date. However, other operators would rightly question why the level of non-compliance was permitted in the first place. A restricted operator gives assurances that compliance can be attained, even without a transport manager. It was accepted that this case falls within the ‘serious’ category as outlined in Statutory Document No. 10. Fitness is undoubtedly and seriously tarnished.

In 2019/025 John Stuart Strachan t/a Strachan Haulage, the Upper Tribunal confirmed the relevance of deterrent action: “one of the aims of the regime is deterrence, both for the appellant and for operators as a whole, who might be tempted to flout the system”.

I sought to explore the impact of regulatory intervention. Mr Cufa’s statement to the DTC confirms the services provided by the operator, mainly but not exclusively in the London area: commercial scaffolding, industrial scaffolding, domestic scaffolding, independent towers, both static and mobile, cradles, scaffolding in lifts, hanging scaffolding, access scaffold , temporary roof structures, hoists and scaffold security systems and alarms. I have taken more evidence of that today with 45 to 50 jobs on at one time. The operator apparently owns a significant number of poles, boards, clips and ties, which are hired out for long periods. The operator has been using three vehicles, with two in operation during the day for 5 or 6 days per week and the third being loaded for the next day, on rotation. Mr Cufa confirmed that there are only two drivers, with him rarely undertaking some cover driving.

I have accepted the undertaking for a full compliance audit within 6 months of this date but there must be further intervention to ensure that compliance is achieved and sustained. The Operator’s Licence will be curtailed by two vehicles for two months from 23:45 tonight. I make no specific direction under section 26(6) to allow the rotational operation to continue but will instruct the licensing team to keep watch for the vehicles appearing on other licences during that period.

Richard Turfitt

Traffic Commissioner

28/9/2020