Decision

Decision for LG Upright Scaffolding Limited (OC2029644)

Published 15 May 2024

0.1 In the North Western Traffic Area

1. Confirmation of Oral Decision of the Deputy Traffic Commissioner

2. Public Inquiry Held on 11 April 2024 in Golborne

3. Operator: LG Upright Scaffolding Limited (OC2029644)

4. Background

LG Upright Scaffolding Limited (“the operator”) has held a restricted goods vehicle operator’s licence OC2029644 since 4 September 2020 authorising the use of two vehicles with that number currently in possession.

The sole director of the operator is Lee Griffiths.

In 2023, the DVSA identified from ANPR camera sightings that one of the Operator’s vehicles, GK61XPZ, was being used regularly on public roads after its previous annual test certificate expired on 30 November 2022. The ANPR evidence showed 328 sightings over the 4-month period from the expiry date to 30 March 2023. The DVSA wrote to the Operator on that latter date about the matter and Mr Griffiths replied on 18 April 2023 to say he was unaware the test had expired and blamed an oversight. He said he had booked the vehicle in for a test on 11 May 2023 (when it passed on initial presentation)

Subsequently on 7 August 2023 the same vehicle was issued with an immediate prohibition for a defective indicator light during a roadside encounter.

This prompted the DVSA to arrange a maintenance investigation visit on 22 September 2023. Vehicle examiner Paul Snelson’s report noted a troubling absence of systems and records with several processes that appeared to have introduced only after the visit had been arranged. This included the previous absence of a forward planner that had contributed the use of the vehicle without a valid test certificate. It appeared there was no driver defect reporting scheme in place and that had contributed to the prohibition as the driver ought to have spotted the issue.

The report commented on the absence of any evidence of continuing professional development by Mr Griffiths, but it was noted the Operator had recently engaged the services of a qualified Transport Manager to assist with its future compliance. The Operator subsequently submitted a response to the DVSA report offering assurances that all the issues with its compliance had been addressed by the adoption of new systems and with the guidance of the aforementioned CPC holder.

However, given the extent of the shortcomings identified and the lack of tangible evidence of improvement, a decision was made to call the Operator to this public inquiry.

Neither the Operator nor its directors had attended a public inquiry previously or otherwise come to the attention of the Traffic Commissioner before. There were no other prohibitions recorded over the past 5-year period.

5. The Call to Public Inquiry

The operator was called up to public inquiry by letter dated 12 February 2024.

The call up letter gave notice that the grounds for regulatory action in Sections 26(1)(c)(iii), 26(1)(f) and 26(1)(h) of the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”) were to be considered as well as the provisions for disqualification in Section 28 of the Act.

6. The Public Inquiry

The Public Inquiry was heard at Golborne today. The operator was represented by director Lee Griffiths and his wife Nicola Griffiths who assists him in managing the business. The operator and Mr Griffiths were legally represented by Simon Newman of NA Legal Solicitors.

7. Evidence

In advance of the hearing, the Operator sent its evidence of vehicle maintenance to the DVSA as requested. These covered the last 6-month period. The Vehicle Examiner reported that the evidence showed a further improvement since his visit in September 2023. However, he expressed concern that he had not been given records for a vehicle that had been sold in January 2024 and that he was not shown any evidence of roller brake testing.

The Operator subsequently provided me with evidence of inspections for the “missing” vehicle up to the date of sale. I was also given evidence of the Operator’s continuing engagement of a transport consultant and Mr Griffiths booking to attend an operator licensing awareness training (“OLAT”) course late this month.

The Operator conceded today that it had few systems in place prior to being informed of the DVSA visit in August 2023. This had contributed to both the use of the vehicle without MoT and the prohibition. Mr Griffiths’ evidence suggested that he was largely reliant on his maintenance provider to guide him on what he should be doing. I was told the business had faced many challenges at the start of the licence including the pandemic and family issues for Mr and Mrs Griffiths.

It appears that the events of 2023 culminating in the DVSA investigation prompted Mrs Griffiths to become involved in assisting with the administration of the business. I was impressed with her evidence today and found it reassuring that she is now involved supporting Mr Griffiths’ management of the business.

The Operator repeated the assurances given in evidence before the hearing of the improvements it had made in its approach including changing the maintenance provider and engaging the consultant. I was told that the use of the untested vehicle had ceased in mid-April 2023 when the issue was flagged up by the DVSA. It was not used again until it was tested on 11 May 2023 when it passed on first presentation.

I invited submissions on the consequences of regulatory action and was told that the Operator could cope with a short period of up to 10 days curtailment with difficulty and if given sufficient notice.

8. Findings

I have considered the evidence as set out in the brief together with the supplemental reports prepared by the DVSA examiner and the oral evidence on behalf of the Operator today.

The prohibition issued on 7 August 2023 satisfies the grounds for regulatory action in Section 26(1)(c)(iii) of the Act.

I find that the DVSA evidence shows that the Operator has not honoured the undertakings it signed up to when it applied for its licence and specifically the undertakings to keep vehicles fit and serviceable, to keep records for 15 months of driver defect reports, safety inspections and routine maintenance and to ensure that drivers report promptly any defects or symptoms of defects that could prevent the safe operation of vehicles, and that any defects would be promptly recorded in writing. This meets the grounds for regulatory action in Section 26(1)(f) of the Act.

Finally, I find there has been a material change in the circumstances of the licence holder, specifically regarding the requirement that it must not be unfit for the purposes of Section 13B of the Act. The continued operation of a vehicle with an expired MoT is highly relevant to the question of fitness. Taken with the other findings recorded above, I determine that there has been a relevant and material change in the circumstances of the operator that meets the grounds for regulatory action in Section 26(1)(h) of the Act.

9. Determination

Having reached the findings of fact recorded above, I have considered the balancing exercise and have considered the positive and negative features by reference to the guidance in the Senior Traffic Commissioner’s Statutory Document Number 10.

There are several negative features that I must take into account:

•        I find the continued use of the vehicle without MoT was a reckless act by the operator that led to an undue risk to road safety and an unfair commercial advantage.

•        The use of the vehicle without a valid test certificate for 4 months amounts to persistent offending.

•        It is clear that prior to the notification of the DVSA visit, there was ineffective management control and insufficient systems and procedures in place to prevent operator licence compliance failings.

I balance this with the following positive features:

• There is evidence that appropriate systems and procedures are now being put in place to prevent operator licence failings although more remains to be done.

• This is the Operator’s first public inquiry.

• Mr Griffiths has recognised the need to seek informed advice and has engaged Mr Hudson to assist going forward.

• The Operator co-operated with enforcement investigation.

On balance, I consider the negative features outweigh the positive features, and I am satisfied that this is a case that falls in the “moderate” category as suggested in Statutory Document 10 for the purposes of assessing the starting point for regulatory action.

I have gone on to consider the Priority Freight test of whether I can trust the operator to be compliant in future. I am persuaded that I can have confidence that the operator in the control of Mr Griffiths (and supported by Mrs Griffiths) to be compliant in future but that is dependent on the Operator honouring the assurances it has given me today and continuing the improvements to its systems.

I consider that formal regulatory action is required to ensure Mr Griffiths understands the need to achieve full compliance and that the remaining issues are addressed swiftly.

I consider the appropriate form of such action is a curtailment of the licence for 14 days allowing the operation of only one vehicle during that time. I have noted the representations arguing for a shorter period, but I consider that a curtailment for at least a full fortnight is proportionate to underline the serious compliance failures of the past and the need to ensure they are not repeated. I will however defer the start of the curtailment period to allow the Operator sufficient time to make alternative transport arrangements.

Mr Griffiths should be left in no doubt that if he wishes his company to continue operating goods vehicles, he must ensure that he is fully focussed on compliance going forward as he can ill-afford to be called to public inquiry again when the operator would be at risk of far more serious regulatory action being taken.

Gerallt Evans
Deputy Traffic Commissioner

11 April 2024