Decision

Decision for Nexus Scaffolding Ltd OH2019948

Published 28 May 2021

1. NEXUS SCAFFOLDING LIMITED

1.1 OH2019948

2. PUBLIC INQUIRY IN BRISTOL

2.1 1 FEBRUARY 2021

3. BACKGROUND

Nexus Scaffolding Ltd (OH2019948) currently hold a restricted goods vehicle operator’s licence authorising the use of 8 vehicles and 0 trailers. The licence was considered and granted at public inquiry in March 2019 following links to a liquated company (Phoenix Scaffolding (SW) Ltd - OH1021987).

Sole director Paul Bray was previously named on Phoenix Scaffolding (SW) Ltd’s (OH1021987) restricted goods vehicle operator’s licence authorising the use of 13 vehicles. The licence was granted in July 2003 and revoked in March 2019 after the company had gone into liquidation. The operator was issued with a warning letter in April 2010 following a VOSA inspection.

DVSA conducted a remote assessment of the operator’s compliance systems by way of a desk based assessment (DBA). Mr Bray was initially contacted by DVSA on 5 May 2020. He responded that day to advise that the business was closed and he had no access to the company’s records so it was agreed that the DBA would be held in abeyance.

DVSA tried to contact Mr Bray by phone on 25 June and 16 July 2020 but there was no response. Contact was eventually made on 17 July, Mr Bray confirmed he was working from home but was now able to access the company’s systems and records. He was reminded that the DBA was still required and the request letter was sent to him again giving a deadline for response of 31 July. No reply was received so another 7-day reminder email was sent on 3 August. Mr Bray sent a reply stating he would ‘do my best to get the info to you by the end of next week.’ He was advised that unless the information was provided by close of play on 14 August, a report would be submitted to the Traffic Commissioner.

An email was received from Mr Bray on 14 August which attached only a limited number of documents. An email was sent asking him to complete the REO1 form and advising he re-read the request letter ensuring all of the missing evidence was provided. He was given a final deadline of 21 August 2020. The REO1 form and accompanying letter were received but Mr Bray still failed to provide all the required evidence.

In the DBA summary, Traffic Examiner (TE) David Hughes stated “the operator has failed to provide the required information as outlined below, which means I have been unable to carry out an accurate assessment of the company’s processes and systems on the traffic side.”

The requested copies of driving licence checks were not produced. Mr Bray stated that these checks are carried out annually. The requested drivers’ hours data/tachograph records between 7 February 2020 and 20 March 2020 were also not produced. TE Hughes claimed from the evidence produced, it was apparent the operator did not have a system in place to monitor and manage Working Time and it would appear that they do not understand the requirements. The operator declared that as driving isn’t the main activity, he understood that his drivers ‘are not bound’ by the Road Transport Directive.

Vehicle Examiner (VE) Michael Bale noted the following failings:

• Some DDRs showed no evidence of repairs, example washer jets, air gauge. Door catch broken reported over a four-day period.

• Odometer readings not always being recorded on the driver defect sheets.

• Failure to supply the maintenance records for REDACTED.

• Numerous records for REDACTED did not show that a roller brake test has been conducted or a road test.

• No evidence of inspection of vehicle redacted for a period of 25 weeks.

• No system in place for recording when a vehicle was off the road.

• For the PMI date of 14/03/19 a recorded defect was, “front brake hoses perished”. This indicated a possible failure of the twelve-week frequencies.

• PMI frequency stretched and no evidence of recent PMI inspections/first use checks from 20th March 2020.

• The operator had no training program. Evidence would suggest that some defects being found at PMI indicated a failing in the walk round checks.

• No training on load security

DVSA sent their findings to Mr Bray on 3 September 2020 and a response was received on 7 October. The examiners felt that it failed to address many of the issues. The response for the TE and VE investigations were both marked as unsatisfactory.

These matters were referred to me and I called the operator to public inquiry on the following grounds:

under Section 26(1)(e) of the Act, that statements made when applying for the licence, specifically in relation to maintenance, were either false or not fulfilled

under Section 26(1)(f) of the Act, that undertakings had not been honoured in relation to the fitness of vehicles, observance of drivers’ hours rules, keeping of records and driver defect reporting

under Section 26(1)(h) of the Act, that there had been a material change in that the company was no longer fit to be the holder of a goods vehicle operator’s licence.

4. THE PUBLIC INQUIRY

Paul Bray attended the public inquiry by video link, represented by Jeremy Woodcraft, solicitor, who appeared in person. I am content that proceedings were fair. Mr Bray adopted his public inquiry submissions.

Finances were not satisfactory. I was told it was due to the impact of Covid lockdowns. I asked for evidence to be provided that finances were satisfactory prior to March 2020.

Proceedings were recorded and a transcript can be produced as required. I do not record all the evidence here, only that which is necessary to come to a decision.

5. The evidence of Paul Bray

The business had been totally closed by Covid and was still not operating at full capacity. Use of the vehicles was ad-hoc. Maintenance was also accepted as ad-hoc. He now had a planned schedule for the year. REDACTED had been off the road from August 2020 and was PMI’d before going back on the road in January 2021. REDACTED had covered just over 2000kms between 6 October and 18 December, a low figure. Every inspection included a roller brake test. He now checked PMI sheets but Andy Skelly wouldn’t return the vehicle unless it was roadworthy.

Finances were not a reason for the lack of maintenance. Mr Bray couldn’t remember what periodicity he had put on the 2020 wall planner. For 2021, it had been reduced to six weeks to have fewer defects on them. The 12-week period had been identified as too long at a DVSA new operator seminar.

Vehicles are provided to the maintenance provider 3 days before the MOT to allow time for preparation. That had improved the pass rate significantly.

Driver defect reporting was done using the RHA duplicate books. The system was failing. The drivers had training with Andy Skelly last October. One driver was checked weekly. All drivers report to the office at 7.30 and are briefed on the day’s work. They then loaded the lorry and carried out the walk-round check. Mr Bray and a supervisor were on site to check it was done properly. Some scaffolders found completing driver defect reports challenging.

I took Mr Bray to the inspection reports for REDACTED which was last inspected on 17 September, twenty weeks previously. Mr Bray confirmed the vehicle was in use - he later corrected this to say that it had been taken off the road the previous week for an MOT. I asked why the PMI immediately before an MOT appeared to identify many more defects than others. Mr Bray put it down to the drivers failing to identify defects. The PMIs identified multiple serious defects. Mr Bray told me that he had furloughed his supervisor. I noted that some vehicles had 4½ months between inspections whereas another had been inspected three times in 2½ months. Mr Bray had changed the frequency to 6-weekly in February 2019. Mr Bray had not undertaken any risk assessment of his maintenance before taking the benefit of the MOT extensions for all vehicles.

Driver licences had now been checked. There was no evidence in the documents provided by the operator. Mr Woodcraft told me that he had an email dated 14 January which included one online check. The plan was now to check them every 6 months and to check the licences of new drivers before they were allowed to drive.

Mr Bray’s role was to get the work in and responsibility for health and safety. He could apply the health and safety approach to vehicle maintenance. Of twelve staff in the business, only the supervisor was still on furlough. Most of the work was local authorities and local housing associations. A 7.5 tonne vehicle allowed them to take all they needed for a day’s work. A 3.5 tonne vehicle did not enable that. There was about 200 tonnes of scaffolding up at the moment. Most of the work was for large businesses. The business could not operate with three vehicles, four was a minimum, five for a couple of weeks. He planned to renew two vehicles this year. Leasing was not financially viable. The drivers were not drivers as such, they were scaffolders who drive. If he had fewer vehicles, he would need to employ a delivery driver.

6. CONSIDERATION AND FINDINGS OF FACT

The records provided show the following inspections against a commitment on the maintenance contract dated February 2019 to inspect every six weeks.

REDACTED inspected:

6 October, 9 November and 18 December

REDACTED inspected:

24 August and 8 January

REDACTED inspected:

2 October, 4 December and 15 January

REDACTED inspected:

24 August and 13 November

REDACTED inspected:

17 September (I was told it was taken off the road w/s 25 February)

REDACTED inspected:

19 August and 21 January

From my analysis of the records, each vehicle has, in the main, travelled around 250kms each week. That is consistent with the evidence that all work is within a 15-mile radius and indicates that vehicles are in use every day. The stated inspection period is 12 weeks but Mr Bray changed that to 6 weeks two years ago. It is right that he did because that is in line with DVSA’s Guide to Maintaining Roadworthiness for vehicles over twelve years old. The average age of this fleet is just under 17 years which is elderly by any standard. The number of immediately prohibitable defects found at each PMI is a clear indicator that the actual inspection period, which appears to very between three weeks and twenty-two weeks, is far too long.

I was told that the drivers were trained in defect reporting last October. REDACTED was submitted for PMI on 20 January this year. The defects included:

• Passenger seat-belt cut

• Offside repeater inoperative (repair required new wiring loom, not a bulb)

• Offside rear outline marker inoperative

• Offside front bumper end cap loose

• Nearside front tyre has uneven wear (replaced)

• Nearside side marker inoperative

It would appear that the drivers continue to be unable to report defects even after the training given to them last October.

I have no hesitation in making a finding that both preventative maintenance and driver defect reporting are completely un-managed and the undertakings given when the licence was granted have been breached. Given the number of times that vehicles are submitted for inspection with prohibitable defects, that is to say, presented in a dangerous condition, I attach significant weight.

The vehicles operated are all 7.5 tonnes and I am told that the operation is all within 100 kms of the operator’s base. The drivers use the scaffold and tools carried in the course of their work. They are therefore exempt the EU drivers hours rules. I make no adverse finding in relation to drivers hours and tachographs.

There are some positive features. The MOT pass rate is good which, as Mr Woodcraft submitted, indicates a degree of competence within the maintenance provider. Mr Bray has attended relevant training and drivers have also been subject to training, albeit it seems not to have been effective. There is roller brake testing and the difference between laden and unladen weight for the small vehicles currently operated means that I am less concerned about the vehicles not being loaded for that test. Proper legal representation has been sought which indicates that matters are being taken seriously and that the operator’s licence has value to the operator. I have seen bank statements for the pre-lockdown period which do show a stronger position.

In the negative are my findings in relation to roadworthiness above. I also weigh in the negative that Mr Bray has kept his supervisor on furlough when all operational staff are back at work. That is likely to have contributed to the haphazard inspections conducted on vehicles, a further negative feature in its own right.

Having balanced the positive and negative features, and in noting that the supervisor staying on furlough was a deliberate act clearly intended to cut cost at the expense of management capacity, I find the starting point is “severe”. Action which materially affects the operation is necessary and proportionate and, indeed, revocation could easily be justified and may still be.

Initially, I am willing to offer the operator a means of keeping the operation alive. I note that six vehicles are currently in use. Mr Bray said he needed 5 for two weeks and the business was not viable without 4. I am willing to allow authority to continue but only if Mr Bray accepts three undertakings as follows:

i) All drivers of authorised vehicles will, by 15 June 2021, receive 7 hours, JAUPT-accredited, training which includes a substantial component relating to conducting and recording walk-round checks. Evidence to be sent to OTC Bristol by 30 June 2021.

ii) The operator will, by 15 April 2021, engage a CPC-qualified consultant for at least 7 hours per month to monitor all vehicle compliance processes.

iii) An audit shall be conducted by a competent independent person by 15 June 2021. The scope of the audit shall include systems for the management of maintenance, driver licencing, drivers hours and working time. The audit report will be prepared, acted upon and retained for at least 2 years. A copy of the report together with the operator’s plans for implementing any recommendations will be forwarded to the Office of the Traffic Commissioner by 30 June 2021.

If the operator does not accept those undertakings, I will reconvene the hearing to determine whether the operator remains fit to be the holder of a goods vehicle operator’s licence.

7. DECISION

Pursuant to adverse findings under Section 26(1)(e), and subject to the acceptance of three relevant undertakings, the licence is curtailed to 4 vehicles with effect from 23:59 hours, 26 March 2021.

If the undertakings at paragraph 30 are not accepted, the inquiry will reconvene.

If the undertakings are accepted but fail to be complied with, or should the independent audit identify any significant ongoing issues, the operator will be recalled to public inquiry where its continuing ability to demonstrate fitness will be looked at again against the backdrop of this decision. That is a formal warning to the operator and a marker that the decision to allow the licence to continue was very finely balanced indeed.

Kevin Rooney

Traffic Commissioner

15 March 2021