Decision

Decision for Noble Scaffolding Ltd (OF2033569)

Published 18 December 2020

In the Eastern Traffic Area

Confirmation of the Traffic Commissioner’s Decision

1. Background

Noble Scaffolding Ltd seeks a Restricted Goods Vehicle Operator’s Licence authorising 2 vehicles only. The Director is Ashley Warren.

There is one proposed Operating Centre at The Builders Yard, Everdon Road, Dodford, Northampton NN7 4SS. There was one nominated contractor: Whitepark Services, to undertake Preventative Maintenance Inspections of vehicles at 6-weekly intervals, but that changed during the course of the hearing.

This applicant previously held OF2018055, which authorised 2 vehicles. Following the failure to attend a DVSA New Operator Seminar, the operator was the subject of a Traffic Examiner visit in August 2019. The Traffic Examiner reported a general lack of awareness of requirements regarding driver hours, licence checks and record keeping. At a Public Inquiry followed on 18 December 2019, the presiding commissioner found that the operator was no longer fit to hold a licence. The licence was revoked with effect from 19 February 2020, in order to allow time to wind down operations. A clear indication was given as to what would be required to support any new application (page 31).

2. Hearing

There has been a delay arising from the Covid-19 pandemic. Public Inquiry was listed for today, 20 October 2020, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was present in the form of Ashley Warren represented by Chris Powell, a solicitor from Rotheras.

3. Issues

The applicant was informed on 14 July 2020 that I remained to be satisfied that I should grant the application. The Public Inquiry was called to allow the applicant opportunity to pursue its application by satisfying me that the statutory criteria are met and in particular by reference to the following sections of the Goods Vehicle (Licensing of Operators) Act 1995:

• 13B – fitness,
• 13C(2) – arrangements for complying with the law on drivers’ hours
• 13C(4) – arrangements and facilities for the maintenance of vehicles
• 13D – sufficient finance to support the above.

The applicant was directed to provide up-to-date finances by 6 October 2020, together with evidence of planned maintenance and driver hours compliance systems.

4. Determination

In his decision, revoking the previous licence, Mr Dorrington referred to the following:

• There were no systems at all in place to record and monitor domestic drivers’ hours when Traffic Examiner Darren Lewis undertook his investigation;
• At the date of the Public Inquiry, the driver was filling in a domestic hours book but this was, at best, completed erroneously (because all duty time was exactly to the hour or half hour) or at worst, it was a false record. In any event, what was being filled in was meaningless because, as the sole director told the DTC in evidence, he never checked the book because neither the book nor duplicate pages in it were ever taken from the lorry. When the DTC asked the reasoning behind this, he was told “I haven’t got round to it yet”;
• The operator had no meaningful driver defect reporting system at the date of the Public Inquiry. What is important is what comes out of a system. Here, on 7 November 2019, two serious defects that a driver should spot on a walk around check were identified at PMI. The corresponding DDR sheet recorded “Nil” defects;
• No defects at all were identified by drivers from 27 September 2019 to 17 December 2019. It is not likely there would be no defects at all given the type of work undertaken by this operator;
• No proper wall planner or planner was in place at the time of Traffic Examiner Lewis’ investigation. A wall planner was in place at the time of the Public Inquiry, but it still lacked the forward planning for when the vehicle road tax was due;
• The director had never read the Guide to Maintaining Road-worthiness;
• There had been never been roller road brake testing;
• At the PMI on 7 November 2019, a tachograph fault was identified but there was no evidence before the DTC to show that it had been investigated or rectified;
• The operator did not know what the payload of its vehicle was. The operator had not sought to find that out and in addition did not know the payload for individual axles. The operator did not know the location of the nearest public weigh bridge. The DTC was therefore not satisfied of any adequate system being in place to ensure overloading world not occur;
• The Traffic Examiner still found the operator was non-compliant and said would still score >11 points which means “refer to the Office of the Traffic Commissioner”;
• The operator moved address in June but failed to notify the Traffic Commissioner until November;
• Despite going on an Operator Licence Awareness Training course on 18 September 2019, serious failures in compliance were still found to be occurring and present from that date, right up to the Public Inquiry;
• It was clear there had been, and there remained, a fundamental lack of management control.

The DTC further advised: If this operator wants to apply for a new operator’s licence, it really needs to demonstrate, from a fully satisfactory audit (Maintenance and drivers’ hours) from an accredited and competent provider, that it is capable of being fully compliant. Only then can an interim or full operator’s licence be granted, if applied for.

The application was lodged on 1 June 2020 (page 16) with a supporting letter from Mr Warren in which he states that the single vehicle in possession had been off the road since the date of revocation. Mr Warren also refers to taking advice from Goods Vehicle Licensing Ltd and to having consulted the Guide to Maintaining Roadworthiness, to better understand how to properly manage an operator licence. The actions can be summarised as follows:

• a ‘Transport Management System’ had been created with assistance from Goods Vehicle Licensing Ltd to include ‘a set of policies and procedures’, ‘toolbox talks’ and ‘driver declarations’
• membership of the RHA
• recruitment of a ‘transport manager’ to assist half a day each week.
• re-training for Mr Warren and another driver in areas such as walk round checks, recording of driving time and other work and load security
• proposed outsourcing of drivers’ hours analysis to Tranzaura.

He also proposed an undertaking for an audit to be completed 3 months after grant of the application.

On 29 July 2020 copies of ‘audit reports’ for both drivers’ hours and maintenance systems were provided. These reports were completed by Transport Auditing and Compliance Services and were both dated 25 July 2020. The drivers’ hours audit was largely positive, although it was noted that a tachograph unit needed to be recalibrated prior to use. The maintenance audit noted concerns as to walk round checks, tyre change policy and the standard of work and record keeping of the proposed maintenance contractor. An accompanying letter from the applicant noted proposals to implement audit recommendations; these included switching maintenance providers if the application was granted.

The report explains that it was compiled from answers to set questions and from documents in support of the application. One vehicle file was checked:

• This audit has been requested with an application under consideration. Mr Warren has employed a Transport Consultant, Mr Kemp, to assist with setting up any administration and management. Several items have been identified as requiring attention, but systems have only just been put in place therefore no evidence of on-going compliance can be verified or established. Driver defect reporting and safety inspections were checked against what was previously happening and areas to note going forward.
• Several areas for training have already been identified by the Consultant and evidence that it is planned is on file. The previous maintenance provider was going to be used therefore an examination of their previous records was carried out as part of this audit and is an area of concern. Despite some of the results the Consultant has put in place some good systems and procedures ready for the operation when the licence is granted.
• In view of the amount of driver reportable defects recorded on the periodic inspection reports that were not the subject of a driver defect report, it is recommended that the driver undertakes formal training regarding daily walk around checks and defect reporting.
• Training regarding Safe Loading and Load Security should be undertaken.
• Initial training regarding daily walk around checks and defect reporting should be documented. Regular and on-going training regarding daily walk around checks and defect reporting should be documented.
• It is recommended that a tyre management system is adopted that records all the appropriate details.
• Certain items on the inspection reports have not been fully and/or correctly completed, all safety inspection reports must be completed correctly. Laden brake test efficiencies must be recorded a minimum of three times each year other than those recorded at annual test and spread throughout the year.
• It is recommended that evidence is available that can confirm the persons undertaking the safety inspections are technically competent.
• Records must be kept to support the monitoring of drivers daily checks. A system should be in place to monitor vehicle recalls and the maintenance provider asked if they do this. A system should be in place to monitor the usage of Ad Blu.

For the obvious reason that there had been limited operation and none since revocation and consideration had been further delayed by the Covid pandemic, I was more interested to assess the applicant’s abilities. I was concerned to note that recent attempts to send the proposed driver, Mr Warren’s brother, on additional training had been frustrated when Fleet Source had cancelled the training due to take place at the Ibis Hotel in Birmingham. However, Mr G Warren has already received toolbox talks from Mr Kemp on drivers’ hours and driver defect reporting. The operator intends not to rely on exemption and the driver will have a DCPC and drive under EU rules. Mr Warren described the monthly downloads of driver card and vehicle unit to allow external analysis by Tranzaura and monthly infringement and missing mileage reports. I accepted those as statements of intent.

I noted that Mr Warren has attended training. He also told me that he had benefited from one-on-one instruction from Mr Kemp and this was reflected in his answers around decision of PMI intervals, by reference to basic requirements of the drivers’ hours legislation and load security. It has also prompted him to review the provision of maintenance. He asked that the application be changed, so as to nominate Northern Commercials, as the main Iveco dealer in Northampton, with inspections at 6 weekly intervals to include a laden roller brake test on each occasion. I accepted that undertaking. Mr Warren should refer to the DVSA Guidance: Heavy vehicle brake test: best practice for additional assistance.

I also took account of the paper systems and filing which have been introduced by Mick Kemp. That ‘Transport Management System’, if properly applied should provide a basis for future compliance. It is evidence of Mr Kemp’s involvement. I was told in evidence that he would attend the Operating Centre (where the office is located) once a month. He will then go through the compliance paperwork and any incident which has occurred, with the Director.

Mr Warren was left in no doubt that as the sole Director he is responsible for ensuring compliance with the operator licence requirements. On the previous application he had been content to allow a third party to complete the application form, which he had skimmed. He was supplied with a copy of the ‘My promises’ guidance sheet, prepared by the OTC for the benefit of Restricted Operators, so that there can be no doubt or confusion, as to what is required.

In addition to the commitments above, Mr Warren offered the prospect of a full compliance audit. The applicant confirmed membership of the RHA, that was offered as the likely supplier. I accepted that undertaking by way of additional assurance. The audit is to be conducted within 6 months of this date, to be supplied to the OTC within 14 days of receipt.

On the basis of my assessment of Mr Warren and the arrangements he has put in place, taken with the additional assurances recorded above, I was persuaded that the applicant had met the statutory criteria so that I could grant the licence, albeit with a warning that there can be no repeat of the instances of non-compliance, which led to the previous revocation.

Richard Turfitt

Traffic Commissioner

20/10/2020