Decision

Decision for OTT Scaffolding Services Ltd

Published 4 May 2021

0.1 SOUTH EASTERN AND METROPOLITAN TRAFFIC AREA

1. DECISION OF THE DEPUTY TRAFFIC COMMISSIONER

1.1 PUBLIC INQUIRY HEARD AT IVY HOUSE, IVY TERRACE, EASTBOURNE ON 23 FEBRUARY 2021 & 31 MARCH 2021

1.2 OK2030790 OTT SCAFFOLDING SERVICES LIMITED

2. Decision

Breach of Section 26(1) (f) of the Goods Vehicles (Licensing of Operators) Act 1995 found

Licence suspended from 00.01 hours on the 1 May 2021 until 23.59 hours on the 31 May 2021.

Direction made under Section 26(6)(a) of the Goods Vehicles (Licensing of Operators) Act, 1995 that none of the vehicles specified under the licence can be used under any other operator’s licence during the period of suspension.

Undertakings:

a) Director Ashley Baker to attend an Operator Licensing Awareness Training course of at least one day’s duration by the end of June 2021. Enrolment on such a course should have been arranged and a copy of the enrolment confirmation sent to the Office of the Traffic Commissioner by the 31 May 2021. Once attendance has occurred a note from the course provider confirming this should be sent to the Office of the Traffic Commissioner within 7 days of attendance.

b) A transport consultant to be engaged to assist and advise the operator for a minimum of two days per month for at least six months from May 2021. Details of the consultant with a copy of their contract to be sent to the Office of the Traffic Commissioner within 7 days of it being drawn up and no later than the 31 May 2021.

c) An independent audit of the operator’s systems for maintenance and drivers’ hours and the effectiveness with which those systems are implemented to be carried out by the RHA, FTA or other suitable independent body, in October 2021.The audit should cover at least the applicable elements in the annex enclosed with this decision. A copy of the audit report, together with the operator’s detailed proposals for implementing the report’s recommendations, must be sent to the traffic area office in Eastbourne within 14 days of the date the operator receives it from the auditor.

3. Background

The operator OTT Scaffolding Services Limited is the holder of a restricted licence authorising two vehicles granted on the 3 August 2020 at a public inquiry. The sole director of the company is Ashley Baker.

The application was called to the public inquiry on the 3 August 2020 because the Traffic Commissioner had found at a previous inquiry on the 6 June 2019 that a licence held by James Sines (OK1145457) had been lent to Mr Baker and used by his company OTT Scaffolding Services Limited. The licence held by James Sines was revoked with effect from 15 June 2019.

In addition to the finding made by the Traffic Commissioner regarding previous lending of the licence there were concerns that OTT Scaffolding Services Limited may have been operating during the period between the revocation of the licence held by James Sines and the public inquiry held on the 3 August 2020.

At that inquiry I heard evidence from Mr Baker in relation to the background of his company and his links with Mr Sines (junior) who he described as his business partner albeit that Mr Sines was not a director of the company. He told me that the use by OTT Scaffolding Services Limited was during a period when a licence was held by Mr Sines (senior) and this was a result of a misunderstanding as to what was lawful. He told me that the vehicles that required authorisation had been parked up and not used since he had realised the consequences of doing so. I accepted what Mr Baker was telling me as truthful and granted the licence on that basis. I also accepted Mr Baker’s assurances that regulatory compliance would be maintained if a licence were granted.

A statement by Traffic Examiner Clarke dated 19 October 2020 stated that a vehicle authorised to this operator was observed on the 26 August 2020 heavily laden with scaffolding. Although the vehicle was not stopped or weighed the traffic examiner believed the vehicle was overloaded. Checks also revealed that the roadworthiness certificate (MOT certificate) for the vehicle had expired on the 31 January 2020. The same vehicle was seen laden with scaffolding by Traffic Examiner Clarke on the 13 September 2020 when the roadworthiness certificate had still not been renewed.

In addition, the statement from Ms Clarke said that she had seen a vehicle in use by the operator on the 22 July 2019, which was after the revocation of the licence held by Mr Sines (senior) and before any new application had been made.

A request for records relating to maintenance of the vehicles and drivers’ hours compliance was sent by Ms Clarke to the operator on the 10 September 2020. Mr Baker requested further time to produce the documentation and Ms Clarke agreed to this on three occasions. Despite this no documentation was sent to her by the first date for the inquiry which was the 23 February 2021.

4. The Public Inquiry

The public inquiry was scheduled for hearing on the 23 February 2021 through Microsoft Teams in accordance with the arrangements in place following Covid restrictions. My discussion with Mr Baker proved difficult because of technical issues with the internet connection and I decided to postpone the inquiry so that he could attend in person. It was apparent that he had not sent the requested documentation to Ms Clarke so I directed that she would set out again what she required, and that Mr Baker should send it to her by the date specified. I also advised him that I would be making further checks on the possible use of vehicles prior to the grant of the licence. Detail of the information required was set out in a letter dated 25 February 2021 and the hearing adjourned until the 31 March 2021.

A report by Ms Clarke dated 24 March 2021 was sent in advance of the hearing and this stated, in summary, that Mr Baker had sent some of the documentation requested by Ms Clarke, but this was limited in amount and showed that there were significant failings in relation to drivers’ hours records and maintenance related systems such as driver walk round checks. In conclusion Ms Clarke said that whilst “Mr Baker has good intentions he severely lacks the knowledge to manage his operator licence to the levels expected by the DVSA and the Traffic Commissioner.” She also said that Mr Baker had been invited to a DVSA new operator seminar but had failed to attend despite a prior indication that he would do so.

I had directed that ANPR checks should be carried out on the two authorised vehicles for the period June and July 2020 which were the two months preceding the grant of the licence on the 3 August 2020. These checks showed that vehicle YK54BUO had been flagged on 69 occasions over 20 days and DX61GUJ on 121 occasions over 30 days.

Mr Baker attended the inquiry and was accompanied by a member of his staff, Leah Jackson. Traffic Examiner Clarke attended and gave evidence via Microsoft Teams.

5. Evidence

I commenced the hearing by reminding Mr Baker that he had told me at the inquiry on the 3 August 2020 that he had ceased using the vehicles prior to that inquiry once he realised that he was not able to do so. I asked him to clarify when this was, and he said that he had meant the time when he applied for the licence. I pointed out that this was in February 2020 and yet the ANPR data showed use of both vehicles during June and July 2020. He said that he could not say when the vehicles were used during those months, but work had been slow because of lockdown. He also said that if the ANPR data showed the vehicles had been used then “hands up” he had to accept that this was the case.

Traffic Examiner Clarke confirmed the contents of her original report and the update prepared for the inquiry. She said that Mr Baker had recently sent her print outs of the tachograph records but did not seem to be aware that the vehicle and driver data should have been downloaded and analysed. The drivers’ walk road check sheets that had been sent were for trailers and there was evidence of some defects such as a faulty ABS light being left awaiting repair for several months.

Mr Baker said that he had been unaware of what was required and was anxious now to get things right if he was given a chance. He had not attended the DVSA seminar but would be keen to do so and would pay to attend if needed. He now had the assistance of Leah Jackson and she had started to organise the business much more effectively. Ms Jackson said that whilst she had no existing knowledge of operator licensing she was also keen to learn. Mr Baker said that with her assistance he was confident that they could do what was required if they were given a chance.

6. Findings and Decision

There have been breaches of Sections 26 (1) (f) of the Goods Vehicles Act, 1995 in this case in that the undertaking to keep vehicles in a fit and serviceable condition has not been met. One vehicle was without a roadworthiness certificate for over a year, the documentation eventually presented to Ms Clarke was lacking and there is evidence of driver detectable faults being found at inspection rather than being picked up by the drivers. Analysis of drivers’ hours records was completely missing. It is also obvious to me and accepted eventually by Mr Baker that what he told me in relation to use of the vehicles prior to the grant of the licence in August 2020 was false.

There are some positives to add into the balance in that it does appear some limited improvements have been made since Ms Jackson has been employed and financial expenditure has been shown in relation to the repair and maintenance of the vehicles.

In accordance with the guidance given by the Senior Traffic Commissioner in Statutory Document 10 I need to consider the level of seriousness and I have concluded that this case is in the serious to severe category. In considering whether the licence should be revoked I have to ask myself the question set out in the case of Priority Freight Limited & Paul Williams, how likely is it that this operator will operate in compliance with the operator’s licensing regime if allowed to continue? In other words, can the operator be trusted going forward? In this case the answer to that question is finely balanced. The past behaviour of Mr Baker is not encouraging in that he lied to me at the inquiry on 3 August 2020 about previous use of the vehicles and when the licence was granted, he did very little to find out what was required. My concern is that the promises he made at this present inquiry may not be carried through if I allow him to retain the licence. On the other hand, the input and assistance of Ms Jackson may be the factor that makes the difference and move Mr Baker to the point where he sees for himself that compliance is a necessity if his business is to survive. Having considered all these factors, I have decided against revocation of the licence but I emphasise how close the operator has come to this being my chosen course. If ever there was a case where a last chance is being given this is it.

Despite my decision not to revoke this licence substantial regulatory action needs to be taken to reflect the seriousness of the case and I therefore order suspension of the licence for the whole of May 2021 – this means that from 00.01 on the 1 May to 23.59 on the 31 May the licence is suspended, and the authorised vehicles must not be used. I also make a direction under Section 26(6)(a) of the Goods Vehicles (Licensing of Operators) Act, 1995 that none of the vehicles specified under the licence can be used under any other operator’s licence during the period of suspension. I direct that alert markers be placed in relation to the vehicles so that if they are used during the period of suspension, I should be informed. For that period, the operator must manage with smaller vehicles that do not need an operator’s licence or employ another operator with a standard licence to take on the work as a temporary measure.

Mr Baker indicated at the inquiry that he was keen to attend training and that he would pay for this if required. I therefore accept an undertaking that Mr Baker should attend an Operator Licensing Awareness Training course of at least one day’s duration by the end of June 2021. Enrolment on such a course should have been arranged so that a copy of the enrolment confirmation can be sent to the Office of the Traffic Commissioner by the 31 May 2021. Once attendance has occurred a note from the course provider confirming this should be sent to the Office of the Traffic Commissioner within 7 days of him doing so.

After the inquiry and before my decision was made, I enquired whether Mr Baker would agree to an undertaking to engage a transport consultant and he indicated that he would. I therefore accept a further undertaking that the operator OTT Scaffolding Services Limited shall engage the services of a transport consultant for a minimum of two days per month for at least six months commencing in May 2021. Details of the consultant with a copy of their contract to be sent to the Office of the Traffic Commissioner within 7 days of it being drawn up and no later than the 31 May 2021.

Finally, I seek an undertaking that an audit of the transport operation is carried out in October 2021 so that a check can be made if the promised improvements have been made and maintained. Full details of that undertaking are shown in the decision box.

I emphasise again how close to revocation this operator has come. If it is found that the specified vehicles are used by this or any other operator during the period of suspension, if the undertakings for training or engagement of a transport consultant are not carried out or the audit shows significant failings in October, it is highly likely that the operator will be called back to another inquiry and revocation will be ordered.

John Baker

Deputy Traffic Commissioner

13 April 2021.