Decision

Decision for S J Scaffolding Ltd (OF1117344)

Published 26 October 2020

In the Eastern Traffic Area.

Confirmation of the Traffic Commissioner’s written decision.

1. Background

S J Scaffolding Ltd holds a Restricted Goods Vehicle Operator’s Licence authorising 3 vehicles only. The Director is Shaun William Collins. This licence was granted with a warning as to the importance of keeping my office informed of relevant changes. An undertaking for an audit to be completed within 6 months of grant was also given.

There is one Operating Centre at Summer Hill Farm, Pipps Hill Road North, Crays Hill, Billericay CM11 2UJ. There is one declared contractor showing on the licensing record: Gill 365 Commercial Ltd, undertaking Preventative Maintenance Inspections of vehicles at 5 weekly intervals. The Vehicle Examiner reports that this is a mobile mechanic without premises. The maintenance inspections are completed outside at the operator’s premises. Gill 365 Commercials Ltd was not listed on the licence at the time of the investigation but was being used. The record was updated on 22 June 2020. Mr Collins has been involved with a number of operator licences:

• OK1063395 – B.D.H Scaffolding Ltd held a restricted licence authorising operation of 4 vehicles. Mr Collins’ resignation on 10 November 2006 was not notified. He then signed the licence renewal checklist on 17 October 2011, describing himself as a ‘director’ when he was an administrative and sales manager.

• OF0232273 – M Collins traded as J K Scaffolding Services. That restricted licence was granted on 8 October 1999 with authority to operate 5 vehicles. The licence was surrendered on 4 November 2003 following a change of entity to:

• OF1025204 – J & K Scaffolding Ltd. That restricted licence was granted on 28 October 2003 with authority to operate 7 vehicles but the licence was not continued after 30 September 2008.

• OK1051793 – J & K Scaffolding Ltd. That restricted licence was granted on 1 December 2005 with authority to operate 7 vehicles. It was revoked on 22 September 2006 following the company’s liquidation on 24 May 2006.

2. Hearing

The Public Inquiry was listed for today, 3 September 2020 in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was present in the form of Shaun Collins, Director. He was accompanied by Mark Acraman who was described as a supervisor. I noted from the driver defect reports that he also drives. The hearing was listed to start at 10 am but the operator failed to obtain verified bank statements. I permitted additional time meaning that the hearing did not commence until gone 11.

3. Issues

The public inquiry was called for me to consider whether there were grounds 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)(b) – failure to notify change in maintenance provider
• 26(1)(c)(iii) – prohibitions
• 26(1)(ca) – fixed penalty notices
• 26(1)(e) – statements (maintenance intervals and maintenance provider)
• 26(1)(f) – undertakings (fit and serviceable, records, driver defect reporting, driver hours)
• 26(1)(h) – material change as to fitness and finance
• 28 – disqualification

The licence was granted subject to an undertaking that the operator would commission an audit of its maintenance and compliance systems, to be undertaken by a trade association or equivalent qualified third party organisation, within 6 months of the licence being granted. A copy of the audit, along with the operator’s written assurances for any shortcomings highlighted, was to be provided to the licensing staff in Leeds within 14 days of the report being completed. There is no evidence on record to suggest that this undertaking was complied with. It was accepted that this audit was never completed.

4. Summary of Evidence

DVSA carried out a maintenance investigation on 20 February 2020. This followed a previous unsatisfactory maintenance investigation in November 2018. The Vehicle Examiner, Mr Hudson, reported concerns including:

• Lack of proper management control
• Some maintenance records missing
• Stated maintenance inspection intervals exceeded
• Lack of monitoring of driver defect reporting
• Prohibition issued at fleet check

The written response to shortcomings received did not satisfy the DVSA examiner.

My concerns were communicated in a letter dated 25 June 2020 (page 86) and a Public Inquiry was requested. As indicated above, Directions were not complied with. It was only in response to a correspondence from this Office that I was notified that Mr Collins had been self-isolating due to contact with a person showing Covid-19 symptoms.

I refer to Mr Hudson’s findings. He noted that maintenance records were of a suitable format but records had not been retained from the previous vehicle. Mr Collins stated that he has the records but they were not produced at the Public Inquiry. The driver defect reports were of an out of date format. The operator originally claimed that drivers complete the reports before leaving the yard but later admitted that the forms are returned to the office after the drivers return. Mr Hudson noted that there was some evidence of driver defect reporting but others without date or endorsement. The documents produced to me in advance of the Public Inquiry show driver defect reports for the following dates: April 21, March 2, 3, 5, 9, 10, 13, 18, 19, 26 and 27, February 21, 24, 26, 27, 28. All are Nil reports despite the Preventative Maintenance Inspections identifying driver detectable defects.

A fleet check was carried out of vehicle EU59DHE, the only vehicle on the operator’s licence. It was found that the nearside outer wall tyre on Axle 2 had damage and cords exposed. The driver’s seat belt did not retract, not capable of performing its intended purpose. A notice was issued with 6 advisory concerns identified: mandatory front external mirror dirty, prop shaft carrier bearing badly worn, oil leak from engine onto road surface, brake warning light on dash, mandatory external mirror cover missing and insufficient clearance between the wing and tyre. The annual test was due on 30 June 2020 but due to the pandemic it has now been booked for 24 September 2020. I have seen a wall planner which records inspections and download dates but not VED or calibration. In his response to the investigation in November 2018, which Mr Collins produced, he asserted that he had full management control of the transport operation. He referred to quarterly brake performance tests. He was put on notice of the need to ensure thorough record keeping.

I have carried out an analysis of the photocopies of the Preventative Maintenance Inspections lodged prior to the Public Inquiry: all recent inspections appeared to have been considered within the 6 ISO week intervals. However, not one of the inspection sheets contained a signature confirming roadworthiness. I was unable to determine who had carried out the inspections as there is no stamp or other indicator beyond a scribble. I noted a roller brake performance test on 1 July 2020 and 17 February 2020 but no brake test on any other inspection. I noted than an oil leak repeatedly appears on the inspections without any evidence of driver defect reporting. I noted other driver detectable defects on 27 May 2020 and 17 March 2020 with no report. The odometer reading on 3 January 2020 appears to be the same as that on the record for 21 November 2019 although written in a different hand. I also noted that the date for 27 May 2020 had been altered. The operator was unable to explain these anomalies, indicating a lack of scrutiny and oversight.

The VE requested a written explanation but was not satisfied by the reply dated 2 March 2020. He attempted to call Mr Collins on 4 March 2020 with no success. He followed up with an email requesting to see the missing records but no further response was received.

The VE found based on the prohibition notices issued that there are shortcomings in the maintenance system leading to concern over the ability of the operator to maintain their vehicle in a fit and roadworthy condition. Mr Collins disputed some of the Vehicle Examiner’s findings. His email of 21 February 2020 emphasised his experience in the industry. He also referred to an unnamed “family friend” who assists with paperwork and filing, as a reason for some paperwork not being available at the time of inspection. He argued that the defects were not as severe as stated and that they were being monitored through the driver defect reporting system. He indicated that he had no intention of changing the maintenance arrangements. In evidence today he accepted the observations from Mr Hudson and my own concerns.

The prohibition notices are a matter of record and set out from page 65 onwards in my bundle. I am not aware of any of those notices having been appealed:

• 28/07/2016, MK02NDV, delayed. Fuel tank and/or mountings insecure; Fuel tank mounting insecure; significantly insecure; Axle 0: One of two straps broken, rear strap
• 14/12/2017, LF06GRZ, delayed. Tyre has a break in fabric or deep cut or damage to the side wall or tread area; Tyre has damage to the tread area; breaker cords damaged in the tread area; Axle 2; Near Side; Obligatory seat belt vandalised/ inoperative/ defective/ insecure/anchorage or seat mounting weak - seat belt buckle damaged centre retro fit seat; Loss of air/vacuum.; Loss of air in braking system without brake applied; pressure can be sustained with engine on ‘fast idling’; Axle 0.
• 19/03/2018, LF06GRZ, immediate. Load Securing; Insecure load with evidence or likelihood of movement, causing, or likelihood of, danger; No load securing; Axle 0, Tyre has a break in fabric or deep cut (see note 2a) or damage to the side wall or tread area; Tyre has damage to the side wall; body cords damaged; Axle 2; Off Side.
• 12/04/2018, LF06GRZ, delayed. Excessive movement in steering joint; Excessive movement in steering joint; (excessive abnormal movement); Axle 1; Near Side.
• 20/02/2020, EU59DHE, immediate. Tyre has a break in fabric or deep cut (see note 3) or damage to the side wall or tread area; Tyre has damage to the side wall; and cord or cords are exposed; Axle 2; Near Side; Delayed - seat belt vandalised/ inoperative/ defective/ insecure/ cut/ signs of overstretching/ damaged/ Modified; Seat belt, buckle or retractor inoperative; Not capable of performing its intended purpose - not in use; Axle 0; Off Side. Mr Collins states that it was not intended to use the vehicle. I have not seen a driver defect report.

I refer also to the offence notices from page 71 onwards:

• 13/07/2016, MK02NDV, Offence prohibition notice (drivers hours): Failure to produce record sheets/driver card/print out x 2
• 14/12/2017, LF06GRZ, Offence prohibition notice – defective tachograph, with Fixed penalty notice
• 19/03/2018, LF06GRZ, Fixed penalty notice for dangerous condition due to load security
• 12/04/2018, LF06GRZ, Offence prohibition with Fixed penalty notice, insufficient weekly rest period (more than 3hrs x 2)

In the past 5 years, the operator had 10 annual tests: 3 first-time passes, 3 passes initially recorded as fail, 4 failures. In the past 2 years, the operator has had 1 test at MOT, passed first time.

5. Determination

I am satisfied to the civil standard of proof that I should make adverse decisions under the following provisions: sections 26(1)(b), (c)(iii), (ca), (e), (f).

The circumstances amount to persistent offending with a substantial number of previous prohibitions, etc. resulting from ineffective management control and insufficient or no systems and procedures in place to prevent operator licence compliance failings. There is a low average first-time pass rate at annual test with evidence of previous unsatisfactory maintenance investigations with insufficient and/or ineffective changes made to ensure future compliance.

The operator offered the following undertakings:

• To ensure that maintenance is conducted under cover and over a pit or full height ramps, commencing 1 month from this date;
• Metred testing of brake performance at every PMI, with at least 4 laden roller brake tests per year.
• Mr Collins and Mr Acramam to attend Operator Licence Awareness Training and to provide proof of attendance within one month of this date.
• Full Compliance audit to be returned within 4 months of this date. OTC to to provide the audit template and wording of the undertaking.

As per the Upper Tribunal decision in 2013/007 Redsky Wholesalers Ltd – I start with the initial question in 2009/225 Priority Freight: how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime? There must be some doubt as to that ability although the undertakings offer some hope. The failure to deliver the audit as per the undertaking at grant seriously undermines the weight which I can attach to these undertakings. Fitness is undoubtedly and seriously tarnished. There is a clear need for deterrent action so that this operator and other operators are left in no doubt that this level of shortcoming will not be tolerated and that there can be no repeat. I have taken account of the impact on the business and the licence will be curtailed by 2 vehicles to allow 1 vehicle only, with immediate effect.

RT/TC/3/9/20