Decision

Decision for Safe Access Scaffolding (Midlands) Ltd (OC0295903)

Published 23 November 2023

0.1 In the North Western Traffic Area

1. Confirmation of Oral Decision of the Traffic Commissioner

1.1 Safe Access Scaffolding (Midlands) Ltd (OC0295903)

2. Background

Safe Access Scaffolding (Midlands) Ltd (“the operator”) has held a restricted goods vehicle operator’s licence OC295903 since 7 March 2001 authorising the use of seven vehicles and with that number currently in possession.

The directors of the operator are Raymond Furby and Jason Brooks. The Operator is a subsidiary of NRA Group Limited. The parent company does not hold a licence.

Neither the Operator nor its directors had come to the attention of the Traffic Commissioner before. However, in March 2021, the DVSA encountered a vehicle that was found to be overloaded and issued with a prohibition. This triggered a Traffic Examiner Visit Report to be conducted which was found to be mostly satisfactory. Due to this, a warning letter was issued by the DVSA to the operator.

The licence was called to a public inquiry after I received information from the DVSA about its more recent investigations into the Operator’s compliance.

This started on 27 July 2023 when one of the Operator’s vehicles was encountered at a DVSA check site in Leicestershire. The vehicle was found to be 48% overweight and its load was not strapped down. A prohibition was issued, and the driver was issued with a fixed penalty for the dangerous load.

Another of the Operator’s vehicles was sent to the check site to collect the prohibited vehicles’ loads. On arrival it was found that the driver had not inserted his digi-card in to the vehicle unit. On further examination several occasions were identified when the vehicle had been driven without a card and there was no record of the driver taking a weekly rest. The driver was prohibited from driving until he had taken the required rest and he was issued with a fixed penalty for failing to keep a record.

This encounter prompted a DVSA maintenance investigation visit on 18 August 2023. The Vehicle Examiner and Traffic Examiner’s report recorded a number of unsatisfactory findings including:

• The director details recorded on the licence were not correct.  Daniel Fletcher remained recorded as a director despite having been removed from the Companies House register in 2012. The register revealed that Jason Brooks had been appointed as a director in 2017 but that change had also not been made to the licence record at the time of the DVSA visit (the Operator has since corrected the record).

• Vehicles were not being inspected at the declared 6-week interval.

• There was no forward planner and no vehicle off road recording process.

• No record of daily walkround checks and driver defect books did not appear to be in use.

• There was little evidence of load security training for drivers. There had been toolbox talks by a director, but no training delivered by a qualified trainer.

• There was no evidence that drivers’ licences were checked every 3 months.

• There was little evidence of tachograph management and analysis. Some vehicle units had not been calibrated as required and were not being downloaded at the recommended frequency.

• There were no records of driver disciplinary processes.

• Mr Furby and Mr Brooks appeared to be unaware of the checks that the maintenance provider was undertaking in relation to the tachographs.

• The assessment of Mr Furby and Mr Brooks as responsible persons was unsatisfactory. It appeared they took little responsibility for vehicle maintenance or drivers’ hours and relied on their maintenance provider for those purposes.

A response was sent to the DVSA report by Mr Furby in relatively brief terms but containing assurances that all the concerns raised would be addressed. Mr Furby said the Operator had engaged transport consultants A.I.M Commercial Services Ltd to complete an audit and deliver training for drivers on safe loading and tachographs.

Despite this response, I was concerned about the extent of the shortcomings identified by the DVSA including the absence of some fundamental systems for ensuring compliance.  Hence the call to public inquiry today.

3. The Call to Public Inquiry

The operator was called up to public inquiry by letter dated 2 October 2023.

The call up letter gave notice that the grounds for regulatory action in Sections 26(1)(c)(iii), 26(1)(ca), 26(1)(e), 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.

4. The Public Inquiry

The Public Inquiry was heard at Golborne today. The operator was represented by directors Mr Furby and Mr Brooks with transport administrator Damon Brooks and Eugene McLoughlin Group Director for the parent company NRA Group Limited. The operator and its directors were legally represented by Anton Balkitis of Rotheras Solicitors.

5. Decision

In advance of the hearing, the Operator sent its evidence of vehicle maintenance and driver management to the DVSA as requested. These covered the 3 month period since the DVSA inspection visits. The Vehicle and Traffic Examiners subsequently provided me with written reports on their findings. The findings indicated that significant improvements had been made since the original DVSA visits in August 2023.

The Vehicle Examiner confirmed the following:

• PMI sheets were fully completed with appropriate brake tests.

• There was evidence of a completed forward planner.

• Daily defect report books were now being used.

• A log was provided to record wheel removal and re-torquing.

The Traffic Examiner reported the following:

• The tachograph data disclosed some infringements by drivers but all appeared to be attributable to drivers forgetting to record their breaks while on site. Some however were of a nature that would have attracted roadside penalties and, in one case, a driving prohibition.

• It was noted that all the infringements were recorded prior to the drivers attending a training course for driver’s hours, working time & use of tachograph, the course on 27 October 2023. There was also evidence the drivers were spoken to regarding their infringements on or around 25 October 2023.

• Vehicle units were being downloaded as required with all in scope vehicles are now being driven with a valid driver’s card inserted in the VU.

• It appeared a system for 3 monthly driving licence checks had been introduced with proper checks carried out in September 2023 a further check arranged for December 2023

• Directors Jason Brooks and Raymond Furby and Transport administrator Damon Brooks had attended an Operator Licence Awareness and Compliance Refresher Training course in the past month.

I was provided with financial evidence. This clearly demonstrated the Operator had sufficient financial resources available to meet its statutory requirement and I did not consider that required further discussion at the public inquiry.

The matters that brought the Operator to the hearing today were serious. Had I been reaching a decision based on the DVSA evidence from August 2023 alone, I would have been considering meaningful regulatory action, if not actual revocation,  in the serious category envisaged by the guidance in the Senior Traffic Commissioner’s Statutory Document Number 10.

However, I balance this with a number of positive features. I am satisfied from the evidence that I heard today that the failings were the result of complacency and there was no intention to gain any commercial advantage or a lack of care about compliance. The failings were also not attributable to any lack of resources.

The complacency in part reflected the fact that there were few warning signs to the Operator of the gaps in its approach until the encounters on 27 July 2023. The absence of any other prohibitions or fixed penalties suggests that although there were risks in the Operator’s lack of compliance systems these were not routinely being manifested in actual incidents of roadworthiness or serious driver infringements.

The action that the Operator has taken since the DVSA visits has clearly been effective and has achieved tangible improvements. I am also satisfied that this is not mere window dressing but reflects a genuine commitment to achieving compliance on the part of the Operator. I was also impressed by the evidence that I heard from Mr McLoughlin on behalf of the parent company which clearly also takes the compliance of its subsidiary seriously and is monitoring the position.

I have considered the Priority Freight question, namely, “how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime?” In view of the tangible evidence of changes already made within a relatively short period of time and also taking account of the resources available to the Operator, I consider I can have confidence in future operations being compliant.

I also consider that the urgency and effectiveness of the Operator’s actions to date provide me with sufficient reassurance that formal regulatory action is not needed to ensure future compliance. I also take into account the Operator’s willingness to offer the audit undertaking.

I therefore conclude this matter by recording a formal warning.

Gerallt Evans
Traffic Commissioner for the North West of England

14 November 2023