Decision

Decision for SGL and Son Scaffolding Ltd (OF2003605) and driver Glenn Steven Bingle

Published 10 February 2021

IN THE EASTERN TRAFFIC AREA

SGL AND SON SCAFFOLDING LTD – OF2003605

AND

DRIVER – GLENN STEVEN BINGLE

1. CONFIRMATION OF THE TRAFFIC COMMISSIONER’S DECISION

2. Background

SGL and Son Scaffolding Ltd holds a Restricted Goods Vehicle Operator’s Licence authorising 3 vehicles only. The Directors are Glenn Steven Bingle and Stacy Bingle.

There is one Operating Centre at Springvale Farm, Goatswood Lane, Navestock, Romford RM4 1HE. There is one declared contractor showing on the licensing record: Truck Care Ltd, undertaking Preventative Maintenance Inspections of vehicles at 12-weekly intervals. The specified vehicles are L200 SGL (originally FJ61MDK) and SV14 WLD. SV14 WLD has been off the road since 11 August 2020, as the dealership is unable to repair it, with finance outstanding. In the period between hearings Mrs Bingle reviewed the intervals by reference to the Guide to Maintaining Roadworthiness and proposed reducing intervals to 8 weeks, based on the carrying of ‘constant heavy loads’, which I have considered.

Mrs Bingle previously held OF1110417 as a sole trader, operating from the same address at Springfield Farm. That licence terminated when its continuation was not sought in April 2017. Representations refer to the business being established in 2010, with Mrs Bingle working as a sole trader known as GSB Scaffolding (an acronym for Glenn and Stacy Bingle). In April 2012, Mrs Bingle applied for an operator’s licence as Stacy Gaywood t/a GSB Scaffolding operating from Springvale Farm in Romford. In July 2016 Mrs Bingle applied to change the name of the business and to increase the authority to three vehicles. Continuation of that licence was not sought at the end of April 2017 as this entity had been incorporated in August 2016.

3. Hearing

The Public Inquiry commenced on 11 January 2021, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was present in the form of Mrs Bingle represented by Carolyn Evans, solicitor, of CE Transport Law. I was informed that Mr Bingle was at home undertaking childcare responsibilities, which could not be delegated due to the current restrictions. I was informed that Mrs Bingle took the lead in matters relating to the Operator’s Licence. I had also noted the content of written representations submitted in advance. I therefore endeavoured to commence that part of the hearing. After hearing Mrs Bingle’s evidence I determined that it was in the interests of the operator to go part-heard, so that all matters could be considered together. I agreed with Ms Evans to relist on 19 January 2021.

4. Issues

The public inquiry was called for me to consider whether there were grounds for me 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)(c)(iii) – prohibitions

• 26(1)(ca) – fixed penalty notices

• 26(1)(f) – undertakings (drivers’ hours and tachographs, vehicles to be fit and serviceable, driver defect reporting, safe loading)

• 26(1)(h) – material change with regards to fitness and finance

• 28 – disqualification of directors and operator to be considered.

Glenn Steven Bingle has been called to a conjoined Driver Conduct Hearing to consider whether he should be permitted to continue to rely on his vocational driving entitlement.

The operator was directed to lodge evidence in support by 16 December 2020, and in particular:

• evidence of the availability of finance by way of average over the last three months;

• regular safety inspection records for the last 12 months;

• maintenance contract(s);

• driver defect reports covering the same period;

• forward planner;

• evidence of systems for ensuring compliance with the drivers’ hours and tachograph legislation;

• evidence of training or disciplinary action received by drivers and managers.

The financial evidence produced on 24 December 2020 does not meet the required sum. It has proved difficult to calculate both bank statements and the credit card statements. The latter were averaged and then added to the bank statements to the benefit of the operator. Submissions have confirmed that the full authority is not being used.

5. Summary of Evidence

Vehicle L200 SGL was stopped by Metropolitan Police on 18 February 2020. The vehicle was being driven by the Director, Glenn Bingle, and specified on this Operator’s Licence. That incident is summarised in the police report (page 31) and the statement of PC Lascelles (page 35).

Mr Bingle’s driver card and the digital vehicle unit were both downloaded, and the data analysed for the period 21 January 2020 and 18 February 2020. A number of infringements were identified, including:

24 January 2020 – driven 2 hours 11 minutes, 78 km without a card;

25 January 2020 – driven 3 hours 5 minutes, 144 km without a card;

31 January 2020 – driven 2 hours 14 minutes, 79 km without a card;

1 February 2020 – driven 2 hours 4 minutes, 114 km without a card;

5 February 2020 – driven 3 hours 37 minutes, 204 km without a card;

8 February 2020 – driven 2 hours 1 minute, 84 km without a card.

As PC Lascelles correctly states, if a driver is using a digital driver card then the card should be inserted into the vehicle unit when the driver starts his working day and then it should remain in the vehicle until the driver’s working day has ended. If the driver card is not inserted, then records of the driver’s activity are not recorded correctly. Mr Bingle did not have printouts, a diary or other record of his activities during the above periods.

Mr Lascelles put the allegations to Mr Bingle. Mr Bingle initially suggested that the vehicle may have been driven by other drivers that had not used a driver card. He claimed to keep a diary but that his children had spilt drink on it. (Mr Lascelles had recorded ‘ink’.) He also claimed that he had lost his previous driver card and suggested that this might explain the lack of recording. In fact, his card was valid from 15 January 2020. Mr Bingle was unable to explain the days of driving without a card nor could he provide a satisfactory response to the days of missing data on his driver card. He then went to telephone his wife.

After speaking to his wife on the phone, he admitted that he was the only driver of the vehicle (FJ61MDK). The drivers he initially claimed may have committed the offences had left the company between October 2019 and January 2020. He made no reply when it was suggested that he was responsible for the periods of driving without a card. The written representations confirm that Mr Bingle was driving L200 SGL. Mr Bingle was required to telephone his wife to check he was the only driver. This was confirmed in Mrs Bingle’s evidence. She referred to the decision to keep a log following a previous stop involving a Driver Fish. It was subsequently confirmed that this was the second offence notice issued to Mr Fish in September 2019. Mr Bingle was consistent in his evidence. He told me that he was always under the impression that he was not required to insert his card and that a scaffolder exemption applied. He could not remember what he was told and could not explain why he had not been prompted to check. He always looked at his himself as just a scaffolder even though the ability to drive an in-scope vehicle is important to his livelihood.

Mr Bingle accepted five fixed penalty notices in relation to days of driving without a card (the maximum, which could be issued at the roadside). Those are a matter of record (page 63). It was only after that incident that he then understood “how bad we were” but this followed two earlier offence notices for a failure to keep a record to different drivers on 9 March 2018 and 14 April 2018. (Mr Bingle was not even aware that the earlier offence concerned driver’s hours.) I refer to the 3 roadworthiness prohibitions (page 55), two immediate and one variation on 2 October 2017 and 13 September 2019. They refer to unsafe loads and a weight prohibition was issued on 9 March 2018 for 14.15% on axle 2 and 15.17% gross overload. A total of six fixed penalty notices have been issued.

The representations accept that the vehicle was never ‘locked in’ to the company, there was no company card, and the vehicle unit had never been downloaded. I was told that Mrs Bingle sought immediate advice from a neighbouring Transport Manager, following which she ordered a company card (now seen), a downloader and she implemented a monitoring spreadsheet. I am asked to accept that this arose when the vehicles were upgraded in February and June 2019; the operator apparently failed to appreciate what was required to download the vehicle unit. There was also a mistaken belief that they might rely on a scaffolder’s exemption but failed to clarify this and were unclear in what circumstances this applied. They failed to distinguish between that vehicle and SV14 WLD. Mr Bingle claims his failure to use a card was not dishonest but simply reflected his confusion. I am unsure why he would ever have used a card if he were so sure about the exemption.

However, I find the claim of ignorance impossible to reconcile with the Prohibition notices, which are a matter of record and in particular:

• The notice of 9 March 2018 refers to a failure to enter details on centerfield/Fail to produce record sheets and that the vehicle was overweight by 15%, with an accompanying Fixed Penalty Notice. TE Gilmore was told that Driver Burke received a warning and has also left employment but that vehicles now attend a weighbridge. A repeat offence led to a laminated card (see below).

• Similar issues arose on 13 April 2018 with a Prohibition and Fixed Penalty Notice for a failure to use a tachograph record sheet and Driver Fish failed to comply with a traffic order. It was only after this incident that the operator started to record who had actually driven.

• A notice was also issued on 13 September 2019: prohibitions for insecure load / inoperative indicator bulb, but also a failure to produce records with 3 Fixed Penalty Notices for failing to produce record sheets, excess weight, and no CPC card. I note that there was a follow up engagement with the DVSA Remote Enforcement Office. Again, Driver Fish has left his employment.

• In addition, the notice of 2 October 2017 refers to insecure load, direction inoperative and ABS on EY08 EBZ. Driver Hounslow is no longer employed by the operator.

As I said, the operator appeared to rely on the fact that vehicles had been changed in February and June 2019, but that does not stand up to scrutiny. In evidence I was told by Mrs Bingle that drivers had been creating analogue records prior to that change. I referred to the two instances recorded above where Mr Fish was issued with fixed penalties and an equivalent offence notice was issued against the operator for “Fail to use tachograph record sheet” – not a failure to keep a log. The first notice was issued in April 2018, but it took until September 2019 for the operator to consider its management systems. In her evidence, Mrs Bingle claimed confusion about what was required, and that the operator thought it was only necessary to keep a record beyond 100 km. The absence of any log of who was driving before September 2019, suggests otherwise.

On their own admission, they only contacted Mile Bay Consultancy Limited after receipt of the letter from OTC. On advice, Mrs Bingle requested this hearing. The subsequent preparation confirmed that the operator had also failed to produce or obtain infringement reports for drivers. Mrs Bingle acted on advice to upgrade from Soloplus to Smart Analysis, to obtain monthly infringement reports. They say that it only then dawned on the operator that drivers were not using the correct mode switch, when on a break. I was told that they are now using Smart Analysis to obtain missing mileage reports. I am referred to reports from November 2020 as evidence that the vehicle is rarely used off-card. Mrs Bingle has apparently increased the number of downloads to weekly on the driver cards and monthly for the vehicle units. I am referred to a spreadsheet to help monitor this.

I was informed that the Operating Centre is close to the family home, where the office is currently located. The ground is rough and does cause regular defects with tyres. I was told that Truck Care Limited is a large commercial facility with undercover bays, pits, and a roller brake tester, which is utilised at every PMI. Mrs Bingle has apparently acted on advice to adopt a yearly planner. I noted that the last inspection of SV14 WLD was on 17 June 2020, with the previous inspection being 19 weeks and 5 days previously, on 31 January 2020. The most recent inspection included an acceptable brake performance reading with some imbalances. Most inspections, dating back to 12 July 2019 recorded driver detectable defects. The inspections for L200 SGL, generally record a roller brake test, although that on 26 November 2020 showed insufficient load on axle 2. There was a road test on 2 September 2020 but others dating back to January 2019 show RBT results, although some notable imbalances on the different axles, particularly in May 2020. Mrs Bingle was unable to explain why the inspection interval had been stretched. The vehicle went off-road but only after the inspection was overdue. It was suggested that the contractor had not been able to accommodate the operator. There was no paperwork or risk assessment to confirm this. Again, all the inspections suggest that driver detectable defects have not been reported as per the undertaking on the licence.

The written representations suggest that drivers were recording ‘nil defects’ even when they had to repair a component. This only changed from September 2020 but evidently standards did not improve, as the inspection of 26 November 2020 clearly shows. Defects are now monitored in Mrs Bingle’s book. I am told that she is aware that driver detectable defects have been left to the PMI. There was a toolbox talk with Mr Bingle on 5th December 2020. Mrs Bingle apparently conveyed her reading of various on-line sources. I have noted appendices 7 and 8. They do not reflect well on Mr Bingle as a professional driver.

The picture, which emerged from the evidence is not one of genuine confusion. The claims to have reacted promptly whenever advised are undermined when the operator failed to make obvious inquiries, which should have been investigated immediately after the DVSA intervention. Mrs Bingle undertook on-line training modules as evidenced at Appendix 13 – disciplinary procedures, driver walk round checks, transport operation risk assessment, how to use a digital tachograph, guide to drivers to ensure compliance, drivers’ hours, and Working Time Directive. All the certificates are dated 21 December 2020, i.e., after the date when she undertook a toolbox talk with Mr Bingle. At the date when she gave evidence, she had yet to even book an Operator Licence Awareness course and, whilst she claimed to have read the Guide to Maintaining Roadworthiness, she appeared unsure of its content. In the intervening period she completed attendance at Operator Licence training on 14 January 2021.

I saw no evidence of Mr Bingle having undertaken those same driver modules, but he indicated that he had completed on-line training. He told me in evidence that he had held a Driver Qualification Card for 6 years but could not remember which modules he had completed to renew his Driver CPC shortly before the stop in February last year. He could recall attending first aid training. He is now booked to attend the same operator training on 21 January 2021.

6. Determination

I am satisfied to the civil standard of proof that I may make adverse findings under the following sections: 26(1)(c)(iii) – prohibitions, 26(1)(ca) – fixed penalties, 26(1)(f) – undertakings (drivers’ hours and tachographs, vehicles and trailers fit and serviceable, driver defect reporting, safe loading), 26(1)(h) on the finance required to support the full authority.

In written submissions it was suggested that the above circumstances arose from a misunderstanding about driver’s hours from the outset. I fear that the failings go beyond that and it is accepted that the evidence demonstrated an inconsistent approach to the basic requirements of the operator’s licence. As Mrs Bingle acknowledged, the operator failed to respond to the prohibitions. The claims to rely on a scaffolder’s exemption were not backed up by any effort to confirm that position.

I accept and take account of the fact that this is the first Public Inquiry and of the annual test pass rate. I was told that the vehicles were upgraded in a bid to improve compliance, although the second vehicle is no longer operational. I have noted the improved analysis and management systems, reflected in the November infringement reports and the records at Appendix 4. I was told about improved driver licence checks. Immediately prior to the reconvened hearing I received written submissions confirming that the operator has just attended the Operator Licence Awareness Course (14 January 2021). I also give credit to the operator that it no longer seeks to rely on any exemption. I adopt that as a statement of intent.

This is undoubtedly a SERIOUS case. The appellate Tribunal has repeatedly emphasised that drivers’ hours compliance is fundamental to road safety. In 2010/063 Cornelius Pryde Hart stressed the duty on an operator who undertakes to make proper arrangements so that the rules on drivers’ hours and tachographs are observed and proper records kept, is clear. It is not for anyone else to take responsibility for advising the operator, who must acquire a proper understanding of the drivers’ hours rules, and that he should not make false records. There is no issue that the rules on drivers’ hours and tachographs were clearly breached. I am referred to an emerging picture since the stop check in February 2020, but the operator should never have allowed itself to be in that position.

I refer to the Tribunal decision in 2013/082 Arnold Transport Ltd: The Tribunal has stated on many occasions that operator’s licensing is based on trust. Since it is impossible to police every operator and every vehicle at all times the … Traffic Commissioners, must feel able to trust operators to comply with all relevant parts of the operator’s licensing regime. In addition other operators must be able to trust their competitors to comply, otherwise they will no longer compete on a level playing field. In our view this reflects the general public interest in ensuring that Heavy Goods Vehicles are properly maintained and safely driven. Unfair competition is against the public interest because it encourages operators to cut corners in order to remain in business. Cutting corners all too easily leads to compromising safe operation. The Tribunal went on to indicate that the attitude of an operator when something goes wrong can be very instructive. I accept that the answers given to Mr Lascelles were not an attempt to blame previous employees, but more an indication of the level of confusion in the mind of Mr Bingle. During his evidence, he frequently looked to Mrs Bingle to furnish him with the answers and did not give the impression of having a strong grasp of the licence requirements. I took his wish to get things right, to be genuine. In his evidence he assured me that the operation has a very different way of working to before.

In written submissions, whilst acknowledging the Upper Tribunal decision in 2013/007 Redsky Wholesalers Limited, it was suggested that fitness, should only be revisited, if untruths have been told or information omitted during the application process. I agree that the appropriate finding is to be made under section 26(1)(h) but I find no legal justification for excluding the question of trust or the ability to comply with licence requirements simply because this is a restricted licence holder. It might be said that, in the absence of professional competence, they assume even more importance. Any decision is to be made under the discretionary grounds, but this is a preventative jurisdiction concerned with the safety of road users in Great Britain. I see no argument to deny the public those protections. It was suggested in submissions that the operator had largely been reactive. I struggled to see that level of response until just before and after the first hearing. So, further to the appellate decision in Redsky Wholesalers Ltd, I proceeded to consider the question posed in 2009/225 Priority Freight, namely: how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime?

I took note that the business has increased incrementally every year since inception but that was not reflected in the approach to compliance, even though there was turnover to support investment. I note that the issues with the second vehicle have now limited those operations. However, this is not simply a matter of a Director driving without a card on 6 occasions, nor is it a case of the operator being ill-equipped to meet the basic requirements of the Operator’s licence; it is the lack of a response to previous DVSA interventions, which calls into question the future of this licence, as I need to be able to trust this operator to take proactive steps when those have been sadly lacking in the past.

For Mr Bingle’s position as a driver, I refer to sections 110-122 of The Road Traffic Act 1988. Section 121(1) of the 1988 Act defines conduct as:

• in relation to an applicant for or the holder of a LGV driver’s licence or the holder of a LGV Community licence, his conduct as a driver of a motor vehicle.

It was suggested by Ms Evans that the pattern of driving was more akin to examples of failing to use a tachograph record, than failing without reasonable excuse to make a relevant record or entry. In making that submission she sought to distinguish between a mistaken but genuinely held belief and a deliberate action. It was suggested that I should take account of the fact that Mr Bingle had worked a full day when the offences were committed, but that represents exactly the type of risk which the regulations are designed to address, namely that from driving tired. I can take account of the type of offence which resulted from the DVSA examination, in addition to the occasions when the vehicle had been driven without a correctly inserted card.

I was also invited to take account of Mr Bingle’s previous record. The representations accept, as per the Administrative Court, on the application of Meredith and Others EWHC 2975 (Admin) 18 that personal circumstances of the driver are, at the preliminary stage of consideration of fitness, irrelevant to the question whether his conduct as a driver has been such as to make him unfit, save to the extent that those circumstances concern his conduct as a driver. The Court did not go on to consider the applicability of the principle of deterrence, which was considered by the Court of Session in Thomas Muir Haulage case, so regulatory action might be taken to assist in the achievement of the purpose of the legislation

It was suggested that the experience of these proceedings was sufficient to bring home the seriousness of his conduct. It is acknowledged that the starting point is dependent upon whether I find that he was deliberately driving without a card and therefore there was deliberate falsification and dishonesty. The representations refer to negligence; that appears to be an accurate description but is not acceptable from a professional driver.

I accept that I can depart from the starting point around the deliberate failure to keep a record. However, in the context of a regulated environment trust is more than being honest when challenged about your deficiencies. Operators and professional drivers must be trusted to scrutinise their operations, to ask questions and to check their own compliance, seeking outside professional assistance when required. This is a scaffolding business where a driver is expected to be involved in other parts of the business and is expected to have the skills to do so. I might have some sympathy for a driver where the operator’s systems are lacking but Ms Evans correctly anticipates the relevance of Mr Bingle’s position as a Director, particularly where there had been previous DVSA penalties for similar instances. I am asked to take account of the improvements, which I have recorded in the summary of evidence. I noted that training and improved management processes. The current position is that there is one vehicle and Mr Bingle is the only driver. Latest reports indicate that there are systems in place. The most recent infringements on 17 December 2020 relate to Mr Bingle cutting short his breaks by a few minutes. It is for that reason then I determined to consider the matters holistically so that any intervention is proportionate.

I cannot ignore the fact that, whilst Mr Bingle works as a scaffolder and runs the vehicle and scaffolders on a day-to-day basis and it is Mrs Bingle who is said to manage the office including transport compliance, they are both Directors and share that responsibility under the restricted operator’s licence. Mrs Bingle had the previous experience as a sole trader and then a Director of an operator, but neither of them took steps to ensure compliance. It is accepted that they require the support of a consultant. An undertaking was given to employ the services of an external transport consultant to visit the premises no less than quarterly, for the next 12 months, and until Mrs Bingle is familiar with the compliance and monitoring required in relation to driver reportable defects, the Guide to Maintaining Roadworthiness, PMI auditing and adequate training. That does not appear to address Mr Bingle’s ability to fulfil those responsibilities, but he will attend some training on Thursday.

I sought to understand the potential impact on the business of any intervention. I was usefully reminded that the operator has authority for 3 vehicles and only one vehicle specified. The operator sought to persuade me that a curtailment of the licence would be an appropriate intervention. For the reasons set out above, this is not a case where intervention will not have a material impact on the operation of vehicles. There can be no repeat of long periods where the operator ignores the obvious need to make inquiries. I must also take deterrent action to address the risk of any further lapse in Mr Bingle’s approach to driving. Any action against Mr Bingle’s vocational entitlement, in effect prevents the operator from operation unless and until it has secured an alternative driver. I was told that this will be difficult. The operator has prepared itself for a period when it may have to rely on smaller and out of scope vehicles. That will impact on its ability to accept larger work and will incur additional costs. The market changes at different times of the year and I take account of the impact of the pandemic. School work may not be possible with children of key workers still attending, but surprisingly loft conversions have continued. The operation usually aims to plan work with two-week’s notice, as 70-80% of work is supplied by regular customers. I was asked to allow 1 week to prepare for action resulting from this Public Inquiry. The vocational entitlement will be suspended for a period of three weeks. The operator’s licence will be suspended for a period of three weeks, the fitness of the operator to hold a licence is tarnished. Both periods will commence at 23:45 on 24 January 2021 following which the operator’s licence will be returned to the level for which finance has been demonstrated. The period will expire just before half-term.

Richard Turfitt

Traffic Commissioner

19 January 2021