Decision

Decision for Sky-Hi Scaffolding Limited

Published 24 March 2022

0.1 EASTERN TRAFFIC AREA

1. DECISION OF THE DEPUTY TRAFFIC COMMISSIONER

1.1 PUBLIC INQUIRY HEARD AT THE TRIBUNAL ROOM, OFFICE OF THE TRAFFIC COMMISSIONER, EASTBROOK, SHAFTESBURY ROAD, CAMBRIDGE,

3 MARCH 2022

1.2 OF0232080 SKY-HI SCAFFOLDING LIMITED

2. Background

Sky-Hi Scaffolding Limited holds a restricted operator’s licence issued on the 28 August 1999 authorising five vehicles with three currently shown as in possession. The directors of the company are Dean Malcolm Osbourne and Tracey Sally Osbourne.

On the 25 May 2021 a prohibition was issued by the DVSA in relation to an authorised vehicle RX14SYW. The prohibition was marked as showing a significant failure of roadworthiness compliance in that various defects were found with the vehicle including a wing missing and an insecure under-run device which should have been detected when a daily walk round check was conducted.

A follow up investigation was conducted by the DVSA on the 17 August 2021 which was marked as unsatisfactory. There were very limited policies and procedures in place for key areas, an absence of downloading and record keeping in relation to drivers’ hours and ineffective daily walk round checks and maintenance provision.

Mr Osbourne told a DVSA inspector that two of the vehicles nominated on the licence at the time the prohibition was issued, RX14 SYW and PF11HDN, were owned by a company called Cambridge Scaffold Limited and had been hired by him from that company. However, he denied ever using PF11HDN although ANPR checks revealed that the vehicle had been used frequently between January and June 2021 in the Coventry/Rugby area. Cambridge Scaffolding Limited had held an operator’s licence but this had been revoked on the 23 August 2019.

3. The Public Inquiry

Mr Osbourne attended the public inquiry on behalf of the company and was represented by Ms Newton. A statement from Mr Osbourne had been submitted prior to the hearing together with some accompanying documents.

4. Evidence

Mr Osbourne outlined the background to the company and said that he had not undertaken any training at the time that the licence was granted in 1999. He had purchased a tachograph analysis system, Global Tech, but had not understood how to use it. He had believed that drivers of his 7.5 tonne vehicle LJ57SJO were exempt from keeping records and using tachograph cards but now understood that this did not apply if the drivers also drove larger vehicles. He accepted that there was no evidence of drivers using cards in relation to the 18 tonnes vehicle SN08BKE which had been authorised on the licence from the 11 Mach 2021 to the present. Those vehicles were owned by the company and had been used together with a vehicle KX57 VJU which was authorised from the 4 September 2017 until the 11 March 2021 and PO51XOP which had been on the licence from the time of grant and was currently off the road awaiting scrappage.

He told me that the director of Cambridge Scaffolding Limited, Daniel Crockwell had agreed a plan with him in late 2019 to work together on a scaffolding project for an energy company. It had been proposed that Mr Crockwell would supply two vehicles, PF11HDN and RX14SYW together with drivers for those vehicles. The work would be done jointly, and the profit divided equally once the expenses including the hire costs had been deducted. In the event one of the vehicles PF11HDN had not been fit for purpose and so had never been used by Mr Osbourne’s company. RX14SYW had been used by SKY-Hi Scaffolding Limited for about three months at the start of 2020 but Mr Crockwell had then failed to pay Mr Osbourne money that was owed to him and the vehicle was returned.

Mr Osbourne accepted that these two vehicles had been authorised on the licence for Sky-Hi Scaffolding Limited until the 7 June 2021 and that the registration details for RX14SYW had been altered after the stop of the vehicle and issue of a prohibition on the 20 May 2021. He said that he did not remove the vehicles because he did realise the implications of failing to do so. He had changed the registration details and repaired the vehicle following the stop on the 20 May 2021 because the DVSA officer had told him it was his responsibility as the vehicle was on his licence. Mr Crockwell had not told him that he had an operator’s licence revoked. He had just said that the hire arrangement was needed because he could not manage to undertake the work with smaller vehicles. Mr Osbourne said that he had not spoken to Mr Crockwell about what had happened in relation to the vehicles in question.

In the statement sent in advance of the hearing Mr Osbourne listed a range of proposals which he promised would produce improvements in compliance. These included the appointment of CPS qualified transport manager, new policies and procedures, changed maintenance provider, reduction in PMI frequency and laden rolling road brake tests at each PMI. He accepted that there had been a failure to achieve acceptable compliance levels to date and said that he had been taken advantage of by a former employee Jason Fordham as well as Daniel Crockwell. He had been suffering serious ill health and had relied on others who had let him down. He had been naïve but asked for the chance to be allowed to continue and to make the necessary improvements now he knows what is required.

Ms Newton accepted that this was a case at the most serious end of the spectrum but submitted that I could trust Mr Osbourne going forward with the various undertakings and safeguards proposed. She submitted that the personal difficulty he suffered as a result of ill health was a fact I could take into account in determining the severity of the various failings.

5. Findings and Decision

A key factor in my decision is my finding in relation to the purported hire arrangement between Sky-Hi Scaffolding Limited and Cambridge Scaffolding Limited. It is accepted by Mr Osbourne that two vehicles which were owned by Cambridge Scaffolding Limited and were nominated on Sky-Hi Scaffolding’s licence from January 2020 until June 2021. His explanation is that an arrangement had been agreed whereby his company would hire the vehicles to undertake joint working between the companies but in the event, one vehicle was not used at all and the other for a period of “about three months”. Mr Osbourne says that the vehicles were left on the licence for Sky-Hi Scaffolding Limited because he didn’t realise the implications of doing so and his attention to what was required was diverted by his health problems and the problems associated with the pandemic. An alternative explanation is that Mr Osbourne knew that the vehicles were not supposed to be authorised on the licence but allowed the situation to continue knowing that Cambridge Scaffolding Limited were continuing to use the vehicles under the authority of Sky-Hi Scaffolding Limited. For that version to be preferred I would need to conclude that Mr Osbourne was aware of the unlawful use by Cambridge Scaffolding Limited from the outset and of the revocation of their licence.

Having heard from Mr Osbourne and assessed his evidence I find that it is more likely than not that his version of events is credible. He described himself as naïve and this was the way he presented when giving evidence. There is no evidence to show that he gained financially because of the vehicles being on the licence or of what he told the DVSA differing from his evidence at the inquiry. I also accept that the serious health issues he was dealing with distracted him from his business affairs. Having said this his actions in allowing the hire arrangement to be set up without checking its’ legality and failing to remove the vehicles once that arrangement failed is negligent to the point of recklessness and a matter I must reflect in my decision.

In addition, it is accepted by the operator that the compliance systems in place to date have been minimal. There has been almost a complete absence of driver’s hours compliance and significant improvements required in the maintenance regime. Promises are now made to achieve compliance, but these have been made in response to the call to public inquiry. There have been breaches of Section 26 (1)(c) and (f) of the Goods Vehicles (Licensing of Operators) Act, 1995

In determining the seriousness of the case, I need to balance the negative factors as set out above with any positive I can find. I give Mr Osbourne credit for his candour in that he has not attempted to persuade me that the compliance regime was better than it was. He is offering to employ a Transport Manager, introduce a variety of new procedures and to engage professional consultants to analyse tachograph records.

Having balanced all aspects of the case I have to decide whether the operator has the necessary fitness to hold a licence and I have to ask myself the question as set out in the case of Priority Freight Limited & Paul Williams i.e. how likely is it that this operator will operate in compliance with the operator’s licensing regime? In other words - can the operator be trusted going forward? In this case the answer is not straightforward. On the one hand Mr Osbourne is promising to make the necessary changes and provide safeguards for doing so, on the other hand he has been negligent to the point of recklessness in the way he has operated in the past. On balance I have decided that I am prepared to give the operator a chance and am able to step back from revocation of the licence but it is “only just”. Mr Osbourne should be in no doubt that in future he will need to maintain high levels of compliance and if he does not any licence that is held by the present company, other companies of which he is a director or by him as an individual is likely to move quickly to revocation. As a first step he needs to be diligent in making sure himself that compliance is as it should be and not rely just on assurances from others.

Having decided that the licence can remain in force I still need to take significant action proportionate to the level of seriousness and therefore order the suspension of the licence with immediate effect until 00.01 hours on the 1 May 2022 and curtailment of the licence to three vehicles with immediate effect.

As evidence of sufficient finance was not consistent in the documentation produced prior to the inquiry I also set a condition that evidence of financial standing in the sum of £6,500 (the amount applicable to a restricted licence authorising three vehicles) for the period April to June 2022 shall be sent to the Office of the Traffic Commissioner by the 31 July 2022.

I seek agreement to the following undertakings which were outlined on behalf of the operator at the inquiry:

a) A CPC qualified transport manager approved by or on behalf of the Traffic Commissioner shall be employed by the operator for not less than 8 hours per week no later than the 1 May 2022. The operator will notify the Traffic Commissioner if the approved person leaves their employ at any time.

b) PMI intervals for all authorised vehicles shall be set at 8 weeks with immediate effect.

c) Laden rolling road brake tests will be carried out at all PMIs.

d) An independent audit of the transport operation will be conducted in October 2022. A copy of the audit with the response from the operator to any recommendations shall be sent to the Office of the Traffic Commissioner within 14 days of receipt. (A schedule detailing the areas that the audit must cover will be sent with this decision notice.)

John Baker

Deputy Traffic Commissioner

7 March 2022