Decision

Decision for South Manchester Scaffolding Ltd (OC2040949)

Published 23 November 2023

0.1 In the North Western Traffic Area

1. Confirmation of Oral Decision of the Traffic Commissioner

1.1 South Manchester Scaffolding Ltd (OC2040949)

2. Background

South Manchester Scaffolding Ltd (“the operator”) has held a restricted goods vehicle operator’s licence OC2040949 since 3 August 2021 authorising the use of one vehicle.

The directors of the operator are Michael Eric Meadowcroft and Michael Colin Porter.

The licence was granted after consideration at a preliminary hearing in July 2021. The application was called before a Traffic Commissioner as Mr Porter had previously been the director of another company that held an operator’s licence, and which had been revoked in 2016. The operator’s application form did not disclose that Mr Porter was a director nor the previous licensing history.

After receiving evidence from Mr Meadowcroft at the preliminary hearing (Mr Porter did not attend due to a health issue), the presiding commissioner was satisfied the failures were attributable to negligence and granted the licence but with a formal warning. Safeguards were recorded in the form of an undertaking by the Operator that preventative maintenance inspection (“PMI”) intervals would not be greater than 6 weeks and to retain those records for 2 years. There was a statement of intent that Mr Meadowcroft would act as the “responsible person” for the licence and would attend a DVSA new operator seminar.

On 21 March 2023, the Operator’s vehicle was issued with an “S” marked prohibition for a defective tyre at annual test when other defects were also noted.

This prompted a DVSA maintenance investigation visit on 13 April 2023. The Vehicle Examiner’s report recorded a number of unsatisfactory findings including:

• Stretched PMI intervals. The shortest interval over the last 15 months was 12 weeks with the longest an apparent 28 weeks. This was well outside the undertaking to ensure PMIs at no greater than a 6-week interval.

• PMI records were incomplete and lacked confirmation that defects had been appropriately rectified.

• The maintenance provider had been changed in March 2023 and not notified on the licence record

• There was a 100% failure rate at annual test. The vehicle was inspected shortly before thew MoT test and the tyre defect ought to have been spotted then.

• There was no evidence of systems for wheel and tyre management.

• Concerns about the effectiveness of Mr Meadowcroft’s management of the licence as responsible person. He had not attended a new operator seminar despite the undertaking in 2021 and could not provide evidence of any continuing professional development.

A response was sent to the DVSA report by Mr Meadowcroft. He sought to blame the previous maintenance provider for the stretched inspections and failures in defect recording but did not address why those issues were continuing with the new provider. Mr Meadowcroft claimed a wheel and tyre management system had now been implemented and that arrangements had been made for the vehicle to be inspected nearer the date of annual test.

These matters prompted the call to public inquiry.

The Operator also applied to change its operating centre in August 2023. That was granted but despite reminders, the Operator has still not removed the previous Operating Centre from the licence.

3. The Call to Public Inquiry

The operator was called up to public inquiry by letter dated 10 August 2023.

The call up letter gave notice that the grounds for regulatory action in Sections 26(1)(b), 26(1)(c)(iii), 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 initially listed for 25 September 2023 but was adjourned at Mr Meadowcroft’s request as he had a prior commitment.

The Public Inquiry was heard at Golborne today. The operator was represented by director Mr Meadowcroft. Mr Porter did not attend due to health issues.

5. Evidence

In advance of the hearing, I was provided with a bundle of copy documents by the operator. The Operator had ben directed to serve these on the DVSA so the Vehicle Examiner could inspect them before the hearing. This was not done.

In a covering letter, the Operator conceded that it had not had sufficient finances in its bank account to meet the requirement to have £3,100 available. It claimed that amount had now been deposited. The financial evidence provided before the hearing did not give any balance information and was not an original or certified copy.

No evidence of driver management including tachograph and drivers’ hours analysis was provided despite being clearly requested.

The vehicle maintenance documents were presented as loose pages in little order.

After some time spent organising the documents, they were found to contain an audit form consultants Logico dated 11 October 2023 and PMI sheets. A driver defect book was provided but the most recent entry was in March 2023. This would have been considered during the maintenance investigation visit and bears out the Vehicle Examiner’s concern that driver detectable defects were not being recorded.

There was a 14-week gap in PMI sheets between 3 March 2023 and 21 June 2023. Otherwise, the most recent inspections appeared to have been undertaken at the 6 week intervals agreed.

The inspection records contained some handwritten evidence of a brake test at every inspection except for the most recent inspection in October 2023. The only evidence of roller brake testing was in February 2022. The Logico audit said that the test had been carried out using a roller brake tester but confirmed that the vehicle was unladen. Laden tests are only undertaken at annual test, contrary to the clear guidance in the Guide to Maintaining Roadworthiness.

A card was produced showing evidence of a wheel change on 30 October 2023 but there was no other evidence of a wheel management policy. The audit confirmed the absence of a tyre management policy.

The audit report contained a number of further recommendations:

• The Operator was reminded again of the need to remove its old operating centre.

• The Operator was reminded of the need to update its maintenance provider as identified by the DVSA in April 2023. This was finally done on the date of the audit.

• The Operator did not hold records of inspections going back 2 years as required by the terms of the undertaking it offered on grant of the licence. It did not even hold records for 15 months in accordance with the standard conditions.

• There was no forward planner.

• Driving licence checks were not being undertaken.

• Mr Meadowcroft needed additional training. He claimed he had not been invited to the new operator seminar but has now arranged to attend an OLAT course.

• The MoT pass rate is now 50% but is still well above the national average.

In the covering letter, Mr Meadowcroft said the Operator had now subscribed to the Aquarius app to improve its approach to maintenance.

Mr Meadowcroft attended the hearing today and presented some print outs of a NatWest account. These were not certified copies. The first entry was dated 27 July 2023, and the last entry was dated 9 November 2023. However, it was apparent that many dates were missing from the statements including entries for the whole of October and most of August and September. The print outs showed a current balance of (£redacted) but did not give any previous balance and it was impossible to calculate if the available amount over the previous 3 months had met the requirement of the licence.

Mr Meadowcroft also produced a certificate of attendance at an OLAT course last Friday.

In evidence today, Mr Meadowcroft said the business had been through a difficult time financially as a result of becoming VAT registered. He conceded that the amount to the Operator had fallen below the required level until very recently. He said the financial evidence presented was the best he could obtain at short notice (despite the fact the original call up was issued on 10 August 2023).

Mr Meadowcroft said he would ensure £3,100 remained available from now on. This would be achieved, if necessary, by Mr Porter and him taking reduced wages from the business. He also hoped the removal of VAT registration would lead to more work for the Operator. There was no evidence presented to support these assertions. The scaffolding business is Mr Porter’s sole occupation, but Mr Meadowcroft also owns a pub although the takings from that are less than from this business.

During the evidence, it became clear that there remain significant gaps in Mr Meadowcroft’s knowledge of what is required to be a complaint operator. This was typified by my questions about brake testing. Mr Meadowcroft had never heard of the Guide to Maintaining Roadworthiness. He could not tell me the frequency with which brake testing was recommended nor the type of brake tests that were undertaken on his vehicle. Mr Meadowcroft said he instructed the maintenance provider to do what was needed but did not have the knowledge to give more detailed instructions or to monitor the outcomes.

Mr Meadowcroft said he had lost the previous inspections records despite being aware of the undertaking given to keep them for 2 years. I pointed out the gap in inspection intervals of 14 weeks between March and July 2023 in the records produced for the hearing. Mr Meadowcroft said he was sure the vehicle would have been inspected within that time and suggested that sheet had also been lost.

Mr Meadowcroft said he had now obtained the Aquarius app to use for record keeping and he hoped this would address the issues going forward. He also offered a willingness to arrange another audit in 6 months’ time.

6. Findings of fact

The evidence of the DVSA and the audit were not contested and accordingly I make the following findings of facts in relation to the statutory provisions:

• The failure to notify the change of maintenance provider contravenes a condition on the licence and satisfies the grounds for regulatory action in section 26(1)(b) of the Act.

• The “S” mark prohibition issued on 7 March 2023 satisfies the grounds for regulatory action in section 26(1)(c)(iii) of the Act.

• Statements made on applying for the licence have not been fulfilled including adherence to the stated maintenance inspection intervals, and the attendance of Mr Meadowcroft at a new operator seminar. This satisfies the grounds for regulatory action in section 26(1)(e) of the Act.

• The undertakings relating to keeping vehicles fit and serviceable and to ensure drivers hours rules were met have not been met. This satisfies the grounds for regulatory action in section 26(1)(f) of the Act.

• The Operator concedes that it did not have access to the amount required to show it has sufficient financial resources to hold an operator’s licence and meet the requirement of Section 13D of the Act. This amounts to a material change in the circumstances of the licence holder and satisfies the grounds for regulatory action in section 26(1)(h) of the Act. The provisions for a period of grace do not apply to a restricted licence, but in any event Mr Meadowcroft has not provided sufficient tangible evidence that would persuade me to delay making such a finding in the hope the financial position improves.

All these matters combined mean that I also find that there has been a material change as to the Operator’s fitness to the extent that I consider the requirement of Section 13B is no longer met. This also satisfies the grounds for regulatory action in section 26(1)(h) of the Act.

7. Decision

Having reached the findings of fact recorded above, I have considered the balancing exercise and have considered the positive and negative features by reference to the guidance in the Senior Traffic Commissioner’s Statutory Document Number 10.

There are few positive features that I can identify. Some changes have been made to attempt to deliver compliance, but they are belated and fall far short of what is expected. I also acknowledge that the Operator co-operated with the enforcement investigation, but this must be balanced with its failure to comply with the directions in relation to service of evidence prior to this hearing.

I balance these factors with the following negative features:

• I am concerned that the continuing issues with inspection intervals the roadworthiness of the vehicle at annual test and the absence of basic compliance systems is creating a undue risk to road safety.

• There has been Ineffective management control and insufficient systems and procedures in place to prevent operator licence compliance failings.

• There has been insufficient driver training with ineffective monitoring and disciplinary procedures in place to deliver compliance on matters such as the defect books.

• Insufficient changes have been made to ensure future compliance.

• There has been an “S” marked prohibition that was issued at MOT.

• Low average first time pass rate at MOT with multiple failure items at MOT

• The licence was granted at preliminary hearing with a clear warning about the expectation of future compliance. The Operator has not honoured promises it made at that hearing that were intended to provide reassurance that it would be compliant.

The negative features far outweigh any positive features. I consider this matter falls into the category of “serious” for the purposes of regulatory action in accordance with the starting points in Statutory Document 10.

I have gone on to consider the Priority Freight 2009/225 question, namely, “how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime?” I have no confidence that this Operator will be compliant in future. It has had several opportunities to address the issues with its compliance. The warning that was issued at the preliminary hearing in 2021 when the licence was granted has not been heeded. The Operator has also completely failed to pay any attention to the undertakings and statements of intent provided at the time. Finally, Mr Meadowcroft’s evidence today has demonstrated he remains significantly lacking in the knowledge needed to be a compliant operator.

I have then considered the Bryan Haulage 2002/217 question of whether the Operator deserves to be put out of business.

I note that this is a restricted licence where the use of the large goods vehicle supports the wider business rather than be central to it. However, I also take note of Mr Meadowcroft’s argument that without the ability to use its own large goods vehicle, the business cannot viably function. The use of smaller vehicles alone would not be practical.

I accept that the loss of the licence will have a significant (if not fatal) impact on the current business. However, my concerns about the risks to road safety that flow from the Operator’s persistent failure to effectively deliver licence compliance are such that I consider revocation of the licence to be the proportionate and necessary action that I must take.

Turning to the question of disqualification, as the operator is wholly owned and controlled by Mr Meadowcroft and Mr Porter, I consider it is appropriate to approach the issue as one for both the company and its individual directors.

I have applied a balancing exercise and the features identified above in relation to regulatory action are equally pertinent to the question of disqualification. The negative features outweigh the positives and I consider a period of disqualification is justified.

In deciding upon the length of the disqualification, I have taken account of paragraph 105 of the Senior Traffic Commissioner’s Statutory Document Number 10 which states that for an operator’s first Public Inquiry, consideration of a disqualification period of between 1 and 3 years may be appropriate.

In Mr Porter’s case I have additionally considered that he has previously been a director of a company whose operating licence was revoked for compliance failures.

I consider a disqualification of 12 months will allow the Operator and its directors to reflect on the failures that have led to the revocation of this licence and to identify the steps they need to take in order to persuade a Traffic Commissioner that they can be granted a licence in future without the risk of repetition of the issues that have led to the revocation of this licence.

I direct the licence must be revoked on the grounds set out above.

I direct that the operator is disqualified from holding or obtaining an operator’s licence for 12 months effective from the date of revocation. I make the same order in relation to Mr Meadowcroft and Mr Porter as individual directors.

I am mindful that Mr Porter has chosen not to attend today although Mr Meadowcroft assures me, he is aware of the hearing. If Mr Porter wishes to make further representations about the order to disqualify him as an individual, he should so in writing before the order takes effect. I will then consider whether a further hearing should be called to consider Mr Porter’s position as an individual director.

I defer the date that the revocation and disqualification take effect for 28 days to allow either arrangements to be made for alternative transport provision or the orderly running down of the business.

Gerallt Evans
Traffic Commissioner for the North West of England

14 November 2023