Decision

Decision for Thurrock Scaffolding Services Ltd (OF2029461)

Published 10 February 2021

IN THE EASTERN TRAFFIC AREA

THURROCK SCAFFOLDING SERVICES LTD – OF2029461

1. CONFIRMATION OF THE TRAFFIC COMMISSIONER’S DECISION

1.1 REDACTED VERSION

2. Background

Thurrock Scaffolding Services Ltd holds a Restricted Goods Vehicle Operator’s Licence authorising 6 vehicles only. The Directors are Joe Giggins and Ryan Johnson.

There is one Operating Centre at Sandy Lane Farm, Sandy Lane, Aveley, South Ockenden RM15 4XP. There is one declared contractor showing on the licensing record: SC Burrows undertaking Preventative Maintenance Inspections of vehicles at 8-weekly intervals.

The Director, Mr Johnson, is also a Director of RR Lifting Services Ltd. Its application for a Standard Operator’s Licence was refused on 27 November 2020. That application proposed using the same Operating Centre and nominated a Mr Matthews to act as the Transport Manager.

Mr Giggins previously held OK2014233, as a sole trader, with the trading name of Thurrock Scaffolding Services. That was surrendered in May 2020.

3. Hearing

The Public Inquiry was listed for today, 7 January 2020, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was present via a video link, in the form of the Directors, Mr Giggins and Mr Johnson, represented by Paul Mason of Lewis Nedas Law.

The Public Inquiry was listed at the request of the operator following correspondence from the OTC dated 15 October 2020 setting out the seriousness of the failure to meet the undertaking. That was returned by the Royal Mail on 18 November 2020 and marked ‘not called for’. As an application to change Operating Centre had been lodged on 30 July 2020, although it was not granted until 17 November 2020, I accepted the late request from the operator’s representative Mr Mason dated 9 November 2020.

4. 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)(f) – undertaking given to obtain grant of the licence

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

• 28 – disqualification of directors and operator to be considered

The operator was made the subject of directions in order that the video hearing could be effective, with evidence required to be lodged by 18 December 2020, and specifically:

• evidence of the availability of finance

• regular safety inspection records for the last 12 months

• maintenance contract(s)

• driver defect reports for the last 12 months

• forward planner

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

5. Summary of Evidence

At the time the operator made its application, it relied on a closing balance. Discretion was exercised in its favour to allow grant but only based on its undertaking (page 39) to submit to a further review of the availability of finance to support maintenance. That required, as follows:

Thurrock Scaffolding Services Ltd to provide financial evidence in the name of the Thurrock Scaffolding Services Ltd covering March, April and May 2020, to the Central Licensing Office in Leeds by no later than 30 June 2020. This must show that the operator has continued to meet the required level of available finance throughout the period by reference to an average balance, dependant on the rates applicable at that time.

No statements were provided by the deadline of 30 June 2020.

A reminder was sent to the operator on 28 July 2020 (page 40), The operator’s response of 11 July 2020 (page 42) referred to the impact of the pandemic and that it had only returned to trading since July. The statements then submitted for the period of the undertaking did not meet the required sum [REDACTED]. Additional statements for June, July and August also failed to demonstrate an average which met the required sum [REDACTED] despite the deposit of a bounce back loan on 9 June 2020. I sought to understand whether the statements now relied upon included the bounce back loan.

The Government bounce back scheme is intended to assist small and medium-sized businesses to borrow between £2,000 and up to 25% of their turnover, with a maximum loan available of £50,000. The scheme is open to applications until 31 January 2021. To be eligible a business must be based in the UK, established before 1 March 2020 and have been adversely impacted by the coronavirus. The loan was secured on the basis of turnover of the previous iteration of this business.

The Contingency Statutory Document recognises the extraordinary challenges of the coronavirus (COVID-19) pandemic. The initial version was drafted in anticipation of the impact on personnel and economic activity. It notes that existing restricted goods operators do not have facility to request a Period of Grace but, for instance, might offer an undertaking to the traffic commissioner for a financial check to be carried out in the future and on a specified date. However, that would require proactive notification in line with the obligations on the Operator’s Licence.

On 21 December 2020, the operator lodged the following evidence in support:

• A bank statement for a shared account in the name of one of the two directors and his wife.

• An account Quickreport.

• A letter from Commercial Vehicle Repairs stating that the operator has a service contract with them with a [REDACTED] credit limit.

• An unaudited Report of the Directors and Financial Statements for year ending 31 July 2020.

• A Metro Bank Statement for October 2020.

• Transaction histories for September and November 2020.

This was referred to me on the reopening of the tribunal at the start of this month. In the absence of up-to-date bank statements covering a three-month period, I gave instructions on 5 January 2021 to advise Mr Mason, as per Statutory Document No. 2, that I could not take account of a bank statement which is not in the operator’s name. The Account Quickreport and the Metro Bank Statement for one month did not appear to disclose all the relevant and required information, the funds held by Commercial Vehicle Repairs are not actually available, as per the case law. I was also unclear why only transaction histories for September and November 2020 had been supplied and why I would accept the Financial Statements for year ending 31 July 2020. I referred to section 13D and was concerned to note that maintenance records had not been received.

In response Mr Mason was able to supply the 3 months of statements, by email on 6 January 2021, but regrettably the average was not sufficient to meet the required sum of £11,600, [REDACTED].

Mr Mason also confirmed that: “Notwithstanding the contents of your letter of 3 December, the operator’s transport consultant advised them that they needed only to provide finance information to you, rather than maintenance records, DDRs and other information, as a result of which I suspect you have had nothing.” I indicated that the operator should supply what it could as I was not minded to adjourn a case, for a failure to comply with clear Directions. In evidence it emerged that the consultant, the same Mr Matthews as named above, was not given the full story, or shown the call up letter, which contained explicit Directions. The Directors admitted that they had left it too late after paying limited attention to the documentation supplied to them.

Documents were then emailed on the day of the hearing when other matters were in the list. I had opportunity to consider:

• Preventative Maintenance Inspection for FN63 DZH dated 20 August 2020, but one page only.

• Preventative Maintenance Inspection for FN63 DZH dated 12 June 2020, which recorded the replacement of wiper blades, near-side markers damaged but no action taken, uneven tyre wear with other maintenance items to monitor including second axle brake pads worn. The vehicle was sufficiently laden when brake efficiency was tested but there were considerable imbalances on the off side of the second axle.

• Preventative Maintenance Inspection for YT15 GGV dated 20 November 2020, which recorded that rear and nearside rear markers have been replaced, but no action on the nearside rear run bar. The vehicle was sufficiently laden on the rolling road brake test but recorded notable imbalances on the off side of axle 2.

• Preventative Maintenance Inspection for YT15 GGV dated 8 April 2020, which noted that the 2-year tachograph calibration had expired – no action recorded, off-side panel insecure, which was replaced, near-side first axle tyre with uneven wear but all at 5mm or above.

• Preventative Maintenance Inspection for YJ11 0SN dated 2 February 2020, but one page only.

• I was provided with various roller brake print outs, the majority were at sufficient weight to provide meaningful readings although others were below the 65% guidance level but there were notable in-balances on the off-side, mostly on the second axle but occasionally across both.

• No driver defect reports were disclosed, which might explain the presence of driver detectable defects at a Preventative Maintenance Inspection.

• I also noted examples of drivers’ hours infringement reporting from October 2020 and into the start of this month. I noted a string of WTD infringements from one driver (Dowding). The missing mileage reports imply repeated shunting of some vehicles but there appears to be little improvement in the picture suggested by these reports.

In evidence I heard that Mr Giggins had experienced serious health issues during the relevant period. I am pleased to note that he is now clear of that diagnosis. This resulted in all the pressures being placed on Mr Johnson. It was Mr Giggins who was said to concentrate on the transport, although that was not evident in the preparation for the hearing or particular knowledge demonstrated at the Public Inquiry. On Mr Johnson’s own admission, he did not pay proper attention to compliance with the licence requirements. None of the issues with compliance were notified to the Office of the Traffic Commissioner. Both Directors were adamant in their need for training and instruction. I heard that the same consultant had been engaged to carry out analysis of drivers’ hours compliance. In the absence of proper management of drivers and the contractor, it is difficult to see how compliance would be achieved. There are no devoted drivers, all of them are mainly engaged as scaffolding contractors, but there must be sufficient control to deliver compliance with the licence requirements.

6. Determination

I am satisfied to the civil standard of proof that I can make an adverse finding under section 26(1)(f) of the Goods Vehicle (Licensing of Operators) Act 1995 in respect of the undertaking given to obtain grant of the licence. In addition, I must record my concerns at the lack of compliance, regarding the management of drivers’ hours, driver defect reporting, maintenance including records to show that vehicles are operated in a fit and roadworthy condition, driver defect reporting, inspections within the declared intervals.

I have given credit for the operator’s efforts to ensure that there is laden roller brake testing at every Preventative Maintenance Inspections. The Contingency Statutory Document allows me to take account of where the pandemic restrictions have had a negative impact on the operator’s ability to comply, although no assessment would view it as having been effectively managed based on risk analysis. The approach to the Public Inquiry has been fairly dismal. Nevertheless, this was the first attendance at a hearing.

In 2013/007 Redsky Wholesalers Ltd, the Upper Tribunal confirmed that the question posed in 2009/225 Priority Freight, might be applied to restricted operators. I therefore proceeded to consider: how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime? I was offered the following undertakings for prompt remedial action:

• Within 7 days of the Public Inquiry the operator will confirm in writing that all drivers and the Directors have attended a toolbox talk with the consultant, Tim Matthews, to cover the driver walk round, and by reference to the DVSA video: “Check it Out” available online. That letter is to confirm the content and all attendees.

• The operator will arrange an independent audit to be carried out by the RHA, Logistics UK or other suitable independent body. The audit will assess the systems for complying with maintenance and drivers’ hours requirements, and the effectiveness with which those systems are implemented. The audit should cover at least the applicable elements in the accompanying pro-forma, supplied by the Office of the Traffic Commissioner. A copy of the audit report, together with the operator’s detailed proposals for implementing the report’s recommendations, must be sent to the Office of the Traffic Commissioner in Cambridge within 31 days of the Public Inquiry. The operator will arrange for a further audit to confirm that all matters of concern have been addressed and that there is compliance with the licence requirements, four months from the date of the Public Inquiry.

• Directors will attend (remotely) a one-day operator licence management course, run by a trade association (Logistics UK/RHA/BAR/CPT), a professional body (IoTA/CILT/SOE/IRTE), a JAUPT accredited training centre or an exam centre approved by an accredited body to offer the transport manager CPC qualification in goods transport and a copy of the certificate of attendance will be sent to the Office of the Traffic Commissioner in Cambridge within 1 month of the date of Public Inquiry.

The operator has severely undermined the trust which was placed in it and its Directors. However, if those actions are completed and the Directors live up to the commitments given during the hearing, then compliance should be achieved, but there is no doubt that fitness is severely tarnished. I refer to the Upper Tribunal decision in 2019/025 John Stuart Strachan t/a Strachan Haulage: “one of the aims of the regime is deterrence, both for the appellant and for operators as a whole, who might be tempted to flout the system”. That deterrent action is required here to make it plain to this operator and others that there can be no repeat of these shortcomings. I took account of the current work requirements and the minimum number of vehicles required. The licence was therefore curtailed to 4 vehicles with effect from 23:45 from 7 January 2021.

Richard Turfitt

Traffic Commissioner

11 January 2021