Decision

Decision for Wise Scaffold Services Ltd (OF1130313)

Published 8 October 2020

In the Eastern Traffic Area.

Confirmation of the Traffic Commissioner’s decision.

1. Background

Wise Scaffold Services Ltd holds a Restricted Goods Vehicle Operator’s Licence authorising 3 vehicles only. The Director is Grace Provencal-Wise, although Mr Wise also appears to have a role in managing the transport operation.

The Operating Centre is at Unit 16A, Shangri-La, Todds Green, Stevenage SG1 2JE. The declared maintenance contractor on the licensing record is Foulgers CVS (Commercial Vehicle Services), undertaking Preventative Maintenance Inspections of vehicles at 8 weekly intervals, to which I will return.

The operator received a formal warning in 2016, as a result of financial issues. Authority was increased to three vehicles in May 2016. A maintenance investigation was conducted on 3 April 2018 due to an S marked prohibition being issued. There was no evidence of defects being rectified, brake results were not consistently recorded, declarations of roadworthiness were not signed and inspection frequencies were being stretched from 6 weeks to 12 weeks, there were weaknesses in driver reporting. The operator was called to a Public Inquiry on 4 October 2018, when the Operator’s Licence was curtailed by 1 vehicle for the period of 7 days. Its fitness was found to be tarnished. A variation application was refused except for a change in Operating Centre. The operator gave undertakings to spot check driver walk round checks with training for all drivers, to implement rolling road brake tests at every Preventative Maintenance Inspection, and to have an audit by 4 April 2019.

2. Hearing

This Public Inquiry follows a Preliminary Hearing before the Deputy Traffic Commissioner on 19 February 2020. She was concerned that the operator had not sufficiently managed Driver Defect Reporting with gate checks undertaken twice weekly of 2 drivers. An audit completed in January 2019 recorded assurances given by a transport consultant. Driver defect checks had not occurred due to the consultant’s unavailability and attendance every 4 to 6 weeks. The DTC noted driver detectable defects on the Preventative Maintenance Inspections and that drivers had been instructed not to record some defects.

The DTC determined that a Public Inquiry was required. Due to the pandemic that has been delayed to today, 22 July 2020, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was present in the form of Mrs Provencal-Wise, accompanied by Mr Wise and Mr Ready, represented by Ms Carolyn Evans, solicitor, of CE Transport Law.

3. 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:

• section 26(1)(b) changes in the maintenance and safety inspection arrangement
• section 26(1)(c)(iii) prohibition notices (page 26)
• section 26(1)(f) undertakings that vehicles would be kept fit and serviceable and that drivers would report promptly any defects in writing, and to spot check drivers
• section 26(1)(h) material change in fitness and finance.

Finance and maintenance records were required to be lodged by 14 July 2020. The operator failed to comply with those Directions. Office of the Traffic Commissioner chased the Director on 17 July 2020. The Director claimed not to have received an email. The documents were eventually received on 20 July 2020.

4. Summary of Evidence

An unannounced maintenance investigation was commenced by DVSA on 30 October 2019, following an application seeking to increase authority. The Operator did not request the attendance of the Examiner at this Public Inquiry. The findings were acknowledged in an email from the Director dated 11 November 2019, in which she indicated that the application would not be pursued.

The Vehicle Examiner, Mr Thomas recorded the cooperation of the Director. In the course of the investigation there was an inspection of MX10ACZ. He recorded a number of issues with compliance:

• The operator had not notified OTC that ‘Dass Commercial’ was no longer being used as a maintenance provider. The operator described this as an oversight.
• The drivers defect reports showed numerous errors with boxes ticked, such as ‘disabled access’ which did not apply and with dates missing on others
• Rectification work on the driver defect reports was not being signed off
• MX10ACZ – was issued with an immediate prohibition notice on 1 November 2019 for an inoperative driver’s seat belt.

The Examiner noted that there was general adherence to the undertakings with roller brake testing at every PMI. He found the maintenance records to be readily available and filed correctly. He retained concerns about the quality of the drivers walk round checks. He referred to the prohibition issued for a defective seat belt.

The operator was advised to seek additional driver training. It was noted that a transport consultant was retained.

The operator responded to the shortcomings. The Examiner identified that:

• Drivers hand in their daily walkaround sheets at the end of the working day. The forms are not reviewed until the following morning and then signed off.
• The contractor was called out to rectify the prohibited defect as soon as the defect was identified.
• Mr Wise had completed a walkaround check of the same vehicle and found ‘nil’ defects and had driven the vehicle on 31 October 2019.
• It is proposed that Mr Wise completes random walk round checks before vehicles leave the yard.
• Mr and Mrs Proencal-Wise met with each driver and reiterated the importance of the DDRS procedure.
• DVSA guidance on daily walk around checks has been provided to every driver. Drivers have been required to sign for receipt of the operator’ driver walk round procedure.
• The operator proposed to continue with its cross-referencing of PMIs with driver defect reports.

The Deputy Traffic Commissioner was not content with the arrangements when she reviewed them at the Preliminary Hearing.

I therefore carried out my own examination of the records. This examination was limited due to the date of receipt. I did receive useful written representations from Ms Evans on 21 July 2020. The accompanying bundle included emails dating from February to June 2020 addressed to Foulgers, a written contract with Hadley James Ltd dated 1 July 2020, the Foulgers contract dated 24 June 2019, a written contract with Gilhooly Commercials Ltd dated 10 July 2020, examples of the operator’s safety inspection review documents completed by the Director for AY08 GKC on 1 May 2020 and AY61 AVR on 9 July 2020 (1st use), a consultancy contract with Coady Fleet Risk Management, accompanying CV for Martin Ready and his 12 month ‘compliance plan’, the contract for ‘Checkedsafe’ app and evidence of relevant toolbox talk on 15 July 2020. In evidence Mr Ready suggested that there might be scope to adopt compatible systems which draw together both driver defect reporting and time recording, which will further assist in addressing WTD compliance.

In the course of the hearing I made reference to the records for MX10 ACZ and the roller brake tests. There was no print-out evident until I requested them during the hearing. The operator had to make an additional request to obtain them from the contractor. I could see successful RBT for YJ59 DEX for 19 February, 8 April, 12 May, 24 June 2020 but the test on 8 January was under-laden. On AK08 GKC I noted only two percentage readings on 14 November 2019 but three readings for tests on 24 March and 12 June 2020, although neither appeared to reach the required readings. On MX10 ACZ there were successful tests on 5 May and 10 June 2020. It is important that the operator checks for the print-out, especially after uneven brake pads have been rectified. Records should record whether the advised 65% of the GVW was achieved. On 30 April 2020, there is no record of the secondary braking device performance.

There are three percentages recorded on 10 June 2020. Both of those inspections were the subject of written reviews by the Director. I have noted recurring issues with lamps. There were driver defect reports 18 March 2020 and 4 December 2019. The drivers dispute the driver detectable defects noted on the inspections. Reference is made to the new driver app. The Director has astutely identified that tyre tread appears to grow as at 10 June 2020. The inspection of YJ54 DBX only shows two percentage readings for brake performance on 9 April 2020 and 12 May 2020. The latter was reviewed on the same date. The absence of records and print out was not identified there or in the email with the contractor on 11 May 2020. Inspections on 13 July 2020 and 24 June 2020 show three percentage readings but no print-out.

It was accepted that there are long-standing issues with the engagement of drivers in the reporting of defects. I noted the new electronic system, references to the ongoing DCPC programme and the recent departure of a driver who failed to engage. The drivers are scaffolders and therefore retained on service contracts, but I was satisfied that Mrs Provencal-Wise has equivalent processes for suspension etc, which should act as a spur to compliance. I also observed her willingness to manage performance in areas such as WTD compliance.

Ms Davis clearly had sight of the required audit at the Preliminary Hearing. It confirms that gate checks involved only 2 drivers, twice weekly. There was a change in maintenance contractor, and I understand that there may be further changes. I did not preside at the Preliminary Hearing when Mr Foulger attended. I have noted the concerns expressed in the email traffic to which I have referred and noted Mrs Provencal-Wise’s efforts to manage compliance. Roller brake checks have been conducted but I have been forced to make further comment in that regard. I am told that the new contractors have excellent facilities and will transfer in early September 2020. The operator works towards 6 weekly intervals but remains with the declaration of 8 weekly inspections. I noted the comments regarding the age of the vehicles.

5. Determination

I am satisfied to the civil standard that there have been breaches of the Operator Licence requirements such that support adverse findings under sections 26(1)(b), 26(1)(c)(iii) and 26(1)(f) undertakings that vehicles would be kept fit and serviceable and that drivers would report promptly any defects in writing, and to spot check all drivers. Fitness is tarnished by those failings.

The representations commence with a suggestion that the operator will submit to a further compliance audit if I issue a warning. A public Inquiry is not a matter of negotiation, compliance certainly is not. It is now established law that the approach in standard licences might be applied to a restricted operation. I therefore put the initial question in 2009/225 Priority Freight: how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime? The Upper Tribunal has repeatedly explained the importance of action in that regard: promises are easily made, perhaps all the more so in response to the pressures of a Public Inquiry. What matters is whether those promises will be kept. In the present case the Appellant company was entitled to rely on that old saying that ‘actions speak louder than words’.

There should be no doubt in the minds of operators as to what is required under the Operator’s Licence. As the Tribunal remarked in 2006/277 Fenlon: Traffic Commissioners must be able to trust operators to comply with all the relevant laws, rules and regulations because it would be a physical and financial impossibility to police every aspect of the licensing system all day and every day. In addition operators must be able to trust other operators to observe the relevant laws, rules and regulations. If trust between operators breaks down and some operators believe that others are obtaining an unfair commercial advantage by ignoring laws, rules or regulations then standards will inevitably slip and the public will suffer. The representations refer to undertakings being ‘broadly complied with’. There is no question of degree in the duties but there is proportionality in my decision making.

I have noted the changes implemented including documentation relating to training of drivers and that Mr and Mrs Wise attended OLAT and a TM CPC refresher. The representations refer to the annual test passes since that last Public Inquiry. I have recorded the safety inspection review documents which were enclosed. Mr Wise takes vehicles to the contractor and there is scope for increased scrutiny in person, when a driver type defect is identified in future.

AY08 GKC has now been removed, replaced by AY61 AUR. MX10 ACZ will be replaced at the end of September 2020 with a 2017 vehicle. Vehicles YJ59 DBX and AY61 AUR will then be replaced at yearly intervals by the end of 2022. Intervention against this Operator’s Licence will impact on the finances required to implement those changes. In the meantime, the Guide to Maintaining Roadworthiness suggests that vehicles of that age should be inspected at 6 weekly intervals. The operator has accepted this will be the inspection interval and I was able to weigh that into the balance. I have amended the undertaking for spot checks of driver walk rounds to two a week, to be recorded as part of the maintenance record. Mr Ready has suggested that there may be an additional app, which will assist in this.

This is not the Operator’s first Public Inquiry but the delay resulting from the pandemic has afforded opportunity to take further action after the concerns expressed by Ms Davis. I have taken account of the consultancy arrangements, but it is Mrs Provencal-Wise who must ensure compliance. Intervention is required, in order to ensure that standards are attained and sustained. I have seen emails illustrating the Director’s level of engagement there. On that basis I would agree with Ms Evans’s assessment that the case falls within the ‘Moderate’ starting point for intervention. I am told that curtailment would be a more severe penalty as it would prevent the operator from meeting contractual obligations. I explored this in more detail, in the course of the hearing. I heard from Mr Wise about the upcoming commitments: some are not seasonal, but the upcoming months are particularly busy. As with most scaffold operations, the vehicles are not in constant use at each job, but 20 people rely on the transport for their employment.

The Operator’s Licence will be curtailed by one vehicle for one week, commencing at 23:45 on 9 August 2020. I make an order under section 26(6) preventing the use of vehicle MX10 ACV on any other regulated operation during that period. Fitness remains tarnished but this level of intervention represents the level of progress made to date.

RT/TC/22/7/20