Decision

Written decision for Leigh Lawson (OK1147921) and Able Scaffolding (UK) Limited (OK2034252) - under consideration

Published 27 November 2020

In the South Eastern & Metropolitan Traffic Area.

Goods Vehicles (Licensing of Operators) Act 1995.

Traffic Commissioner’s Written Decision.

1. Decision

Pursuant to adverse findings under Section 26(1)(c)(iii), (e), (f) and (h) of the Goods Vehicle (Licensing of Operators) Act 1995, the Operator no longer meets the requirements of Section 13B, 13C and 13D of the said Act. Accordingly, Licence OK1147921 is revoked from 23.45 on Friday 20 November 2020.

The application by Able Scaffolding (UK) Limited is refused as I remain to be satisfied that it meets the criteria in Section 13B, 13C and 13D of the 1995 Act.

Leigh James Lawson is disqualified from holding or obtaining an Operator Licence or being involved in the management, administration or control of any entity that hold or obtains an Operator Licence in Great Britain to full the extent provided by Section 28 of the 1995 Act for an indeterminate period from 23.45 on Friday 20 November 2020.

2. Background

Leigh James Lawson (‘Mr Lawson’) has held Licence OK1147921 – Leigh Lawson T/A Lawson Skip Hire since 9 November 2016. The Restricted Licence authorised the use of 3 vehicles and 0 trailers from an operating centre in Erith.

Leigh Lawson attended a DVSA New Operator Seminar in London on 31 January 2017. Mr Lawson is also associated with previous Licences.

2.1 OK1093263 – Able Scaffolding (UK) Ltd

A Restricted licence granted on 21 January 2010. Directors shown on the licence as Leigh James Lawson and Mark David Lawson, however a check of Companies House shows that Mark Lawson has never been appointed as a director although he is a shareholder. On 5 February 2020 vehicle SN57 GYZ was stopped by DVSA and it was found that the vehicle unit had not been downloaded since 24 May 2018 and the vehicle had been driven without a driver card inserted since 21 January 2020. The vehicle unit had not been locked into the company card and it was noted that the vehicle had been specified on the licence of OK1093263 since 18 November 2019. The traffic examiner attempted to carry a follow up investigation with the operator but received a letter from Leigh Lawson stating that the company had disposed of the HGVs two years previously and did not have any paperwork. A letter was sent to the operator on 16 April 2020 advising that due to the issues raised by the traffic examiner, I was minded to revoke the licence. An online application was made on 6 May 2020 to surrender the licence. I refused the application to surrender the licence and revoked it on 21 May 2020.

2.2 OK0231657 – Raymond Lawson & Leigh Lawson T/A Able Scaffolding

A Restricted licence granted on 3 February 2001. The licence terminated on 31 January 2011 as the operator failed to pay the licence continuation fee.

3. Current issues

DVSA carried out a desk based assessment on OK1147921 because of the concerns raised by the stop of vehicle SN57 GYZ on 5 February 2020. The assessment (dated 3 July 2020) highlights the following shortcomings: -

3.1 Maintenance

• Driver defects found at PMI.
• Driver daily vehicle walk round defect record sheets (‘DDR’) – repairs not documented.
• No evidence of auditing of the DDR system or the walk round checks.
• Preventative Maintenance Inspection (PMI’) intervals exceeded.
• Only one handwritten brake test result supplied (no description of type of test, or whether it was laden)
• No evidence of a wheel retorque procedure in place.
• No evidence of a Vehicle Off Rodd procedure in place.
• No evidence of any auditing of the PMIs.
• No evidence of any forward planning.
• No evidence of any driver training.
• No evidence of any investigations following the issue of prohibitions.  

3.2 Drivers Hours

• No evidence of driving licence checks.
• No systems in place for monitoring or supervision of drivers’ hours.
• No evidence of any third party analysis and downloading of drivers’ hours.
• One incident of exceeding 4.5 hrs driving.
• Three incidents of driving without a card inserted.
• No systems in place for monitoring or supervision of the Working Time Directive.
• No systems in place for ensuring load security or prevention of overloading.

In a letter to DVSA dated 17 June 2020 Mr Lawson states that he cannot provide any further documents as he was not in control of the day to day running of the ‘company’ due to health reasons. He ‘took back control’ in late February 2020. The ‘person’ who was left in control has now left. Mr Lawson emailed DVSA on 26 July 2020 copies generic driver handbook documents but did not set out how he intended to improve his compliance systems.

Able Scaffolding (UK) Ltd (‘the Applicant’) applied for a Restricted licence online on 18 June 2020 for 3 vehicles at the same operating centre as Mr Lawson’s sole trader Licence. Mr Lawson is the sole director, and he remains joint shareholder with Mark Lawson. On the GV79 application Mr Lawson has declared his sole trader licence OK1147921 and confirms that the licence will not be surrendered if the application is granted. Mr Lawson failed to declare the revocation of Able Scaffolding (UK) Ltd, OK1093263, or the previous licence held by Raymond Lawson & Leigh Lawson T/A Able Scaffolding, OK0231657. An interim was requested but I refused because of the history, which was not declared in full. In a letter dated 3 July 2020 Mr Lawson states that he believed the licence, OK1093263, had been surrendered. He also states that the licence had not been run properly in his absence and that he had now taken back control. The failure to declare the partnership licence was an ‘oversight’.

By letter dated 18 July 2020 Mr Lawson confirms that the company do not currently have any vehicles and the large payment from Briden Ltd (4 May 2020) is in respect of work carried out. He confirms that the Applicant company had ceased trading whilst he had health problems, but the company had now won a contract that would require a large vehicle. He stated an intention to seek advice from an expert to assist with administrative paperwork. A subsequent registered keeper check by my office found that one of the two vehicles specified on the licence OK1093263, at the time of the revocation on 21 May 2020, DL51 ENA, still appears to be in the possession of Able Scaffolding (UK) Ltd.

After considering the matters above, I decided to consider the existing Licence and the application at a public inquiry.   ## Hearing

A call-in letter was sent to both parties on 12 October 2020 notifying the Public Inquiry would take place at my Tribunal Room in Eastbourne commencing at 10am on Thursday 19 November 2020. Nobody attended in person or via Microsoft Teams.

3.3 Documents & Evidence

Prior to completing this written decision, I have reviewed the following:

1. Public Inquiry brief
2. E mail exchanges between Mr Lawson and my Public Inquiry caseworker.
3. Publicly available information on Companies House.
4. South Bucks District Council and another V Porter(FC) (2004) UKHL33, English v Emery Reimbold & Strick Ltd [2002 EWCA Civ 605 and Bradley Fold Travel Limited & Peter Wright v Secretary of State for Transport [2010] EWCA Civ 695 in relation to written decisions generally.
5. Upper Tribunal Decisions and other guidance I consider relevant to this determination as listed elsewhere in this Decision. 
6. The Senior Traffic Commissioner’s Statutory Guidance and Statutory Directions current versions (SGSD).

3.4 Preliminary matters.

Mr Lawson’s call in letter required statutory maintenance records; other evidence of his compliance systems and specific evidence in relation to financial resources by no later than 12 November 2020. The Applicant’s call-in letter required specific evidence to demonstrate financial resources by the same deadline. That letter also included the following with the deadline of no later than 12 November 2020:

Start to collect your own evidence to allow you to set out your case on the day. This might include at least the following documents:

1. Evidence of how the company have met its transport needs since the previous licence, OK1093263, was revoked on 21 May 2020;
2. Evidence that vehicle DL51 ENA has not been in use since the revocation of OK1093263;
3. Details of the proposed vehicle maintenance system, including sample safety inspection records, the daily defect reporting system and the maintenance contract;
4. Details of how you will comply with the laws regarding drivers hours;
5. Anything else which you think will help show you will be a compliant operator or are taking steps to address the failings identified.

On Thursday 12 November 2020 Mr Lawson sent an e mail to say health issues prevented him from attending today and in any event ‘we have ceased trading and no longer require the operators licence for both companies’. Shortly after my clerk responded asking if he was requesting an adjournment (reminding him this would need to be supported by medical evidence) or to surrender the Licence and if he was asking to withdraw the new application. That afternoon he confirmed that he wanted to surrender the sole trader Licence and withdraw the application for a new Licence for his limited company.

On 16 November 2020 at 09:03, Mr Lawson was notified of the following:

T C DECISION:

In light of the issues to be considered at PI, I am not prepared to accept this last minute request. The hearing will proceed and as part of the hearing I will consider the request for surrender and withdrawal. If Mr Lawson is too unwell to travel to a hearing then medical evidence is necessary as per stat doc 9. If such evidence is available then Mr Lawson should make arrangements to attend via Microsoft Teams - criteria attached.

There are then further e mail exchanges, including Mr Lawson reiterating ‘…we have no wish to use HGV vehicles in our business going forward’ and ‘…we are no longer needing the operators licence…’.

On 18 November 2020 at 15:03 Mr Lawson was notified of the following decision:

T C DECISION:

Mr Lawson has not provided any of the documentation required in advance of the hearing; any reasons for self-isolation or sent an NHS isolation certificate. The alternative is a virtual hearing but Mr Lawson says that is not possible. TCs do not do telephone hearings. I understand he wants to surrender the sole trader Licence and withdraw the new application. As we stand Mr Lawson leaves me little option other than decide on the papers tomorrow.

3.5 OK1147921

Mr Lawson admitted in writing that he relinquished control of his business interests for a period in 2019 through to February 2020 (page 58 of the PI bundle). Mr Lawson failed to notify my office of this material change. I am entitled to know whom I am regulating. For all I know control could have been relinquished to a disqualified individual. The desk based assessment identified systemic failings across the licence undertakings (see para 7 above and pages 46 – 67 of the hearing bundle). By failing to produce the statutory records and other evidence required by the call in letter (page 10 of the PI bundle), Mr Lawson has prevented me from making an informed view of his compliance since the desk based assessment. Mr Lawson has sought to circumvent the requirement by offering to surrender the Licence but that is not acceptable. That evidence is relevant to whether a surrender is appropriate. Likewise, Mr Lawson is fully aware from the revocation of OK1093263 and the caseworker emails about today that a surrender is far from a formality. The most recent evidence of compliance is the desk based assessment and that tells me Mr Lawson poses a significant risk to road safety e.g no evidence of driver licence checks, driver reportable items on PMIs, no retorque system after wheels have been removed and no evidence of proper brake testing.

The desk based assessment happened at my request on the sole trader Licence because DVSA was unable to do a follow up with the Applicant on its previous Licence after the adverse roadside encounter on 5 February 2020. On 26 March 2020 Mr Lawson refers again to ill health and says the business has only been using 3.5t for 2 years, when all HGVs were sold (page 102 of the PI bundle). In the absence of oral evidence, my assessment remains as per decision to revoke that Licence, namely that Mr Lawson is not telling the truth. On 5 February 2020 it was Mr Leigh Lawson driving SN57GYZ, a 19 tonne scaffold lorry fully laden on his way to a job in Sidcup (TE section 9 witness statement pages 97 – 101 of the PI bundle). The download showed the vehicle regularly in use, including also being driven by Mark Lawson and sometimes with no card inserted at all. Further, as of 12 October 2020 the Applicant remained the registered keeper of DL51ENA (7.5t), a vehicle specified on OK1093263 from January 2015 until revocation.

Save for no previous Public Inquiry, attendance at a New Operator Seminar in 2017 and Mr Lawson producing some documentation and data to DVSA in July 2020, I can find no other positives.

4. Conclusion

In undertaking my balancing exercise, I remind myself of the helpful guidance from the Upper Tribunal in the case of 2006/277 Fenlon:

It has been said on many occasions that trust is one of the foundation stones of operator licensing. 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.

In my judgement there is cogent evidence that Mr Lawson cannot be trusted to tell the truth, as per paragraphs 19 and 20 above. Mr Lawson tried to circumvent the DVSA investigation into Able Scaffolding UK Limited in April 2020. Mr Lawson has failed to produce records and finance evidence for the hearing today. If Mr Lawson wanted an adjournment, he knew what to do but did not. In my view the evidence sways to the fact that Mr Lawson would not attend even if I delay the case. Mr Lawson may or may not have relinquished control of his business interests for a period, but the net result is if he did that is unacceptable. If he did not, then he has told another untruth. Without oral evidence I am unable to form a definitive view. On balance I do believe there is another unnamed individual exercising some influence as Mr Lawson often refers to ‘we’. There are examples in paragraph 17 above.

Taking all the above into account, it is not appropriate to accept a surrender. The findings are such that the Licence must be revoked as the failings strike at the heart of the operator licensing system – road safety and fair competition. For the same reason, I refuse the new application. Mr Lawson is the sole director and his conduct over a significant period conflicts with director duties under the Companies Act 2006 as well as those of an Operator. Accordingly, I have reached the decision set out in paragraphs 1 and 2 above.

4.1 Disqualification:

The STC Statutory Document No. 10 also includes a helpful summary on the case law on disqualification, including:

The case law indicates a general principle that at the time the disqualification order is made that the operator cannot be trusted to comply with the regulatory regime and that the objectives of the system, the protection of the public and fairness to other operators, requires that the operator be disqualified (see 2009/011 Katherine Oliver and J W Swan & Partners).

In certain circumstances a traffic commissioner may order that an individual is not only disqualified from holding or obtaining an operator’s licence but also from being involved in management, administration or control of the transport operations of an entity that holds or obtain such a Licence in Great Britain (see 2015/078 Black Velvet Travel Ltd, Western Greyhound Ltd and Michael John Bishop). The Upper Tribunal had regard to a decision of the Transport Tribunal and in particular that a traffic commissioner must:

ensure that the purpose of an order is not undermined or defeated by a disqualified person becoming involved with the management of another operator’s licence (see 2005/457 Leslie John Ings trading as Ings Transport.

It is clear that each case must be considered on its own merits (see 2009/011 Katherine Oliver and J W Swan & Partners, paragraph 12) and relies on the traffic commissioner to assess what is necessary to balance the objectives of the legislation including the protection of the public and ensuring fairness to the legitimate licensed transport industry against the potentially significant infringement of the licence holder’s or individual’s rights.

In T/2010/29 David Finch Haulage the then Transport Tribunal said:

The principles that derive from these and other cases on the point can be simply stated. The imposition of a period of disqualification following revocation is not a step to be taken routinely, but nor is it a step to be shirked if the circumstances render disqualification necessary in pursuit of the objectives of the operator licensing system. Although no additional feature is required over and above the grounds leading up to revocation, an operator is entitled to know why the circumstances of the case are such as to make a period of disqualification necessary.

Mr Lawson’s dealings with DVSA and my office has been manipulative to a significant degree. He has not told the truth and failed to provide evidence when it suits him, to avoid scrutiny by the enforcement agency and the Regulator. To succeed operator licensing requires honest and transparent dealings. The Traffic Commissioners’ role is to maintain standards for the benefit of all Operators. The hard-working legitimate industries reliant on an Operator’s Licence are entitled to be protected from Mr Lawson and those like him. Other road users and pedestrians are entitled to be protected from Mr Lawson and those like him. I have not heard from Mr Lawson on disqualification and therefore it is not possible to set a specific period. If Mr Lawson wants to return to operator licensing, then he will have to apply for the disqualification to be lifted. Any such application may be called to a hearing to determine. Accordingly, I have reached the decision set out in paragraph 3 above.

Miss Sarah Bell

Traffic Commissioner

Written decision: 19 November 2020