Decision for Concept Scaffolding Services Ltd (OF2035429)
Written confirmation of the decision of the Traffic Commissioner for the East of England for Concept Scaffolding Services Ltd and driver Karl Takkou
IN THE EASTERN TRAFFIC AREA
CONCEPT SCAFFOLDING SERVICES LTD – OF2035429
AND DRIVER: KARL TAKKOU
CONFIRMATION OF THE TRAFFIC COMMISSIONER’S DECISION
Background
Concept Scaffolding Services Ltd holds a Restricted Goods Vehicle Operator’s Licence authorising 2 vehicles only. The Directors are Andrew Erskine and Karl Takkou.
There is one Operating Centre at “Hardstanding”, Mere Farm Business Complex, Red House Lane, Hannington, Northampton NN6 9FP. Preventative Maintenance Inspections are said to be carried out by Northern Commercials and Calmac Tyres Ltd at 6-weekly intervals. It was established during the hearing that Northern Commercials had not been used for in scope vehicles for a period of nearly 3 years and was therefore removed from the licence at the application of the operator.
Authority to operate was granted from 8 September 2020 but no vehicles were specified until 27 and 28 September 2024.
Hearing
The Public Inquiry was listed for today, 6 February 2025, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The company was present in the form of the Directors, Andrew Erskine and Karl Takkou, accompanied by Mr Laver of Smarter Transport Solutions, and represented by Ms Catherine Gilder, solicitor of CE Transport Law.
Issues
The public inquiry was called at the request of the operators and following notice that I was considering grounds to intervene in respect of this licence and specifically by reference to the following sections of the Goods Vehicle (Licensing of Operators) Act:
• 26(1)(b) – conditions on licence to notify changes, in this case relating to notification of matters going to Director fitness.
• 26(1)(ca) – fixed penalties.
• 26(1)(e) – statements to abide by conditions on the licence.
• 26(1)(f) – undertakings (drivers’ hours and tachographs).
• 26(1)(h) – material change: fitness and the availability of finance.
• 28 – Disqualification.
Mr Takkou was also called to a conjoined Driver Conduct Hearing to consider whether he should be permitted to continue to rely on his vocational driving entitlement.
The operator was directed to lodge evidence in support by 23 January 2025, including financial and other compliance documentation; specifically, driver management including evidence (raw tachograph data for RX07 GPE and WP63 DPF, driver licence checks, driver infringement reports, vehicle unit download / missing mileage reports, evidence of professional development and disciplinary action) covering the preceding 3 months.
Summary of Evidence
The statement of the Traffic Examiner, Kyle Lewis, of 20 September 2024 (pages 41 to 42) details how, on 4 September 2024, Karl Takkou was stopped whilst driving RX07 GPE. The DVSA Examiner found that Mr Takkou had failed to insert his driver digital tachograph card. He confirmed that he knew he should have been using his card to record his duties but had left his card in the other vehicle. No operator licence disc despite the vehicle having been in the operator’s possession for a few months. The vehicle unit had not been downloaded for 2679 calendar days and had not been locked or downloaded by the company. During the preceding 28-day period, no driver card had been inserted into the vehicle unit.
It was said that Mr Takkou declined to be interviewed and refused to sign the caution. A £300 Fixed Penalty Notice was issued for failing to use a tachograph record sheet. A Prohibition Notice was also issued, and the vehicle was immobilised until sufficient weekly rest had been taken by Mr Takkou. The Fixed Penalty was paid the following day. In evidence, I heard that Mr Takkou had simply accepted the Fixed Penalty Notice and it was suggested that there was then no need to be interviewed.
Traffic Examiner, Darren Lewis undertook an operator visit on 4 October 2024 and completed a report (pages 43 to 65). The assessment was recorded as unsatisfactory with almost all systems requiring significant improvement. It was suggested that the operator had not received an invitation to attend a DVSA organised New Operator Seminar, but the Directors failed to equip themselves to manage the transport operation. The operator had sought assistance in completing the application form but had not apparently sought guidance to develop systems for drivers’ hours, tachograph or Working Time compliance.
The operator had recently engaged the services of Laurence Laver, a consultant of Smarter Transport Solutions to assist in improving its systems. Mr Lewis was advised of the systems, which the operator intended to adopt. It was suggested that Karl Takkou might assume responsibility for monitoring these systems going forward, with assistance from Mr Laver. He was due to attend a form of awareness training. Mr Lewis advised both directors to attend an Operator Licence Awareness Course run by an accredited body.
Mr Lewis completed an analysis and established that a specified vehicle had been used on Saturday, 14 September 2024 for a period of 2 hours and 16 minutes driving, covering 132 km, with no card inserted. This was attributed to Andrew Erskine. Mr. Erskine apparently offered the explanation that he had lost his driver card. However, he failed to make printouts before/after the journey as required. He has now been instructed on the requirements and applied for a new card. As a result, on a further occasion on where Mr Erskine drove without a card, appropriate printouts and endorsements were available.
Mr Lewis was required to undertake a 90-day vehicle unit download of both vehicles, as the operator was unable to provide records for the period (as the units were not locked in until 2 and 4 October 2024). Mr. Erskine’s new card was also yet to arrive from DVLA. However, Mr Lewis found no significant drivers’ hours infringements. Advice was required in respect of Working Time periods (attributed to being away from the vehicle on other work). He noted infringements for daily rest were attributed to the driver leaving the card in vehicle overnight on ‘other work’ on several occasions. Again, advice was required. Since the roadside encounter on 4 September 2024, there were no further instances where Mr Takkou drove the vehicles without a driver card inserted.
I referred to Mr Lewis’s useful update report of 31 January 2025 noting WP63 DPF (specified 27 September 2024) and RX07 GPE (specified 28 September 2024). He confirmed the content of the above report, having met with both directors and a transport consultant, Laurence Laver of Smarter Transport Solutions. The Graduated Fixed Penalty Notices and prohibition were not at issue. Mr Lewis referred to the documents to be disclosed under Case Management Directions, to which I refer above, to include Evidence of systems for managing drivers to include at least the following for all drivers for the last 3 months:
• Raw tachograph data for RX07GPE & WP63DPF
• driver licence checks
• driver infringement reports
• vehicle unit download reports (sometimes called missing mileage reports or unknown event reports)
• evidence of continuous professional development of relevant managers/planners/supervisors
• evidence of disciplinary action received by drivers and managers.
The following was received via Ms Gilder on 22 January 2025:
• Licence Checks Andrew Erskine
• Licence Checks Karl Takkou
• Driver Licence Expiry Record
• Infringement Reports Andrew Erskine October to December 2024
• Infringement Reports Karl Takkou October to December 2024
• Infringement Summary Andrew Erskine October to December 2024
• Infringement Summary October to December 2024
• Missing Mileage Reports
• Karl Takkou Transport Manager Refresher Certificate
• Laurence Laver Transport Consultant CV etc
• Laurence Laver Roller Brake Test Certificate
• Training Matrix
• Driver Handbook and Risk Assessments
• Fleet Operations Compliance Manual FORS
• Karl Takkou Signed Declarations
• Andrew Erskine Signed Declarations
The email explained that an investigation was ongoing in respect of a period of driving without card for vehicle RX07 GPE on 4 December 2024. A further email was received the same day with an attached missing mileage report for January 2025. There were no records of driving without a card on this report.
Mr Lewis noted that the operator provided copies of driving licence checks undertaken using the gov.uk licence check system for Andrew Erskine dated 21 October 2024 and 20 January 2025. Mr. Erskine holds vocational entitlement to drive vehicles falling within category C (rigid goods vehicle exceeding 7.5 tonne gross vehicle weight). That entitlement was obtained on 28 May 2024. The record showed the relevant history. Mr Andrew Erskine is the holder of a valid (first) digital tachograph driver card valid from 10 October 2024 to 9 October 2029. There is no record of any Driver CPC qualification, but the derogation permits ‘use of the vehicle to convey tools and equipment used in the course of the driver’s main duty where that main duty is not driving and the total driving undertaken is less than 30% of the rolling monthly working time. The operator also provided copies of driving licence checks undertaken using the gov.uk licence check system for Karl Takkou dated 21 October 2024 and 20 January 2025. Mr. Takkou holds a vocational entitlement to drive vehicles falling within category C, obtained on 11 November 2022. The record for 20 January 2025 shows an endorsement dated 3 September 2024 (CU80 – breach of requirements as the control of the vehicle including mobile phone offences that carry a mandatory 6 penalty points. He is the holder of a valid (first) digital tachograph driver card valid to 6 December 2027. The record indicates that Mr. Takkou is the holder of an international driver CPC qualification valid until 13 January 2030. A driver record report was provided which showed all relevant dates for all drivers and the due date of the next driving licence checks.
On infringement reports, Mr Lewis noted a single infringement report generated by SmartAnalysis for the period October to December 2024 for driver Andrew Erskine, generated on 12 January 2025 and signed by the driver on 13 January 2025. There appear to be no previous infringement reports generated, as the previous debrief was dated 12 January 2025. That suggested a period of almost 4 months where no analysis was undertaken for the driving records of Andrew Erskine. The report was generated after the call up letter was sent to the operator and shortly before the documents were required to be provided. The report recorded four Working Time infringements and a single driver’s hours infringement. The debrief document contained comments reminding the Driver of the requirements and in the case of the insufficient rest WTD infringement provides an explanation for the occurrence (card left in vehicle overnight), with a reminder to make an endorsement. Mr Lewis’s analysis of the raw vehicle data confirmed the content. He was unable to confirm whether the driver made a manual entry of rest upon insertion of his driver card into vehicle WP63 DPF and to determine whether any rest period was actually taken.
The operator provided a single infringement report generated by SmartAnalysis for the period October to December 2024 for driver Karl Takkou. That report was generated on 12 January 2025 and signed by the driver on 13 January 2025. There appeared to have been a previous infringement report generated for this driver on 21 October 2024, but that was not provided, but a period of almost 12 weeks between those dates. The report recorded nine Working Time infringements, but no driver’s hours infringements The debrief document reminded the driver of the requirements. Mr Lewis’s assessment of the raw vehicle data provided by the operator concurred with that the infringement report from 20 October 2024 onwards. No data was provided prior to this date.
Unknown Mileage Missing mileage reports were provided for the period. His analysis of the raw vehicle data showed the following:
• RX07 GPE, 9 to 14 October 2024 inclusive: ‘Driven by driver with defective or lost card.’ Ms Gilder’s email stated that Andrew Erskine was issued with a driver card on the 10 October 2024, but the periods where the driver was unknown between the 9 and 14 October were ascribed to him. As Mr Erskine had yet to receive his first card, he should not have driven vehicles equipped with digital tachograph equipment. The provision for driving vehicles without a driver card and substituting driver card records with printouts made before and after the working period is reserved solely for when the card is genuinely lost, stolen or malfunctioning and has been reported to DVLA. At the time of Mr Lewis’s visit, Mr Erskine suggested that he had lost his driver card, but in fact had never held a driver card prior to the visit.
• The record for 29 November 2024 suggesting that the driver card was inserted in the wrong slot in the recording equipment (134 km) and 3 December 2024 where the vehicle was driven without a card (48km), listed as 4 December 2024 appear to have been confused, as Mr Lewis’s analysis of the raw data shows. He received no further information from the operator regarding the period of driving without a card on 3 December 2024.
• On 6 December 2024, it was suggested that there had been shunting lasting 3 minutes within the yard (the operator could not identify who due to a lack of record keeping and audit) and Mr Erskine’s driver card was removed for that period and then driven by him immediately after. He had caused an infringement by leaving his card in the vehicle overnight, so the tachograph would have displayed a warning on the screen. At the very least, Mr Erskine would have been aware of this.
• The record for 23 December 2024 referred to further shunting but the raw data for vehicle RX07 GPE showed that the card was not removed on that occasion. There were several short periods of driving without a card on 19 and 20 December 2024 (totalling less than 1km) but these were not reported on. The comparison led Mr Lewis to conclude that the report provided a generic end date (i.e,. when a driver card is next inserted) rather than each individual day that a vehicle is moved without a card inserted.
• WP63 DPF, was moved by a shunter on 28 October 2024, but the card was not removed, but several short movements on 21 , 22, and 23 October 2024 (totalling 4 km). It was next used with a driver card on 28 October 2024. Again, this suggested that the analysis tool for producing missing mileage reports gives a generic end date of that at which point a driver card is next inserted rather than each individual day.
• The vehicle was said to have been driven by the maintenance contractor on 5 December 2024, but the Preventative Maintenance Inspection was date 2 December 2024, and the vehicle data showed no card on 4 December 2024 (after investigation this was also attributed to Calmac.) Delivery back to the operator would not be exempt from EC regulations and would require a record.
• The operator’s report had no records of any vehicles being driven without a driver card inserted, but analysis of the raw data indicated 5 periods of driving without a card inserted - all appeared to be shunting.
Mr Lewis noted that in general the drivers do not undertake significant periods of driving. The analysis provided by the operator indicates only one instance of exceeding 4.5 hours driving for the period October to December 2024 inclusive. The majority of the infringements recorded were for breaches of working time directive, for which Mr Lewis suggested training is now required for both drivers. The infringement reports provided by the operator indicated a high number of days without records. Going forward, other work will be recorded). The tachograph record for RX07 GPE on 26 October 2024 indicated a short period between card changes for drivers Erskine and Takkou. Further investigation revealed overlapping times with drivers present. ANPR data showed the vehicle travelling on the A50 Victoria Street in the Staffordshire area at 10:51, as evidenced. The image confirmed two people in the cab of the vehicle, pointing to an inaccurate record, as both driver cards should have been inserted in the corresponding tachograph slots and switched when the drivers changed over. The combined driving period for both drivers on this day was 4 hours 52 minutes, it also indicated that the analysis undertaken is not being investigated thoroughly.
No evidence of any disciplinary action was provided by the operator other than signed infringement reports. There was no record of any remedial action to prevent recurrence of the apparent offences or any record of the outcomes of the debrief arising from the infringements. A copy of the disciplinary policy was included.
Mr Lewis referred to the evidence of Mr Takkou attending a two-day Transport Manager refresher course on 2 and 3 December 2024, but no evidence of any training for Mr Erskine. (OLAT was booked the day before the hearing.) The training matrix listed a number of planned toolbox talks, but nothing during October to December 2024. Mr Erskine signed for the driver handbook and associated risk assessments on 21 January 2025. Mr Takkou signed on 23 January 2025. Mr Lewis helpfully reviewed the contents and found it to be generally comprehensive, with sections on fitness to drive, drink/drugs policy, medical declaration policy, bridge strike policy, speed limits, defensive driving, vehicle loading and securing, drivers’ hours regulations, but noted some inconsistencies with the legal requirements:
• page 3 of the handbook – requiring Driving Licence, Driver Qualification Card and Digital Tachograph Card at all times and suggesting that none of the drivers fall into an exempt category, where Mr Erskine does not hold a current CPC qualification. Mr Lewis confirmed the derogation (as above). This suggested that the driver handbook was generic and not tailored to this operation.
• page 3 refers to 6-monthly driving licence checks “in line with FORS standards and insurance company requirements”. Mr Lewis referred to DVSA guidance and the need to adopt a risk-based approach where a driver has penalty points.
In evidence I heard that those changes had now been made.
Representations were signed by both Directors and can be summarised as follows: the shortcomings identified at the stop and the subsequent report were accepted. The operator had failed to understand the requirements to specify vehicles from the outset but there was no unauthorised operation or operation in excess of the authority. From grant of licence until August 2024 only 1 vehicle was operated. The vehicles operate within 100km of base and are used to carry equipment for the drivers use in the course of his work, however the vehicles are in excess of 7,500kg and therefore the work is and was not exempt under Article 3 of Regulation 561/2006. The operator accepted that all work should have been recorded on a digital driver card and vehicles should have been locked in and downloaded. It was admitted that there was no driver defect reporting system in place at the time of the stop, but since the stop (acting on Mr Laver’s advice) a defect reporting system has been implemented. A company card has been issued, and vehicles are downloaded monthly and driver cards fortnightly, which I have taken as a statement of intent. Reports are then produced monthly. A roller brake test was said to have been conducted at every recent inspection but prior to the specification of the vehicles, records had not been retained, despite the licence requirement. Mr Takkou has attended transport manager refresher training, and Mr Laver has been engaged as a transport consultant.
The operator accepted that at the time the licence was granted (8 September 2022) until the 4 September 2024 when vehicle RX07 GPE was stopped, the Vehicle Units and driver cards had not been downloaded. The operator was not in possession of a company card and the vehicles had not been specified. Vehicle RX07 GPE had been in use immediately following the licence grant and vehicle WP63 DPF since June 2024.
Determination
Based on the evidence summarised above, I made adverse findings under the following sections of the Act: 26(1)(b) – conditions on licence to notify changes, in this case relating to notification of matters going to Director fitness, (I also noted that the operator had failed to specify vehicles as required and to notify changes in maintenance arrangements), 26(1)(ca) – fixed penalty, 26(1)(e) – statements to abide by conditions on the licence, 26(1)(f) – undertakings on drivers’ hours and tachograph compliance, (I also noted the admissions regarding a lack of diver defect reporting and the absence of previous maintenance records).
In representations, it was accepted that the case fell within the ‘SERIOUS’ category described by the Senior Traffic Commissioner in Annex 4 of Statutory Document No. 10. It was accepted that vehicles had not been specified for years; vehicles had been driven without a driver card inserted, that Vehicle Units and driver cards had not been downloaded, again for considerable periods. Ms Gilder then sought to persuade me that the following factors indicated a more positive disposal: only 1 vehicle operated from grant to August 2024, no use of an unauthorised operating centre, no use of vehicles in excess of authorisation, limited driving and mileage undertaken, all operations within 100 km of the base, no significant drivers’ hours infringements, Mr Takkou attended training, prompt action and a consultant engaged, both drivers have obtained an initial Driver CPC qualification (Mr Erskine’s card had yet to be received), driver induction is in place with a handbook and risk assessments, regular maintenance, Mr Lewis noted improvement, co-operation, no previous regulatory history and a low risk operator. A number of those factors are simply basic requirement of the operator’s licence which should have been in place since grant, based on the promises given by Mr Erskine during the application.
Other facts were a matter of luck rather than judgement. Up to the commencement of the DVSA investigation neither director held the CPC qualification. I give credit for the additional actions as, although exempt from having to have it, both are in the process of obtaining a full DCPC. I therefore determined to deal with the cases holistically.
Driver Conduct
By way of reminder, the relevant legislation is set out in Sections 110-122 of The Road Traffic Act 1988. The legislation draws a clear distinction between Large Goods Vehicle (LGV) licence holders and applicants and Passenger Carrying Vehicle (PCV) licence holders and applicants.
Section 112 of the 1988 Act provides that the Secretary of State shall not grant to an applicant a LGV driver’s licence or a PCV driver’s licence unless he is satisfied, having regard to his conduct, that he is a fit person to hold the licence applied for. It is section 121(1) which defines conduct:
• in relation to an applicant for or the holder of a LGV driver’s licence or the holder of a UK licence for the Community, his conduct as a driver of a motor vehicle.
The Administrative Court, on the application of Meredith and Others EWHC 2975 (Admin) 18 explained that, whilst the personal circumstances of the driver are, at the preliminary stage of consideration of fitness, irrelevant to the question whether his conduct as a driver has been such as to make him unfit, save to the extent that those circumstances concern his conduct as a driver. Personal circumstances which go to mitigate the conduct itself (such as illness, or emergency, or momentary lapse of attention, or carelessness) will be relevant, while personal circumstances which would, in the ordinary sentencing exercise by a criminal court go to mitigation of penalty (such as loss of work, or other hardship, or the dependence of others upon the licence-holder) would not.
The Court did not go on to consider the applicability of the principle of deterrence, which was considered by the Court of Session in Thomas Muir (Haulage) Limited v The Secretary of State for the Environment, Transport and the Regions [1999] SC 86, but regulatory action undoubtedly contributes to achieving of the purpose of the legislation. I have taken account of the prompt actions taken.
The directors are the only drivers of the in-scope vehicles. Both directors have now undergone an induction with Mr Laver and been issued with a driver handbook which contains information on safe loading, walkaround checks and drivers’ hours. Mr Takkou as evidenced above has attended a 2-day transport manager refresher course. The operator has also put in place a training matrix to include loading and load security. Both directors/drivers are in the process of obtaining their CPC qualification. Drivers’ hours records must be retained by the operator. Looking forward, as the legislation is designed for, I noted the up-to-date record, following the training. I am satisfied that the risk of further breaches should be low, but there will be no second chances. However, I was concerned by the instincts which led to Mr Takkou picking up a mobile telephone whilst driving in a commercial vehicle. He referred to an accident which had befallen a family member, only to acknowledge the risk he posed to other road users and the impact on his reaction times from this thoughtless action.
I determined that deterrent action was required in order to prevent a repeat. I referred to the Senior Traffic Commissioner’s Statutory Document No. 6 on Vocational Driver Conduct and found no reason to depart from the starting point (see below).
Operator Conduct
In addition to the factors identified, I accepted the following undertakings:
• To retain Mr Laver to advise on compliance with the operator licence requirements. He will attend the operating centre for at least 2 hours every fortnight for that purpose.
• The operator will identify an independent body to carry out an audit of transport safety and compliance systems. The audit will assess the operator against the standards published under the DVSA earned recognition scheme: www.gov.uk/government/publications/dvsa-earned-recognition-vehicle-operator-standards A copy of the report together with the operator’s detailed proposals for implementing the report’s recommendations is to be submitted to the Office of the Traffic Commissioner in Cambridge within 6 months of the date of the Public Inquiry. The audit will assess the compliance systems, and the effectiveness with which those systems are implemented. The audit should cover at least the applicable elements detailed in the guidance on Operator Compliance Audits available at: www.gov.uk/government/publications/operator-compliance-audits
In line with the Upper Tribunal decision in 2013/007 Redsky Wholesalers Ltd, I considered the question posed by the Tribunal in 2009/225 Priority Freight, namely how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime? Based on the actions to date and the further promises, I was satisfied that I could draw back from permanent intervention. I therefore curtailed the operator’s licence by 1 vehicle for 1 month. The disc for RX07 GPE must be surrendered within 7 days. Mr Takkou’s vocational entitlement is suspended for the same period, commencing at 23:45 tonight. The Directors were so ill-equipped that there was little prospect of them meeting the licence obligations and yet it is difficult to understand why any business, which all carry obligations under health and safety legislation had failed to identify the risks and to at least employ basic measures or seek advice. The fitness of this operator has been severely tarnished by their failures.
The Upper Tribunal has highlighted the differences between an application where the traffic commissioner exercises a ‘gatekeeper function’ and any subsequent regulatory action taken after a licence has been granted. The Senior Traffic Commissioner advises traffic commissioners to look at who will be responsible for fulfilling the undertakings and conditions and whether they are fit to do so. That applies equally to applicants. It is necessary to disabuse anyone of the notion that all you have to do to obtain a licence is tick the boxes on the application form. Applicants should read the published guidance and work out what is required before even attempting to complete the application form. Scaffolders and similar operators should note that the exemptions only apply to to 7.5 tonnes As the Upper Tribunal reinforced in the appeal UT2014/024 LA & Z Leonida trading as ETS: … it does not matter whether an operator’s licence is held by an owner operator, a partnership or a limited company because in each case the person or persons responsible for managing the business bear the ultimate responsibility for ensuring that the road transport aspect of the business operates in compliance with the regulatory regime. Applicants for and holders of restricted operator licences need to start giving the same attention to these basic requirements as they would the tax or health & safety regimes.
R Turfitt
Traffic Commissioner
6 February 2025