Decision for Eddaball Scaffolding Ltd OG2065774
Written decision of the Traffic Commissioner for Wales for Eddaball Scaffolding Ltd
IN THE WELSH TRAFFIC AREA
DECISION OF THE TRAFFIC COMMISSIONER FOR WALES
PUBLIC INQUIRY HELD AT PONTYPRIDD ON 6 FEBRUARY 2025
Eddaball Scaffolding Ltd OG2065774
Decision
Goods Vehicles (Licensing of Operators Act 1995 (“the Act”)
Pursuant to adverse findings under sections 26(1)(c)(i), 26(1)(ii), 26(1)(iii), 26(1)(f) and 26(1)(h) of the Act, operator licence OG2065774 is revoked with effect from 23:45 hours on 28 February 2025.
Background
The operator, Eddaball Scaffolding Ltd, holds a Restricted Goods Vehicle Operator’s Licence authorising 1 vehicle and 1 trailer, granted on 3 July 2023. Adrian Thomas is the sole director of the operating company and the Responsible Person on the licence. The operator is engaged in commercial and domestic scaffolding work in South Wales.
On 3 April 2024, the Driver and Vehicle Standards Agency (“DVSA”) encountered vehicle HN63FPJ, which had a maximum permitted weight of 7500kg and was laden with scaffolding equipment but was not displaying an operator’s licence disc. The driver of the vehicle, Daniel Wallis, confirmed he was working for the operator and enquiries revealed that the vehicle had been on hire to the operator for several months. The driver’s licence did not entitle him to drive a vehicle over 3500kg and the DVSA issued an “S” marked prohibition notice for an insecure load. Daniel Wallis was prosecuted by the DVSA for the offence of driving on a road otherwise than in accordance with a licence, and the operator was prosecuted for the offence of permitting its driver to do so. The driver and operator both pleaded guilty at Merthyr Tydfil Magistrates’ Court on 23 October 2024. The operator and Mr Wallis were fined and ordered to pay costs. Following on from that roadside encounter, Traffic Examiner (“TE”) David Haines-Burke conducted a TE visit, and his subsequent report found serious shortcomings in driver licensing checking arrangements, driver training and systems for monitoring drivers’ working time. By a call up letter dated 18 December 2024, the operator was called to public inquiry.
Hearing
The Public Inquiry was listed for 6 February 2025 at the Office of the Traffic Commissioner for Wales in Pontypridd. Adrian Thomas, the sole director of Eddaball Scaffolding Ltd attended on behalf of the operator and was represented by Scott Bell of JMW Law.
Issues
The public inquiry was called for me to consider whether there were grounds for me to intervene in respect of the licence held by Eddaball Scaffolding Ltd, specifically by reference to the following sections of the Act: 26(1)(c)(i), 26(1)(c)(ii), 26(1)(c)(iii), 26(1)(f), 26(1)(h), 26(1), 26(6) and 28.
The public inquiry was also called to consider a variation application submitted by the operator on 12 June 2024 for an increase in vehicle authorisation from 1 vehicle and 1 trailer to 2 vehicles and 2 trailers and a change of operating centre from Yard Rear of PEM Trailers Ltd, Riverside Road, The Docks, Port Talbot, SA13 1RH to Plot 3, Seaway Parade Industrial Estate, Baglan, Port Talbot, SA12 7BR. The application had been granted on an interim basis in respect of the operating centre change only, not the increase in vehicle authorisation, pending the public inquiry hearing.
Evidence
The call up letter required the operator to send documentation to TE Haines-Burke at least 14 days prior to the public inquiry hearing. Specifically, the call up letter required the following documents: evidence of the operator’s systems for managing drivers to include at least the following for all drivers for the last 3 months: driver licence checks; driver infringement reports vehicle unit download reports; evidence of continuous professional development of relevant managers/planners/supervisors and evidence of disciplinary action received by drivers and managers. The operator submitted limited records to the TE in response to that request. TE Haines-Burke prepared a Public Inquiry Supplementary Statement dated 24 January summarising the records received and including his analysis and comment. That statement was served on the operator in advance of the hearing. The operator submitted evidence of its financial situation in advance of the public inquiry hearing, which met the requirements.
In opening submissions on behalf of the operator, Scott Bell indicated that the operator no longer wished to pursue the variation application seeking an increase in vehicle authorisation. It did still wish to change its operating centre to the new address, an interim direction to that effect already having been made. He indicated that the DVSA evidence was not contested and acknowledged that TE Haines-Burke’s supplementary statement raised some serious concerns, including that the operator’s driver has again been driving/permitted to drive a vehicle without the correct licence entitlement. Due to the potential risk of incrimination, I agreed to allow Mr Bell to make submissions based on his client’s instructions as to the circumstances. These were that the driver has previously held the correct entitlement until 2023 when he did not renew his medical, resulting in him reverting to Class B entitlement. He began driving for the operator in summer 2024. The operator did not conduct an online licence check and only checked the driver’s physical driving card before allowing him to drive its 18,000kg vehicle, from September 2024. The driver continued driving that vehicle until it came to light in preparing for the public inquiry hearing that the driver did not hold the correct entitlement, which the driver himself had not appreciated until then. That was in January 2025, when the vehicle was taken off the road and it remained off road at the date of the hearing.
In his oral evidence Adrian Thomas accepted the compliance failings set out in the DVSA evidence and the call up letter. He explained that he had started his business doing small jobs and using 3.5 tonne vehicles. Moving to bigger jobs, he needed an operator’s licence but had been unable to keep control of everything and it was too much for him. Following the prohibition for the insecure load he had arranged some internal training on loading/netting and walkaround checks. He accepted that when they began using the 18,000kg vehicle in September last year, he should have considered the need to comply with the legislative requirements as to tachographs and the need to download the tachograph vehicle unit. When asked why he did not do so, his explanation was that it was all new to him and he was negligent in not checking. He had seen the drivers putting their cards into the vehicle, but it was only when he spoke to a consultancy firm, Plumwood, that he became aware that he had failed to comply with the legal obligations. He accepted that he should have checked the position with others if, as he stated, he was unsure what to do. Since January the 18,000kg vehicle, which is on hire to the operator, has been parked up and they have been using 3 smaller 3.5 tonne vehicles. That has had a financial impact on the business and they’ve had to turn down some jobs. An agreement has been entered into with Plumwood Consultancy, dated 23 January 2025, for that company to assist with operator licence compliance obligations. A company card arrived the day before the hearing and download device arrived the week before and they have now found a driver who is licensed to drive the vehicle, although he has not yet undergone relevant driver training for scaffolders. When asked why this arrangement was not entered into sooner, Mr Thomas’ response was that he was not sure, but he had been trying to get things in place and had spoken to the owner of Plumwood in November and December last year. He accepted that the formal arrangement had not been entered into until 2 weeks before the inquiry hearing. He had attended an operator licence awareness training course on 5 February, the day before the hearing.
Findings of fact
Eddaball Scaffolding Ltd pleaded guilty at Merthyr Tydfil Magistrates Court on 23 October 2024 for permitting a person to drive on a road otherwise in accordance with a licence when it was sentenced to a fine of £146 and costs order for £136. The driver, Daniel Wallis, also pleaded guilty on that date to the offence of driving on a road otherwise than in accordance with a licence and he received 3 penalty points, a fine of £146.99 and costs order for £94. Accordingly, I find that section 26(1)(c)(i) and (ii) of the Act are made out.
It is undisputed that an immediate “S” marked prohibition notice was issued to the operator’s vehicle on 3 April 2024 for an insecure load with evidence or likelihood of movement, causing or likelihood of danger, unsheeted loose load. Accordingly, I find that section 26(1)(c)(iii) of the Act is made out.
The operator failed to comply with the undertaking that it would observe the rules on drivers’ hours and tachographs and keep proper records. At the time of the TE investigation visit in April last year, the operator had no formal system in place for managing and recording drivers’ working time. These failures had persisted at the time of the public inquiry hearing and, since September 2024 when it began operating the 18,000kg vehicle, the operator has been fully in scope of EU drivers’ hours regulations. However, it failed to download the vehicle tachograph unit, as required by legislation, meaning that there were no vehicle unit download reports or driver infringement reports/disciplinary reports. This was a complete failure to observe the rules on drivers’ hours and tachographs and keep proper records and I find that section 26(1)(f) of the Act is made out.
Since the licence was issued, there has been a material change in the circumstances of its holder, namely that the operator is unfit to hold a licence. Despite TE Haines-Burke explaining what steps the operator should take to ensure that its drivers held the correct licence entitlement, which would have prevented the offences being committed last April, the operator failed to heed that clear and straightforward advice. Mr Thomas acknowledged in April of last year that he had not been correctly carrying out the driver licence checks and that he recognised the importance of doing so going forwards. Yet the operator has, once again, failed to do so resulting in its driver driving a large 18,000kg on a road whilst not licensed to do so and for a lengthy period of around 4 months. There is no mitigation or excuse for that failure to carry out basic online driver licence checks. Furthermore, that vehicle was operated without any adherence to drivers’ hours, working time and tachograph legislation. Those rules assist in keeping the public safe when using public roads and it is serious when they are not complied with by those operating heavy goods vehicles. Accordingly, I find that section 26(1)(h) of the Act is made out.
Considerations and Decisions
Having regard to the Senior Traffic Commissioner’s Statutory Document 10, Annex 4, and having considered all the evidence, I agree with Mr Bell’s assessment and place this case in the severe category when considering the starting point for regulatory action. The operator caused or permitted driver offending which compromised road safety; there were persistent operator licence failures with inadequate response right up until shortly before the inquiry hearing, with assurances given by the operator not followed through; there was ineffective management control and insufficient systems and procedures in place to prevent operator licence compliance failings; there were no analysis procedures in place to detect drivers’ hours or working time infringements and no procedures in place to ensure appropriate use of tachograph records by drivers; there was insufficient driver training with ineffective monitoring and disciplinary procedures in place, particularly regarding load security; and there was an “S marked prohibition issued in respect of a dangerous load on a vehicle in service. On the positive side, the operator co-operated with the enforcement investigation.
I’ve considered the steps taken by the operator following the vehicle stop last April, resulting in criminal convictions for vehicle licensing offences for both the operator and its driver, and in response to TE Haines-Burke’s report findings and recommendations. In doing so, I have considered the words of the Upper Tribunal in their decision Arnold Transport & Sons Ltd v DOENI (NT/2013/82), “It is also important for operators to understand that the [Traffic Commissioner] is clearly alive to the saying that: “actions speak louder than words”… We agree that this is a helpful and appropriate approach. The attitude of an operator when something goes wrong can be very instructive. Some recognise the problem at once and take immediate and effective steps to put matters right. Others only recognise the problem when it is set out in a call-up letter and begin to put matters right in the period before the Public Inquiry takes place. A third group leave it even later and come to the Public Inquiry with promises of action in the future. A fourth group bury their heads in the sand and wait to be told what to do during the Public Inquiry. It will be for the [Traffic Commissioner] to assess the position on the facts of each individual case. However, it seems clear that prompt and effective action is likely to be given greater weight than untested promises to put matters right in the future.”
In his submissions, Mr Bell pointed out that the operator has now sought professional help from Plumwood and attended operator licence awareness training. He suggested that TE Haines-Burke had been a little harsh in his public inquiry update statement when he commented that “Having reviewed the operator’s response ahead of this public inquiry, I have serious concerns that the operator has not learned from this experience” and that “the operator’s response to this process has, until now, been bordering on apathetic.” However, Mr Bell did acknowledge that help should have been put in place before it was. It is telling that the compliance service agreement was dated only two weeks before the date of the inquiry and that Adrian Thomas attended an operator licence awareness course only the day before. Although a driver with the correct licence entitlement had apparently now been found to drive the 18,000kg vehicle, he has still not undergone all the relevant training to drive the scaffolding vehicle, with that to be arranged through the RHA “in the next couple of months”. Mr Bell asked me to accept that this was a case of the operator being negligent and taking its operator’s licence for granted. I agree that it was negligent and that it did take the licence for granted, but it also chose to ignore clear advice given to it by the enforcement authority about the need for and importance of driver licence checks, which goes to the question of trust.
In considering the Priority Freight (2009/225) question, “how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime?” I have had regard to the failures I had found proved which were serious, but also the operator’s failure to act upon clear advice from the DVSA, particularly as to driver licence checking, despite having given assurances that it would make the necessary changes. There was no tangible evidence of changes having been made to ensure future compliance. By contrast, there was clear evidence that the operator had persisted in its failure properly to check drivers’ license entitlements, resulting in a clear risk to road safety from a driver driving a 18,000kg vehicle without the correct entitlement for a lengthy period. I therefore find the answer to that question to be, “unlikely”.
In considering the Bryan Haulage (no.2) (2002/217) question, “is the conduct such that the operator ought to be put out of business?” in reaching my decision, I had regard to the positive and negative features set out in the Senior Traffic Commissioner’s Statutory Document 10, Annex 4, and discussed above. This was a case where the starting point for regulatory action was severe. I also take the view that other operators who carry out their businesses in a compliant manner would be shocked if another operator were permitted to operate vehicles against this background. I have considered the effect that revocation would have on the operator’s business having heard evidence from Mr Thomas about that. I note that the 18,000kg vehicle has not been operating since January, it is on hire and can go back to the hire company. The operator previously operated its business using smaller 3.5 tonne vehicles, which is what it has been doing since January. Mr Thomas’ evidence was that the business could carry on operating in that way but that it would be unable to service a big contract it has for solar panels. In the circumstances, I consider that it is appropriate and proportionate to answer the Bryan Haulage question in the affirmative, noting that revocation would likely not put this operator out of business, and I consider that revocation is the proportionate regulatory response. The licence is revoked with effect from 23:45 hours on 28 February 2025
I have given serious consideration to whether the operator and Adrian Thomas as director should be disqualified from operating in the future under section 28 of the Act. The guidance to which I must have regard reminds me at paragraph 62 (Statutory Document 10) that whilst there need not be an additional feature before a disqualification order is made, it is not automatic. My balancing exercise for revocation is relevant. However, I note and give some credit to the operator for some changes that it did introduce by way of training and engaging professional advisers, including Plumwood consultancy and legal advisers following receipt of the call-up letter. In not making an order for disqualification I acknowledge those positive, albeit limited, changes. This may allow the operator to return to the licensing regime should it wish to do so, but it will require a different approach to compliance.
Victoria Davies
Traffic Commissioner for Wales
18 February 2025