Decision for M&S Scaffolding (Cumbria) Ltd (OC2033467)
Written decision of the Traffic Commissioner for the North West of England for M&S Scaffolding (Cumbria) Ltd (OC2033467) and Mr. Simon Lofthouse
IN THE NORTH WEST TRAFFIC AREA
M&S SCAFFOLDING (CUMBRIA) LTD (OC2033467)
PUBLIC INQUIRY HELD IN GOLBORNE 7th JANUARY 2025
WRITTEN DECISION OF THE TRAFFIC COMMISSIONER
M&S Scaffolding (Cumbria) Ltd (“MSSC”) holds a Restricted Goods Vehicle Operator’s Licence authorising 2 vehicles. The Director is Mr Simon Lofthouse. The licence was granted in September 2020.
The operator has a single operating centre, recorded as 36 Harvey Street, Carlisle, CA2 7NX. Preventative Maintenance Inspections are said to be carried out by MM Commercials, Unit 11, Whitesyke Business Park, Longtown, CA6 5TR at 8 weekly intervals.
Background
This licence was granted at Public Inquiry convened on 21 July 2020 on condition of undertakings offered by the operator. Less than a year later, on 09 April 2021, the licence was subject to a ‘proposal to revoke’ due to the lack of finances. The licence was, as a result, curtailed with further undertakings being added.
One of those undertakings required the production of evidence that finances were in place to support the maintenance of vehicles. That evidence was provided late and was only provided following a reminder issued by this office.
The other undertaking was for an independent audit. An audit was provided to this office, but again it was produced only after the agreed timeframe. The audit highlighted a number of failings with the systems required to ensure compliance. This resulted in a warning issued to the operator, subject to further undertakings being added to the licence.
The operator received an immediate prohibition on the 29 November 2022 due to three failings which ought to have been detected at a driver walk round check. This resulted in an unannounced DVSA visit on the 17 July 2024. The resulting Maintenance Investigation Visit Report was scored as “Unsatisfactory” with three areas marked as “Report to OTC”.
It is customary, following a DVSA visit, for the resulting report to be issued to the operator for their comments. These usually set out, either, any challenge to the findings of the DVSA assessment; or outline the steps that the operator intends to put in place to remedy any issues identified. In this instance the operator failed to provide any response to the DVSA. The visiting officer sent a further notice to the operator, addressed to Mr Lofthouse, on 02 October 2024, asking for a response. No response was forthcoming.
In a separate piece of correspondence, this office wrote to the operator on 13 November 2024 seeking clarification on vehicle NU63 XBP which was added to the operator’s licence on 20 August 2024 immediately following the revocation of licence OC2036541 held in the name of Scaffolding Solutions (Carlisle) Ltd. Like the DVSA letter on 02 October 2024, the operator has failed to respond.
Pre-Hearing
A letter calling the operator to a Public Inquiry was issued to the given correspondence address of 36 Harvey Street, Carlisle, CA2 7NX. This set out the location, date and time of the Public Inquiry. It also provided a number of case management directions which included (i) the need to respond to this office to confirm who will be in attendance; (ii) a requirement to provide evidence of available finances 14 days prior to the hearing date; and (iii) a list of documents to be provided to the DVSA for assessment 14 days prior to the Hearing date. None of these case management directions have been complied with.
Public Inquiry
The Public Inquiry took place on Tuesday 07th January 2025 at the Golborne Hearing Centre. The operator failed to attend. In the absence of any further evidence or representations I make the determination below on the basis of the best available evidence before me.
Issues
This operator has a history of failing to fully engage with the licensing regime. As noted above, the licence was granted at Public Inquiry with undertakings. These undertakings were only complied with after the deadline and following reminders from this office.
More recently, they have failed to respond to two requests from the DVSA for a response to the findings of the MIVR, have failed to respond to a query from this office regarding a vehicle recently added to their licence, and they have failed to comply with the case management directions given in respect of this Hearing. It is therefore of little surprise that they have failed to attend this Public Inquiry. Public Inquiries are inquisitorial by nature, and in failing to attend, this operator has denied me the opportunity to fully interrogate the issues behind this operation.
Those issues have been drawn out across three products; (a) an independent compliance audit dated February 2022; (b) an Immediate Prohibition received 29 November 2022; and (c) an unsatisfactory MIVR from July 2024.
Summary of Evidence
The independent audit, provided as part of an undertaking agreed at the grant of this licence, was completed on 08 February 2022 by SP Training. The following issues are identified from that report:
- There is no evidence of a driver induction;
- Driver CPC days are said to be monitored, but no records are kept;
- Licence Checks are said to be undertaken, but no records are kept;
- PMI timescales are not consistent with the recommendations within the Guide to Maintaining Roadworthiness considering the age of the fleet;
- Driver Cards are said to be returned, but these are not checked or signed off;
- There is inconsistencies in the operator’s responses regarding the use of agency drivers;
- There are issues with the driver defect reporting system.
The Immediate Prohibition was received on 29 November 2022 due to the following defects. It is noted that each of these defects ought to have been identified by the driver undertaking a first-use walk around check.
- Direction Indicator Missing, Indicator cannot be used to clearly show driver’s intention, offside, side repeater lamp;
- Direction Indicator Missing, Indicator cannot be used to clearly show driver’s intention, nearside, side repeater lamp;
- Wheel Nut Washer Missing (more than one fitted to that wheel offside, Axel 1, 4 of 6).
The subsequent Maintenance Investigation Report was completed on 17 July 2024. Of the thirteen areas inspected only three were marked as “Satisfactory”.
Two returned as “Mostly Satisfactory”, four were “Unsatisfactory/Action Required”, and three were marked as “Report to OTC”. Some of the issues raised were of significant concern:
- The nominated and approved operating centre had not been used for some twelve months;
- PMIs were incomplete, there was an absence of brake testing, driver detectable defects were identified at PMI, the declaration of roadworthiness had not been signed off, and there had been a failure of the wheel torque systems;
- There was no forward planning system, no VOR system and no systems for safety defects / recall systems;
- There was no evidence of any driver defect reporting system in place since January 2024, and no evidence available for the required sample period of 15 months;
- There was no rolling road brake facility and no arrangements in place to access one;
- There was no evidence of an effective wheel security system or tyre management systems. There was no wheel torquing undertaken and no tyre pressure monitoring;
- There was no evidence of training of securing loading;
- The Director gave a statement confirming unlawful parking at an unapproved operating centre;
- There was no evidence of ongoing training or continuous professional development on the part of the Director;
- The Examiner identified unlawful use of an unspecified Heavy Goods Vehicle (MX61 FKU) which had no road tax. The driver of the vehicle was Mr Lofthouse, Director of the licence holding company.
In respect of item “j” above, the Director, Mr Lofthouse was invited to attend a formal interview. At that interview it was confirmed that the vehicle has been in used, untaxed, between January 2024 and the time of July 2024. Mr Lofthouse stated that he didn’t realise it wasn’t taxed and advised that he had tried to add it to his licence but was unbale to get a password reset. He claimed to have contacted OTC on 25 July 2024 but did not get a reply. No evidence of communication with the OTC has been provided.
I am concerned that there are a wide number of failings which would present a very real risk to the health & safety of drivers and the wider road using public. As stated above, the failure of the operator to attend the Public Inquiry has denied me the opportunity to investigate my concerns further. Conversely however it has prevented the operator from providing a version of events that might challenge the findings above. It has also prevented the operator from setting out whether they have improved their compliance systems since the MIVR, and to what degree they might have been successful in doing so.
Findings
I conclude, however, that the failure to attend the Public Inquiry is a deliberate attempt to avoid the scrutiny of the Traffic Commissioner. I make this conclusion as it is entirely consistent with the recent approach to communication and engagement with the licensing regime. This operator has failed to respond to all recent communications with it.
The findings of the audit and the MIVR, and the absence of any evidence to challenge those findings, satisfy me that I should record adverse findings under the following sections:
- Section 26 (1)(c)(iii) – Your vehicles or drivers have been issued with prohibition notices in the past five years;
- Section 26(1)(ca) – You or your drivers have been issued with relevant fixed penalty notices in the past five years;
- Section 26(1)(e) – The statement that the vehicles would be given inspections at 8 week intervals has not been fulfilled;
- Section 26(1)(e) – The statement that the vehicles would be inspected/maintained by MM Commercials has not been fulfilled;
- Section 26(1)(e) – The statement that the operator would abide by any conditions which may be imposed on the licence has not been fulfilled;
- Section 26(1)(f) – You have failed to comply with the undertaking on your licence that Vehicles and trailers would be kept fit and serviceable;
- Section 26(1)(f) - You have failed to comply with the undertaking on your licence that drivers would report any defects in writing;
- Section 26(1)(h) – That since the licence was granted there has been a material change in the circumstances of the licence holder, namely that you no longer satisfy the requirement that the provision of the facilities and arrangements for maintaining the vehicles in a fit a serviceable condition is not prejudiced by reason of the applicant’s having insufficient financial resources for that purpose.
The failings identified in paragraphs 17-20 above satisfy me that this is an operator that cannot be trusted to comply with the conditions and undertakings of an operator’s licence. They had previously been put on notice following the unsatisfactory audit in 2022. That so many failings remained at the MIVR in 2024 is of significant concern. On consideration of the guidance provided by the Senior Traffic Commissioner on starting points for regulatory action, as set out at Annex 4 of Statutory Document 10, I place this case within the category of “severe”. There are clear and deliberate acts designed to give the operator a commercial advantage and which compromise road safety.
Whilst these findings are, in themselves, of considerable significance, I do give added weight to the operator’s failure to respond to recent communications and its failure to attend this Public Inquiry. In its decision on 2006/277 Fenlon, the Upper Tribunal stated:
“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.”
Whilst I recognise that this is a Restricted licence holder, I note the comments from the Upper Tribunal in Redsky Wholesalers Ltd v UKUT [2013] UKUT 194 (AAC) indicating that asking the ‘Priority Freight’ and ‘Bryan Haulage’ questions can be helpful in determining the proportionality of approach. I therefore consider the question posed by the Upper 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? I answer in the negative. The evidence before me in respect of this licence – particularly the consistent failure to respond to this office and the DVSA – leads me to conclude that this is an operator that cannot be trusted and that I do not trust.
I go on to consider the question posed by the Upper Tribunal in 2002/217 Bryan Haulage namely, is the conduct such that the operator ought to be put out of business? I answer this in the positive. The negative features of this case are well laid out above and I have no positive features against which to balance.
I therefore make a direction under provisions set out in paragraph 23 that this licence be revoked with immediate effect. I note that revocation under s.26 is a discretionary matter, but I conclude that this is the appropriate action. A suspension or curtailment would result in an operator I do not trust and who, evidence shows, cannot comply with the requirements of an operators licence remaining on the road. I do not consider that to be in the interests of the public or other, compliant, operators.
Disqualification
Having revoked the licence for the reasons set out, I take account of the guidance provided by the Senior Traffic Commissioner at Paragraph 108 of Statutory Document number 10. This is not this operator’s first Public Inquiry. It is a serious case showing persistent operator licence failures over a period of time, with inadequate response. I am mindful that disqualification is not something that should be applied routinely, but there must be a deterrent for those that are considering ignoring communications and directions from enforcement or regulatory authorities. The combination of the appalling features of non-compliance illustrated within the audits, coupled with the failure to respond to communications or comply with my case management directions, is such that I place the disqualification period at the higher end of the scale. I conclude that the licence holding company, and Mr Simon Lofthouse, be disqualified from holding or obtaining an operator’s licence for a period of seven years.
DECISION
The licence is revoked with immediate effect.
M&S Scaffolding (Cumbria) Ltd is disqualified from holding or obtaining an operator’s licence for a period of seven years.
Director Mr Simon Lofthouse is disqualified from holding or obtaining an operator’s licence for a period of seven years.
David Mullan
Traffic Commissioner for the North West of England
08 January 2025