Traffic commissioner (TC) for London and the South East, Sarah Bell, took a “step too far” when she revoked a scaffolding company’s O-licence, a judge has said.
Upper Tribunal judge Mark Hemingway found that a more suitable decision would have been to curtail SC Cousins Scaffolding’s O-licence from three vehicles to two for six months, as it was likely that the operator could be compliant in future.
The Billericay, Essex-based business was called to a public inquiry in May 2017 after a number of concerns were identified by the DVSA following a vehicle stop in April 2016. One person travelling in the cab was not seated, and was hence unable to wear a seat belt, and analysis of the tachograph data revealed that the tachograph and card had never been downloaded.
Director Paul Seabrook told DVSA examiners that some downloading had taken place, but acknowledged that it should have been carried out more frequently. He also admitted that he had not appreciated the full extent of the drivers’ hours requirements.
There were further concerns that the company had failed to inform the Office of the Traffic Commissioner about criminal convictions handed out following the collapse of some scaffolding in 2014. It had breached regulations 4 and 5 of the Work at Height Regulations 2005 and the directors were fined and ordered to pay court costs.
In coming to her decision earlier this year, the TC said the company had been given “a huge amount of advice” by the DVSA, which it had failed to take on board.
She also noted that a driver, who had failed to take a weekly rest period at the time the truck was stopped in 2016, had still received no training on drivers’ hours obligations, tachographs or the Working Time Directive.
Bell said there had been an “almost instantaneous breach of trust” by the operator.
In the appeal to the Upper Tribunal, it was argued that the TC had wrongly taken into account the convictions, as they were neither notifiable or admissible. However, the judge said there was no evidence that the company had taken an informed, deliberate or dishonest decision to avoid notifying the OTC.
SC Cousins Scaffolding also claimed that the TC’s decision was disproportionate, which the Upper Tribunal agreed with, and had failed to conduct a proper balancing exercise.
The judge said the case, which might have potentially had unsafe consequences, was not the most serious of its type.
He said: “In our view, what emerges is not a picture of dishonesty or the deliberate flouting of rules and requirements. What does emerge is certainly properly to be characterised as incompetence along with a lack of diligence in ascertaining what rules are applicable in relation to driving, notwithstanding that the company is involved in scaffolding rather than transportation for profit.”
He said O-licence curtailment would mark the seriousness of the firm’s failings.
