Decision for Climax Scaffolding Ltd (OC0296958)
Source: gov.uk (2025-09-03)

Written confirmation of the decision of the Traffic Commissioner in the North West for Climax Scaffolding Ltd

IN THE NORTH WEST TRAFFIC AREA

CLIMAX SCAFFOLDING LTD – OC0296958

WRITTEN CONFIRMATION OF THE VERBAL DECISION OF THE TRAFFIC COMMISSIONER

Decision

Under provision of Section 26 of the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”), I direct that this licence is revoked with effect from 23:45 on Tuesday 21 October 2025.

This operator, Climax Scaffolding Ltd, appeared before me at public inquiry on Thursday 14 August 2025 and was in attendance through sole director Mr. Phillip King, supported by Mr. Tony Byrne. The operator was represented by Ms. Lucy Grainger, Solicitor with Backhouse Jones Ltd. Traffic Examiners John May and Stuart Barnes were in attendance to provide evidence for DVSA.

This Restricted licence was granted on 12 December 2001 and is authorised for eight vehicles. The operating centre is given as Old Thomas Lane, Liverpool L14 3NA, and inspections are stated to be undertaken each six weeks by Liverpool Logistics Ltd.

Background

This company came to DVSA’s attention as a result of a roadside stop on 16 October 2024 where it was identified that the driver, Mr Daniel Rodaway, was using a vehicle with a defective tachograph and had breached the rules for the recording of driving. He was issued with a £300 fixed penalty notice, and an Immediate prohibition was also imposed due to service brake performance.

Subsequently, DVSA conducted a follow up visit with the operator, and the resulting report was concluded with a rating of “Report to OTC”. This rating was due to a wide range of shortcomings including:
- None of the vehicle units had been locked in or downloaded by the company.
- Vehicles had exceeded the deadline for downloading by margins ranging from 347 days to 1,164 days.
- No driver cards had been downloaded, at all, during the control period of 01 April 2024 and 31 October 2024.
- Timesheets did not record breaks or rest periods.
- The company does not have a process for downloading driver cards or checking drivers’ data.
- None of the drivers had received training on the use of driver cards.
- The Traffic Examiner had identified gaps in operator knowledge, systems, documentation and analysis and concluded that there was not a responsible person to lock and download VU data or analyse driver data.
- 141 offences were found during the control period, including 128 offences of permitting drivers to drive vehicles without using the tachograph or digital cards.
Additionally, the operator had a Red rated OCRS score, a 100% Mechanical Prohibition Rate (against a national average of 22.91%), and a Drivers’ Prohibition rate of 100% (against a national average of 2.50%). Finally, the fail rate at annual test was 17.86%, as compared to a national average of 8.32%.

As a result, the operator was called to public inquiry to understand whether there have been failures to comply with the undertakings and conditions of the licence, and whether there has been a material change in that the operator is no longer ‘not-unfit’ to hold an operator’s licence.

The Public Inquiry

Ensuring Compliance with Drivers’ Hours and Tachograph Rules

The public inquiry revisited the 16 October encounter and the subsequent report provided by TE John May. Additionally, the operator provided more recent records which TE May assessed in advance of the inquiry. TE May helpfully provided a ‘Report for PI’ setting out his findings.

In evidence I found Mr. King and Mr. Byrne to be open, honest and credible witnesses. There was very little, if any, disagreement with the findings within the ‘Visit Report’ and the updated ‘Report for PI’. I had been initially concerned that all the interactions with DVSA were completed by Mr. Byrne, rather than Mr. King. As sole director for the business it was Mr. King who was trusted with the licence, but I accept that the personal circumstances of Mr. King were such that Mr. Byrne needed to assist.

What is of concern is that is that both Mr. King and Mr. Byrne were clear that they were not equipped to manage drivers’ hours. They were unaware of the requirements, and whilst Mr. Byrne had been on a recent course he stated that he was still learning; that there was much more to the requirements than he had anticipated; and that he was doing his best. Mr. King, worryingly, had not attended any training. Mr King had assumed things were fine and was disappointed when DVSA identified the shortcomings. There were, however, no systems established by Mr. King to ensure things were fine and no effective oversight by him.

The findings of DVSA, at paragraph 4 above were not challenged, but I was advised that a new system – Aquarius – had been implemented, and drivers had received a toolbox talk from Mr. Byrne. Assessment of newer records identified, however, that whilst Missing Mileage Reports and Driver Infringement Reports were printed out, nothing was done with them. There were no explanations recorded, sections entitled “Debrief Comments”, “Declaration”, and “Signature” were all blank. Paperwork was apparently in place, but there were still no systems to identify and manage risk. Significant gaps therefore remained despite the engagement with an external transport manager, which I was told commenced in June 2025.

Ensuring Vehicles are maintained in a Fit and Serviceable Condition

As stated above, the OCRS for this operator is red, and the statistics relating to roadside encounters and annual test are worse that the national averages. Accordingly, the operator was asked to provide maintenance records for review ahead of the public inquiry.

Inspection reports showed a number of minor issues with the completion of the sheets, but more significant issues with brake testing and wheel management. Brake tests showed vehicles did not meet the weight threshold to be considered laden, and some showed significant imbalances (31%, 33% and 36%) with no reference to adjustment and retest. The operator was unaware that anything other than “Pass” needed to be considered.

Driver Defect sheets had been maintained, but this provided evidence that those reported defects were not being managed. One defect was reported 16 times between 17 February and 25 June with no record of an authorised person rectifying it. It was eventually recorded as rectified by “Tony.Climax” (identified as being Mr. Byrne) even though Mr. Byrne didn’t do the actual rectification work. A similar issue occurred with a driver’s internal door panel. That was reported by the driver on 13 occasions between 17 February and 01 May. These were the most extreme examples but were not the only ones.

Mr. King blamed his maintenance provider for the poor annual test results. He stated that someone needed to monitor them – failing to grasp that it was actually his responsibility to do so. The relationship with the service provider was not being adequately managed, and the maintenance systems were not working. This was clearly reflected in the test records, but like the drivers’ hours reports, never analysed and never improved.

General

Mr. King accepted that there had been shortcomings, and that more work was to be done. He placed trust in others and set out a range of steps going forward. I was told that an external transport consultant had been engaged, training had been undertaken by drivers, and Mr. Byrne had been best placed to manage transport operations. Mr, Byrne had now moved away from other duties within the business so he could concentrate on transport. I was told of a willingness to acknowledge and correct the remaining issues.

Decision

There are some positives in this case. The implementation of Aquarius, and the engagement with a transport consultant has provided an opportunity to obtain records and indicates an upward trajectory. I also note the willingness of the operator to improve. Drivers have received training, and vehicle units and cards are now being downloaded, with reports produced.

But even these positives identify issues; The consultant was only engaged in June 2025; why not back in October 2024 when the main issues were identified at the roadside, or in February 2025 when the DVSA provided their report? Drivers’ have received training, but Mr. King has not and, further, has not – even as at the day of the hearing – sought out or signed up for any training. I have some sympathy for Mr. Byrne. He has been tasked with roles and responsibility that he is ill-equipped to do and has not been sufficiently trained to do. He’s clearly trying his best, but his knowledge remains lacking. The provision of the reports, and the existence of a contract with a maintenance provider are each useless unless the records are analysed with appropriate action taken to ensure compliance.

The negatives in this case are lengthy. As set out above, the records from the roadside and annual test, coupled with the absence of systems, suggest that the lack of incidents on the road is more likely than not down to good fortune rather than design. Mr. King has failed to recognise his own responsibilities and continued to blame others throughout the inquiry. I heard repeated references to the fact that Mr. King was unaware of, or didn’t realise, a requirement existed. He delegated responsibilities to others without providing them the training or supported needed, and without subsequent oversight and review.

The historical failings are significant, and whilst I have regard to the attempts made to rectify, huge gaps remain. The undertakings of an operator’s licence are not aspirational; they are mandatory requirements to be maintained at all times. The undertakings are to have proper systems in place. Systems go beyond the production and storage of paperwork – they require review, analysis, management and action when issues are identified.

On review of the evidence before me, and the responses provided by the licence-holder, I make adverse findings under provision of the following legislation:

26(1)(c) – that during the five years ending with the date on which the direction is given there has been a prohibition of the driving of a vehicle of which the licence-holder was the owner when the prohibition was imposed

26(1)(ca) - that during the five years ending with the date on which the direction is given there has been a fixed penalty notice issued to a servant or agent of the licence-holder

26(1)(f) – a failure to comply with the undertaking to have appropriate systems in place to ensure that motor vehicles and trailers, including hired vehicles, are kept fit and serviceable

26(1)(f) – a failure to comply with the undertaking to have appropriate systems in place to ensure rules on drivers’ hours and tachographs would be observed

26(1)(h) – that since the licence was issued there has been a material change in any of the circumstances of the licence-holder that were relevant to the issue of the licence, namely that the licence holding holder is no longer considered to be “not-unfit” to hold an operator’s licence.

On consideration of the Senior Traffic Commissioner’s starting points of regulatory action, as set out at Annex 4 of Statutory Document 10, I place this operator within the “Severe to Serious” category. I make this conclusion as I consider there have been persistent operator licence failures with inadequate response. The failure to use vehicle units and drivers’ cards for a significant period, and to remain in a position where there are gaps in that system, pushes this case closer to the Severe end of the scale.

In consideration of regulatory action I am advised by the operator that any action beyond a small curtailment, of two vehicles, would be significant and could put the company out of business due to the type of tendered work. A suspension would most certainly be fatal to the business.

2013/007 Redsky Wholesalers Ltd invites a Traffic Commissioner to consider the ‘Priority Freight Question’ in cases relating to Restricted licences. That question, posed in 2009/225 Priority Freight was, “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, and the time that has passed since these issues were first brought to the attention of the licence-holder, is that it has not been sufficiently motivated to take corrective action. I was asked by Ms Grainger to consider that the failures are down to lack of knowledge rather that malicious intent. I agree to an extent, but the lack of knowledge is a significant absence, and the slowness to react and the lack of progress is a concern. I consider that Mr. King has buried his head from his responsibility.

The Upper Tribunal reinforced in the appeal of 2014/024 LA & Z Leonida t/a 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… As with any regulated environment, a duty holder cannot expect to argue ignorance of the operator licence requirements”.
Mr. King has not yet fully taken responsibility and has come to the public inquiry with promises of future improvement. He had made a similar statement to DVSA in response to the investigation report, but those promises fell short.

On consideration of all the facts I conclude that revoking the licence, with two month’s notice, strikes the balance between providing justified and proportionate regulatory action, and providing the operator with an opportunity to survive. I am told that a period of suspension, to allow time for the operator to develop and implement systems without the distraction of managing vehicles and drivers, would be fatal to the business. This revocation, on the other hand, allows operations to continue – for now – but places the burden on the operator to reapply and provide evidence within that application which satisfies the statutory requirements.

The Senior Traffic Commissioner reminds us, at paragraph 28 of Statutory Document 10, of the requirement to make decisions which are commensurate with the circumstances of each individual case and the purposes of the legislation, quoting 2013/046 Shearer Transport Ltd:
- “any regulatory action by the traffic commissioner should not be punishment in itself, but designed to assist in the promotion and achievement of the legislation. Clearly, such action can include an element of deterrence in order to prevent and discourage conduct that undermines the licensing regime.”
Any application will be considered on its own merits, but I would propose that Mr. King undertakes relevant training and that the operator would benefit from the support of a qualified transport manager with statutory responsibilities. An application for a Standard licence would not be discouraged.

In cases of revocation I am required to consider whether disqualification is appropriate, In this instance I conclude that there has been no attempt to deceive I consider the failures - whilst significant, long standing, and a risk to road safety – were a result of lack of knowledge. That knowledge gap can, I believe, be filled. I therefore hold back from any direction of disqualification in this case.

David Mullan

Traffic Commissioner for the North West of England

21 August 2025