Neutral Citation Number: [2013] UKUT 198 (AAC) Appeal No.  T/2013/13

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL FROM THE DECISION OF KEVIN ROONEY,

TRAFFIC COMMISSIONER for the NORTH EAST TRAFFIC AREA dated 31 January 2013

 

 

 

Before:

Her Honour Judge J Beech, Judge of the Upper Tribunal

Stuart James, Member of the Upper Tribunal

Andrew Guest, Member of the Upper Tribunal

 

 

 

Appellant:

 

TAZ DISTRIBUTION LIMITED &

MEHFUZ AHMED

 

 

Attendances:

For the Appellants: Mehfuz Ahmed appeared in person and representing the First Appellant

 

 

Heard at: Victory House, 30-34 Kingsway, London, WC2B 6EX

Date of hearing: 9 April 2013

Date of decision: 29 April 2013

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

 

IT IS HEREBY ORDERED that the appeal be DISMISSED

 

 

 

SUBJECT MATTER:-   Maintenance; operating in excess of authorisation; good repute; revocation; disqualification.

 

 

CASES REFERRED TO:-  Priority Freight Limited (2009/225); Bryan Haulage (No.2) (2002/217); Bradley Fold Travel Ltd and Peter Wright v Secretary of State for Transport (2010) EWCA Civ 695;

 

 

 

 

REASONS FOR DECISION

 

 

1.           This was an appeal from the decision of the Traffic Commissioner for the North Eastern Traffic Area made on 31 January 2013 when he revoked the company’s operator’s licence under s.27 of the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”) with effect from 23.59 on 1 March 2013 and disqualified the company’s sole director, Mehfuz Ahmed from holding or obtaining an operator’s licence for a period of six months.

 

2.           The factual background appears from the documents and the Traffic Commissioner’s written decision and is as follows:

 

(i)              On 1 April 2009, Aspro Couriers Limited, the holder of a standard international operator’s licence, entered into administration.  The company was subsequently called to a public inquiry and on 30 June 2010, its operator’s licence was revoked for loss of repute and Firdaus Ahmed, who was one of the two directors, lost his good repute as a transport manager and was disqualified from holding or obtaining an operator’s licence in any traffic area.  The other director of the company was David Singer.

(ii)             On 30 December 2009, the First Appellant (“TAZ”) was incorporated.  Its sole director was David Singer.  On 18 January 2010,  Mubina Ahmed (the sister of Firdaus Ahmed) replaced Mr Singer as the sole director.  On 19 April 2010, she applied for a standard international operator’s licence authorising six vehicles and six trailers.   The application was scrutinised at public inquiry because of apparent connections between TAZ and Aspro Couriers including the proposed specification upon the licence of vehicles that had previously been specified on the licence of Aspro Couriers and because several payments had been made to “Aspro” from the bank account of TAZ.  David Neasby, the proposed Transport Manager, also had links with companies operated by Mr Singer.  Ultimately, an interim licence to operate three vehicles was granted in September 2010 by DTC Perrett who attached a condition on the licence prohibiting involvement of the previous management of Aspro Couriers in the operation of TAZ and recorded undertakings for the provision of further bank statements and the commission of a full maintenance audit to be completed by 31 December 2010.

(iii)            The  maintenance audit was completed  by Mr Maclean and Mr Tucker of TESS Ltd on 22 December 2010.  Deficiencies were found in the completion of and action in response to the preventative maintenance inspection (“PMI”) sheets; the driver defect reporting system was not being fully used by drivers and those defects which were reported were not being actioned appropriately or in good time.  On 7 February 2011, DTC Perrett allowed the interim licence to continue, commenting: “I am somewhat disappointed with the shortcomings found by Mr Maclean and Mr Tucker as many of the issues seemed fundamental and easy to spot and should have been pulled up by a reputable Transport Manager/Operator.  In the circumstances, I am prepared to allow the interim to continue and look forward to receiving further reports after the end of March 2011”.  Either shortly before or after 7 February 2011, David Neasby was replaced by Richard Ellins as Transport Manager.

(iv)            A further audit was subsequently submitted and DTC Perrett then granted a licence authorising six vehicles and six trailers with effect from 13 April 2011.  By that stage (on 15 November 2010) one delayed prohibition (“PG9”) had been issued to a vehicle operated by TAZ for a fluid leak from its power steering.

(v)             Between 13 April 2011 and 4 March 2012,  a further six PG9’s were issued to vehicles and trailers being operated by TAZ.  They related to defects which attracted three immediate and five delayed markings.  During this period, (on 5 August 2011), Mehfuz Ahmed (“Mr Ahmed”) replaced his sister, Mubina Ahmed as the sole director of TAZ. 

(vi)           On 6 January 2012, driver Shaun Hennessey was fined £120 and ordered to pay £200 costs at Pontefract Magistrates Court for two offences of failing to make a record of his drivers’ hours.  These convictions were not notified to the Office of the Traffic Commissioner (“OTC”).

(vii)          On 14 March 2012, Vehicle Examiner (“VE”) Mann carried out an unannounced maintenance investigation.  Mr Ahmed was present but Mr Ellins was not.  He was told that maintenance was undertaken by Mark Lindley, a travelling mechanic who used a creeper board to undertake inspections in the absence of an inspection pit.  The change in maintenance provider had not been notified to the OTC.  No PMI records or other maintenance related documents were produced to VE Mann.  He was told that the records were either with Mr Ellins or were in locked filing cabinets at the operating centre, Mr Ahmed not having access to the keys.  He undertook to retrieve all of the records and on 16 March 2012, contacted VE Mann to advise him that the records were ready for inspection.  VE Mann attended the operating centre where he again met Mr Ahmed.  He was presented with only two PMI sheets for each vehicle and trailer specified on the licence.  They were for the months of January and February 2012.  It was impossible for VE Mann to ascertain whether the planned PMI frequencies of six weeks for vehicles and eight weeks for trailers were being complied with.  A week later, Mr Ahmed emailed scanned copies of PMI sheets which purported to be the missing records.  VE Mann was unable to verify the authenticity of the records.  Also on 16 March 2012, VE Mann was shown samples of driver defect report books to demonstrate that the system was in use.  VE Mann noted that reported defects were not always endorsed as having been repaired in the books and in vehicle YX54 BMZ (which he inspected), the book did not have any entries since 9 March 2012.  The driver told VE Mann that he had failed to complete the report for the day.  VE Mann concluded that it appeared that in fact drivers were not completing their defect books until the end of the week which raised questions about the accuracy of the reports. 

(viii)         VE Mann noted  that during the life of the operator’s licence, there had been sixteen roadside encounters with a PG9 rate of 33% for the vehicles and 43% for the trailers.  The annual first time pass rate at MOT was 50% with failure items including brake performance and components (only two vehicles having been presented).  VE Mann concluded that there were clear shortcomings in the maintenance systems leading to concerns over the operator’s ability to maintain its vehicles in a fit and roadworthy state and that TAZ was not complying with its Statement of Intent with regard to maintenance.

(ix)           In response to that report, Mr Ahmed wrote to the OTC and asserted that there had been a communication error on his behalf in relation to the production of PMI records.  He thought that VE Mann had wanted to see the records that corresponded with the dates on the forward planner.  All of the records were however in his sister’s office and available.  He did not explain why, in those circumstances, he did not produce them on 16 March 2012.  However, he had taken on board VE Mann’s advice and had now placed all of the maintenance records in a place which was easily accessible to all parties.  He submitted that all of his drivers had been trained in the use of a driver defect report system and their contracts contained a clause requiring them to use it.  The driver who had been spoken to by VE Mann had been reprimanded and given a final written warning.  He was also going to be trained by TESS Ltd.  All drivers carried spare parts such as bulbs and fuses in their vehicles so that minor repairs could be undertaken whilst on the road. 

(x)             Between 16 March 2012 and 4 October 2012, the date when both TAZ and Mr Ellins appeared at the public inquiry, a further eight PG9’s were issued in respect of vehicles and trailers being operated by TAZ, upon which eight delayed and three immediate items were identified, one being “S” marked.  It was noted that vehicles had also been the subject of roadside checks and prohibitions issued to them when they had not been specified on the TAZ licence.  This gave rise to concerns about the number of vehicles TAZ was in fact operating.  There was in addition, a high degree of movement in the specified fleet with vehicles being de-specified and re-specified without appearing on any other operator’s licence and in the sixteen months between the grant of the full licence and the calling in letters issued in August 2012, only two of five specified vehicles had been produced for annual test. 

(xi)           The first hearing of the public inquiry took place on 4 October 2012.  Mr Ahmed attended for TAZ and Mr Ellins attended on his own behalf.  Both were represented by Gary Hodgson of Ford & Warren solicitors.  VE Mann attended on behalf of VOSA.  Mr Ahmed began by giving some introductory evidence about the business.  He told the Traffic Commissioner that the transport operation had been started by his sister when she bought vehicles from their brother, Firdaus  who had nothing to do with the company.  Mr Ahmed had been involved with the business since 2010 but when his sister resigned as director because of pregnancy, Mr Ahmed became the sole director.  Ms Ahmed continued to be the sole shareholder.  TAZ undertook long distance general haulage for freight forwarders, operating curtain sided trailers.  The trailers were mainly owned by others.  The drivers left the operating centre on a Monday morning, returning on Friday or Saturday.  Mr Ahmed worked in the traffic office, along with the operations manager, Derek Handforth; Mr Ellins attended the operating centre three or four times a week.  The maintenance systems were independently audited on a three monthly basis by TESS Ltd and they undertook tachograph analysis as well.

(xii)          VE Mann then gave evidence, adopting his report.  He referred to the further PG9’s and advised the Traffic commissioner that the first time failure rate at MOT was now 100%.  All of the specified vehicles were different to those specified in March 2012.  Whilst there was a very large undercover facility at the operating centre, there were no underside facilities.  He had not met Mr Ellins at any stage; neither had he spoken to him.  He was surprised when he discovered that Mr Ellins was not at the operating centre when VE Mann returned to inspect the PMI records on 16 March and that the only records produced on that day related to the months of January and February.  The emailed records appeared to show six weekly inspection intervals with few defects recorded which was surprising bearing in mind the high mileage of the vehicles (10,000 to 15,000kms between inspections).  This did not tally with VOSA’s experience on roadside checks.

(xiii)         In cross examination by Mr Hodgson, VE Mann denied that it had been his suggestion that Mr Ahmed email the missing PMI records to him.  He had wanted to see all of the records for the previous 15 months on his return visit on 16 March and he thought that he had made that clear and a reputable Transport Manager should have known what was required.  The driver defect reports were just lying around and a few were pulled out of a drawer.  Those he did see were completed correctly.  He clarified his report.  The driver he spoke to who had not filled out his book for the week of 16 March told VE Mann that he would complete his defect reports at the end of the week.  VE Mann did not know whether that was a universal practice amongst the company’s drivers.  VE Mann accepted that the PG9’s issued on the roadside were for the type of defect that a driver should have seen.  He thought an improvement in the maintenance of TAZ’s vehicles had to be achieved by a team effort, not just the drivers as there were PG9’s which were for mechanical defects such as a split brake hose and a missing secondary locking device to the fifth wheel.  VE Mann advised that with the sort of mileage the vehicles were doing, PMI intervals should be reduced to four weeks. 

(xiv)        Mr Ahmed was then re-called to give evidence.  He referred to a PG9 issued for a defective tachograph and a blown headlight bulb on 25 September 2012.  The driver had failed to notify the office of the headlight bulb but had reported the defective tachograph.  He had been instructed to make manual recordings until he was back at the operating centre where the defect would have been rectified. 

(xv)          Mr Ahmed stated that he had been using the services of TESS Ltd to undertake six monthly audits of the company’s maintenance arrangements and reports for September 2011 and March 2012 were included the inquiry bundle.  The audits included a check for missing maintenance records.  Mr Ahmed stated that whenever he received a PG9 he would write to the OTC to provide an explanation.  A number of letters were produced to confirm his evidence along with a schedule detailing each PG9 and Mr Ahmed’s explanations and comments upon each defect found.  He referred to the “S” marked PG9 issued on 8 June 2012 for a defective anti-lock warning light which the driver had failed to report.  The driver’s employment had been terminated.  That demonstrated Mr Ahmed’s preparedness to take action against drivers if necessary.  Mr Ahmed maintained that all of the PG9’s issued related to defects that had developed whilst the vehicles were out on the road and he relied upon the fact that only one “S” marked PG9 had been issued in support of his contention.  The Traffic Commissioner questioned Mr Ahmed’s explanation for the “S” marked PG9.  He was referred to the prohibition assessment which read: “long standing defect should have been detected and repaired at the last safety check.  Driver recorded defect since 30 April 2012”.  He further pointed out to Mr Ahmed that the vehicle was not specified on the operator’s licence at the time.  Mr Ahmed’s response was that the driver had not handed in his driver defect reports.  He did not comment upon the vehicle being operated without it being specified on the licence.

(xvi)        Mr Ahmed told the Traffic Commissioner that he was prepared to reduce the PMI intervals to four weeks for the vehicles; the trailers were maintained by the relevant hire company.  His maintenance was undertaken by Mark Lindley who worked on his own, bringing his tools in a van.  Pre-MOT preparation and twice yearly audits of the vehicles were undertaken by West Park Commercials.  Trailer hire companies had signed a written confirmation that they would not send out trailers that were in need of repair.  Mr Ahmed found TESS Ltd to be thorough but it was not part of their role to advise upon PG9’s although Mr Maclean helped Mr Ahmed with the drafting of letters to the OTC in response to PG9’s being issued. 

(xvii)       His drivers had received driver CPC training which included training on driver defect reporting and now drivers were spoken to each day on the telephone so that verbal reports of defects could be submitted to TAZ and recorded.  The vehicles were checked at weekends so that the findings could be compared with the drivers defect reports and an audit check was conducted by Mr Ellins.  All new drivers were provided with induction training and an examination.  Shaun Hennessay, who had been with the company since July 2011 and who had been trained in tachograph use was dismissed as a result of his convictions.  Mr Ahmed had not been aware that Mr Hennessay had been prosecuted, hence the failure to notify the OTC of the convictions.  Mr Ahmed did not say whether the fact that two charts were missing in respect of Mr Hennessay had been identified and if not, why not. 

(xviii)      Mr Ahmed used a company called TCI for tachograph analysis and a previous visit by TE Collins in January 2012 had not identified any problems with the company’s drivers’ hours records. 

(xix)        Mr Hodgson took Mr Ahmed through the vehicles that had either been specified or used by the company.  He confirmed that TAZ had utilised his brother’s vehicles.  He had sold vehicles S783 PFL, YX54 BYZ and NX06 EUT, the latter having been sold to Murphy Auto Spares, a scrap yard that was “in the family”.  Vehicles S545 AWP and S34 ALL had either been sold or scrapped.  KUI 5465 had been kept for parts.  XJ57 CZP had been a courtesy vehicle following an accident.  K54 CVG had been written off and had required extensive work.  TX03 FUT was used as a shunter.  He calculated that he had eight vehicles, including the vehicle used for parts.  VE Mann confirmed that the emailed PMI sheets were for seven vehicles all with significantly increasing mileage between inspections.

(xx)          Having considered the evidence at that stage, the Traffic Commissioner concluded that further investigations were needed into the number of vehicles being operated by TAZ at any one time.  Mr Hodgson agreed that TAZ would provide its own analysis of vehicle usage in addition to a report being provided by VOSA.  The Traffic Commissioner then heard evidence from Mr Ellins.

(xxi)        Mr Ellins told the Traffic Commissioner that he had obtained his CPC as part of a re-settlement programme whilst in the army.  He had qualified in 1996 and had not undertaken any refresher courses since.  He was appointed as Transport Manager to TAZ in February 2011.  He was registered as working for TAZ full time and he visited the operating centre three or four days a week in order to check that PMI’s were taking place and that the tachographs were being inspected.  He also looked at the tachographs before they went off for analysis and he looked at the reports when they were returned.  He made sure that the drivers were doing as they were supposed to do and he was aware that drivers had been dismissed.  He said that he did not work Fridays but “with all of this” and the checking of vehicles at weekends, he was going to have to.  He was of the view that the drivers were complying with the driver defect report system although there were occasions when they did not.  He considered that the issued PG9’s were “operational” although with a reduction in the PMI intervals to four weeks, that should pick up some of the defects.  He described the vehicles as looking roadworthy and clean.  He reported anything untoward to Mr Ahmed who listened and to Mr Handforth.  He apologised for not being present when VE Mann attended the operating centre on 14 and 16 March and he confirmed that the maintenance records were now kept in an accessible place whereas before they had been locked away. 

(xxii)       Mr Ellins told the Traffic Commissioner that he worked 20 to 24 hours a week for TAZ which was at variance with the hours declared on his application form (32 hours).  He had worked those hours initially.  He also worked 8 hours a week for another operator who had one vehicle.  He was sure that he had been present when TE Collins had attended the operating centre in August 2011 although the tachograph charts were not readily available because they had been locked away and he had not had the key on him.  When VE Mann attended on 14 March 2012, Mr Ellins did not think much about it.  He had no excuse for not being present when VE Mann returned on 16 March 2012. 

(xxiii)      Mr Ellins stated that the drivers defect reports were checked when they were handed in at the end of the week.  He was asked about the “S” marked PG9 for a defective anti-lock warning light issued on 8 June 2012 when the driver had been reporting it as faulty since 30 April 2012.  Mr Ellins stated that he had not intentionally let a vehicle remain on the road for six weeks with a reported defect and that drivers normally handed in their paperwork at the end of each week. 

(xxiv)     The Traffic Commissioner took Mr Ellins to a delayed PG9 issued to vehicle YX05 EWS for an excessive split in an exhaust hose.  It was presented for test eleven days later when an immediate PG9 was issued for an anti-lock lamp not working and a range of MOT failures.  Mr Ellins acknowledged that “it was not good”.  He was referred to a delayed PG9 issued to S783 PFl, the shunter vehicle on 31 October 2011 for a leaking brake pipe hose coupling.  The vehicle was presented for clearance  eight days later, the vehicle having travelled a further 2,000 miles.  An immediate PG9 was then issued for low service brake efficiency and other items.  The Traffic Commissioner described the situation as shocking.  Mr Ellins did not disagree.

(xxv)       Mr Ellins was asked about keeping up to date with the industry.  He said that he had a Transport Manager’s handbook but with hindsight he should have considered a refresher course.  He did not know about the Operator Compliance Risk Score, however, he was conversant with drivers’ hours. 

(xxvi)     As for Mark Lindley, the maintenance provider, he had been recommended.  The Traffic Commissioner advised Mr Ellins that a maintenance system which relied upon a contractor working without an assistant was an inadequate system.  He was also advised that the testing of brakes once a year during pre-MOT checks was also inadequate.  Mr Ellins admitted that he thought that he was doing his job properly and that the drivers were warned and trained.  He had learnt a lot from the hearing. 

(xxvii)    Mr Ahmed was then recalled.  He described his relationship with the drivers as good  and he was in touch with them a lot during the week.  He had six drivers, one of whom was part time.  He did suffer from a high turnover of drivers.  The company paid towards the drivers CPC training and the drivers contributed £80. 

(xxviii)   The Traffic Commissioner summed up the situation: TAZ had a very bad prohibition history; it sounded like the company had been let down by its employees and by TESS Ltd;  the maintenance systems were inadequate.  Proposals were needed in relation to reducing PMI intervals to ensure that the vehicles were properly inspected and a refresher course for Mr Ellins. 

(xxix)     As for finance, TAZ relied wholly on a “facility agreement” between an individual and the company, although there were no financial documents such as bank statements from the lender produced.  After some discussions and upon learning that DTC Perrett had accepted a similar agreement to establish financial standing upon the grant of the licence, the Traffic Commissioner indicated that he thought that financial standing was satisfied although supporting documentation was required.  The public inquiry was adjourned.

(xxx)       On 29 October 2012, a delayed PG9 was issued to NX06 EUJ and a further “S” marked PG9 was issued on 7 November 2012 for a serious wheel loss incident.  The vehicle, NX06 EUT (which was not specified on the TAZ licence at the time) was found to have the following defects:

a)    Wheel, nearside axle 1: eight out of ten wheel nuts could be turned by hand; new brakes fitted to axle;

b)    Wheel, offside axle 3: two of ten wheel nuts could be turned by hand; new brakes fitted to axle;

c)     Wheel offside axle 1: five out of ten wheel nuts could be turned by hand; new brakes fitted to axle;

d)    Road wheel missing axle 3; new brakes fitted to axle.

 

In response to this PG9, Mr Ahmed wrote to the OTC stating: “this is a hire vehicle from Osset Containers and as far as we were concerned the vehicle was suitable for road use”. The letter goes on to state that the driver did not report any defects with the wheel nuts during the course of that week.  The Tribunal notes at this stage that Mr Ahmed had told the Traffic Commissioner on 4 October 2012 that it was this vehicle that had been sold to a scrap yard called Murphy Auto Spares.

(xxxi)     By a letter dated 8 November 2012, the OTC confirmed the reasons for the adjournment of the public inquiry i.e. that a comparison between the PG9’s issued and the licence at the time of their issue, appeared to show that vehicles were being operated which were not specified on the licence.  Further, twelve vehicles had been presented for annual test and none of them had been specified on the TAZ licence at all or on any other licence.  The Traffic Commissioner was concerned that TAZ was operating more than the six vehicles authorised under the licence.  The company was reminded of the undertaking given by Mr Hodgson that the company would undertake its own analysis of vehicle usage for comparison with that of VOSA.  The company was also put on notice that having considered the “facility agreement” further and bank statements and financial documents which had been produced in support of the facility but which were not in the name of the lender, the Traffic Commissioner was concerned that the agreement could not be relied upon and that accordingly, further evidence of financial standing was necessary.  The reasons for the Traffic Commissioner’s concerns were set out in the letter. 

(xxxii)    On 4 December 2012, VE Mann made an unannounced visit to the operating centre in order to investigate the wheel loss incident.  He spoke to Mr Ahmed who was co-operative.  No vehicles were on site. VE Mann ascertained that PMI intervals were now scheduled four weekly for vehicles.  Maintenance records were now readily available for the declared vehicles.  There were however, no files for the following vehicles: NX06 EUT, KUI 5465 and S783 PFL.  These vehicles had been issued with prohibitions in 2012.  KUI 5465 was present in the yard and appeared to be in use for parts.  Mr Ahmed stated that the other two vehicles were hired in although the wall planner showed the scheduled PMI’s for these vehicles  for the entire year.  Of the maintenance files that were present, the records for three vehicles were incomplete in that there were no PMI’s after September 2012.  Maintenance files for two other vehicles were complete and up to date.  Trailer records were ad hoc and sparse with no file present for trailer C011268 which had been issued with a prohibition on 28 March 2012.  Mr Ahmed stated that he only owned one trailer and the records for that trailer were incomplete between 23 June 2012 and November 2012.  Mr Ahmed stated that it had been off the road during this period.  In relation to missing records generally, Mr Ahmed also stated that Mr Hodgson may have had some of the records in his possession.

(xxxiii)   The driver defect reports were kept in a box in the office but were not easily retrievable.  The current books were not available for the cross referencing of dates and PG9’s. Of the samples examined he noted that a driver had reported a defective loose wing on NX06EUJ between 4 September and 20 September 2012.  Another driver had reported a steering UJ knocking and an exhaust leak on YX54 BMZ between 3 May 2012 and 25 June 2012 and 29 June 2012 and 9 July 2012.  There was no maintenance file for this vehicle.  Whilst these dates predated the public inquiry hearing of 4 October 2012, they appeared to indicate that reports were not being investigated in a prompt and efficient manner.  The annual  first time MOT failure rate was now 60%. 

(xxxiv)  VE Mann returned to the operating centre on 11 December 2012 and was presented with one vehicle for inspection.  Its battery was flat limiting the scope of the inspection.  There was a cut to the near side front tyre and no current driver defect report book in the cab.  VE Mann’s overall conclusion was that it was most disappointing that after such a recent public inquiry, the maintenance system had failed so catastrophically.  Vehicle NX06 EUT had been submitted for brake repairs and each of the road wheels concerned became significantly insecure including a complete detachment.  The vehicle at the time presented a hazard and danger for other road users and the “S” marking of the PG9 was well justified.  There were still shortcomings in the maintenance systems and the operator was not complying with its statement of intent.

(xxxv)    It was the task of VE Mihailovic to investigate the company’s vehicle usage.  He did this by studying VOSA roadside encounters with TAZ vehicles and by analysing tachograph records for the period 1 October 2011 and 30 September 2012.  Between those dates, TAZ had operated fifteen different vehicles.  His analysis was detailed and his conclusions were that on at least eleven occasions, seven vehicles were operated simultaneously.  There were fifty two occasions when the company used its maximum authorisation.  Within those days, there were nine periods, ranging from a few days to several weeks for which tachograph records had not been produced.  Within those periods, vehicle usage varied between one vehicle and six.  There was a possibility that TAZ had exceeded its authorisation on a further nine occasions and had not produced tachograph charts.  With the production of some charts later produced by Mr Hodgson, the final position was that there was 75,862 missing kilometres.

(xxxvi)  The adjourned public inquiry was reconvened on 23 January 2013.  Mr Ahmed appeared on behalf of TAZ and was represented by Mr Hodgson.  Mr Ellins failed to attend.  The Traffic Commissioner was informed that Mr Ellins had in fact resigned earlier that week and that a Mr Rimmington had been appointed in his place.  But he had decided to withdraw from the role the day before the hearing.  TAZ was therefore without a Transport Manager.  Mr Hodgson indicated that Mr Maclean from TESS Limited was in attendance at the hearing having investigated the wheel loss incident.  The Traffic Commissioner ruled that he did not wish to hear Mr Maclean expand upon the virtues of “ lost wheel syndrome”.  Mr Hodgson agreed with that approach as he considered that reaction to the incident and prevention for the future was the key.

(xxxvii) VE Mann spoke to his report. In cross examination he confirmed that Mr Ellins had not been at the operating centre on either the 4 or 11 December.  During the second visit, only Mr Handforth had been present as Mr Ahmed was in India.  VE Mann would have expected an operator to arrange for the transport manager to be in attendance on the scheduled attendance of 11 December. As for the PMI sheets for October to December which were missing from those files which did exist, he was of the view that they should have been returned with the vehicles following their inspection. He was asked about the new maintenance contractors, West Park Commercials.  VE Mann noted that there were some good maintenance contractors closer to the operating centre than Leeds (where West Park Commercials was located) and it was too soon to tell whether they were going to make a difference.  He thought that yellow wheel nut indicators was a good idea.  A book recording drivers’ daily verbal defect reports was not in operation when he had visited on either day in December.  He confirmed that the wheel loss incident gave him some real concern and also expressed the opinion that it was not normal for a fleet of five or six vehicles, to be issued with 3 PG9’s in three months.  He also noted that NX06 EUT had not been specified on the licence at the time of the wheel loss but that it was in the TAZ livery and was on the forward planner.

(xxxviii)    TE Milhailovic also adopted his report.  In cross examination he accepted seeing a couple of letters written by Mr Ahmed addressed to drivers chasing missing charts.  He confirmed that the analysis company that Mr Ahmed had been using did not check for missing mileage or check tachographs for each vehicle.  Mr Ahmed had changed his analysis company to one which now undertook those checks.  The reports which were available from that company did appear to show a reduction in missing mileage. 

(xxxix)  Mr Ahmed was called.  The discovery of so many missing miles had come as a complete shock to him.  TE Collins had not mentioned missing mileage when she had returned the charts in early 2012.  Mr Ahmed complained of problems arising from the requirement that drivers retain their charts for 28 days.  He said, drivers did this and then left for another job without handing in their charts.  He was now using Tachomagic, a local firm.  In their analysis of all charts from 1 October 2012, less than 1,000kms of missing mileage had been identified and that could all be accounted for as maintenance related.  Mr Ahmed was relieved by this improvement.  He was considering the purchase of a scanner so that drivers could scan their tachographs on a Friday evening, with the information being sent to his lap top and then forwarded to Tachomagic.  The PMI intervals had reduced to four weekly and he had changed maintenance provider from Mr Lindley to West Park Commercials which appeared to be an improvement until the wheel loss incident, there having been two or three vehicles presented for MOT which had passed first time.  West Park Commercials had signed a declaration that a torquing procedure would always be followed if work involving brakes and wheels was undertaken.  Mr Ahmed thought that his present contractor was reputable and reliable because he had some very big corporate clients.  However, Mr Maclean had looked at the PMI sheets and noted that some items were missing.  Mr Ahmed was prepared to change contractor again.  Driver defect report books were still kept in each vehicle but now the reports were stapled together by week, although still kept in a box. He had also sent a memo to drivers reminding them of their responsibilities. 

(xl)           Mr Ahmed wanted a transport manager who spent more time in the office.  Mr Ellins had said that he could not commit more time and so Mr Ahmed had advertised for a new transport manager.  There had been a good response and Neil Rimmington had been appointed.  Unfortunately, he changed his mind on the morning of the hearing.  Mr Ahmed did not think that there would be any difficulty in appointing a new transport manager within twenty eight days.  TESS Limited would continue to undertake quarterly audits of the maintenance system and of the tachograph analysis.  Mr Ahmed would follow all necessary advice in order to reduce the company’s PG9 rate.  He had considered undertaking a CPC course himself but had encountered difficulties finding a course which was wheelchair accessible.  He had now found such a course in Leeds and was hoping to start the course in March. 

(xli)          His explanation for operating in excess of authorisation was that the fleet had been old and there had been a lot of breakdowns.  He accepted it should not have happened and said that in order to avoid a reoccurrence, a book was now used to record which vehicles were being used and he now had access to the VOSA website which enabled him to easily specify vehicles on the licence.  The company now had seven tractor units, three were 2006 registrations and one was 2005.  He described the company as “now just getting back on track”.  He asked the Traffic Commissioner to limit any regulatory action to curtailment of the licence to four vehicles.  In that way, Mr Ahmed could demonstrate that the company’s systems could work. 

(xlii)         As for NX06 EUT, Mr Ahmed stated that this was a hire vehicle although it was more or less in the possession of TAZ full time and in the company’s livery.  The vehicle belonged to Ossett Containers which was owned by an old friend of Mr Ahmed’s. 

(xliii)       In answer to questions put by the Traffic Commissioner, Mr Ahmed said that Mr Ellins had been spending four or five hours a week at TAZ whereas Mr Ahmed thought that eight hours were needed.  The Traffic Commissioner pointed out that the VOSA recommendation for a one vehicle fleet was eight hours per week.  Mr Ellins had however been sent on a refresher course which had cost the company £600.  Mr Ahmed was asked whether he had produced the analysis of vehicle usage which Mr Hodgson had agreed would be available for the hearing.  Mr Ahmed said that he had not because he had been too busy.  He explained that he had been able operate more than six vehicles because the company had part time as well as full time drivers.  He accepted that he had not had enough control of what was going on.  He now had six full time drivers who had been with the company since November 2012 and they were continuing with their CPC training.  Mr Ahmed stated that if the licence were to be suspended the impact would be considerable because he paid for diesel weekly and he would have to pay his drivers.  He had three contractors who provided him with work.  Revocation would be catastrophic.

(xliv)       Mr Maclean of TESS Ltd gave evidence.  He produced a further audit report dated 4 January 2013.  His findings were that the standard of PMI sheet completion and the lack of documented evidence of third party repairs subsequent to PMI’s suggested inadequate system control.  A similar finding applied to the overseeing of the driver defect reporting system.  Whilst the system was in use, albeit not to full effect, the quality of the system had slipped below the required standard.  Were TAZ to follow the six very detailed recommendations in the report and to diligently control the maintenance systems in the future then both systems would comply with the required standards.

(xlv)        Mr Maclean’s report also summarised his investigations in relation to the wheel loss incident of NX06 EUT. He was unable to apportion blame between the maintenance contractor who had worked on the relevant wheels prior to the vehicle travelling 1200kms before the wheel loss took place, and the driver.

(xlvi)       In his closing submissions, Mr Hodgson reminded the Traffic Commissioner of the Priority Freight and Bryan Haulage questions (see Upper Tribunal decisions: Priority Freight Limited (2009/225) & Bryan Haulage (No.2) (2002/217).  He submitted that TAZ was a new operation to that of Aspro Couriers with Mubina Ahmed and then Mr Ahmed as sole directors.  Both were inexperienced in road transport, hence the input of TESS Limited.  Mr Ahmed was not frightened to seek expert advice and to spend money although it was a “tight business” in view of the size of the fleet and escalating fuel costs.  The reports produced by TESS Ltd did identify issues but the company had been lulled into a false sense of security by the drivers hours and records investigation undertaken by TE Collins in early 2012.  Mr Ahmed was shocked by the findings of Mr Milhailovic in relation to missing mileage.  Mr Ahmed responded by employing an alternative tachograph analysis company and its reports demonstrate that matters had improved.  This new system had an additional cost to it.  Mr Ahmed was horrified by the wheel loss incident.  He confronted his contractor, required a record to be kept of torquing procedures when they had taken place and arranged for yellow wheel nut indicators to be fitted.  The unusual feature of this wheel loss incident was that the vehicle had travelled over 1,000 miles before the wheel loss took place and as a result, blame could not be apportioned between TAZ and the maintenance contractor but the important feature is that Mr Ahmed took action.  He arranged for Mr Maclean to inspect the contractor’s facilities and no issues arose but a further level of audits were instituted in relation to the contractor’s work.  This was also an additional cost taken on by Mr Ahmed.  As for his Transport Manager, he had invested in Mr Ellins by paying for a refresher course but when asked to commit more hours to the business, Mr Ellins declined. 

(xlvii)      Mr Hodgson submitted that the ingredients of a compliant operation were there.  He asked for a period of grace and offered undertakings in relation to auditing and putting the vehicles through MOT’s.  He suggested that upon the appointment of a new Transport Manager, the Traffic Commissioner may wish to see him.  Mr Hodgson accepted that some “indicator” needed to be given to TAZ but not one that would result in revocation.  A reduction of the fleet to four vehicles would allow Mr Ahmed the opportunity to build up the Traffic Commissioner’s confidence in the operation.  In the alternative Mr Hodgson asked the Traffic Commissioner to consider suspension.

(xlviii)    In relation to finance, Mr Ahmed was now relying on an alternative “facility agreement” with an alternative lender.  The Traffic Commissioner was concerned about the validity of the agreement and his concerns were not addressed by Mr Hodgson who simply asked for another period of grace to regularise the financial position.

(xlix)       In his written decision, the Traffic Commissioner made the following findings of fact: a driver had incurred convictions which had not been notified within 28 days.  Changes to the maintenance arrangements had been made without being notified.  Sections 26(1)(b) and 26(1)(c)(ii) were made out; nineteen prohibitions had been issued within a short period.  Section 26(1)(c)(iii) was made out; records demonstrating that vehicles were being inspected at 6 weekly intervals had not been produced and inspections were not carried out by the stated person.  Section 26(1)(e) was made out; there was a significant number of missing tachograph charts, an employee had been convicted of failing to keep a record, it was clear that the rules on drivers hours and records were not complied with, the large number of PG9’s testified that vehicles were not kept fit and serviceable and the driver defect reports were scant to the say least.  Section 26(1)(f) was made out; finances were not provided in accordance with statutory guidance at either hearing.  Section 27(1)(a) is made out. 

(l)              The Traffic Commissioner described the licence as “troubled from the start”.  It was given a second chance by the Deputy Traffic Commissioner at the beginning and audits had occurred.  VOSA investigations took place in early 2012.  The operator had had plenty of pointers to keep the operation on line.  He was troubled by the way in which Mr Ahmed had sought to persuade him that TAZ had access to adequate finances.  He doubted whether the second agreement was ever intended to be drawn upon and the agreement was deficient in a number of ways.  The Traffic Commissioner concluded that the agreement was a fabrication to overcome the financial standing hurdle.  As for operating in excess of authority, Mr Ahmed had clearly told the Traffic Commissioner during the October hearing that he had only used five vehicles there being a margin of one to cover breakdowns.  It was clear from the findings of VE Milailovic that six vehicles were frequently used with seven in use on a minimum of eleven occasions and quite likely much more frequent than that.  In the January hearing, Mr Ahmed told the Traffic Commissioner that he was using more vehicles than authorised as a result of an administrative oversight which occurred because he had spare vehicles in the yard.  The Traffic Commissioner found it highly unlikely that Mr Ahmed would have spare drivers sitting alongside the spare vehicles.  He found that putting an additional vehicle on the road needed a considerable degree of organisation. It beggared belief that it could happen by accident on more than eleven occasions in the course of a year.  The Traffic Commissioner concluded that operating in excess of authorisation was not a one-off oversight but a systemic abuse of the licence authority.

(li)             As for vehicle NX06 EUT, Mr Ahmed told the Traffic Commissioner during the October hearing that the vehicle had been sold, having been removed from the licence on 14 May 2012.  The uncontested analysis of the tachographs showed that the vehicle was used consistently from 15 May to 14 June 2012 and was encountered on a roadside check on 26 June 2012.  It was included on the maintenance wall planner of TAZ for the whole year with inspections marked off as complete.  On 7 November 2012 (when it lost its wheel) the vehicle was displaying an invalid operator’s licence disc in the name of TAZ, the vehicle having been removed from the licence several months earlier.  Following the wheel loss incident, Mr Ahmed told the vehicle examiner that the vehicle had recently been hired in and he had expected the hire company to ensure that the vehicle was safe.  This was inconsistent with Mr Ahmed then becoming angry with his own maintenance provider about the wheel loss.  If his account was correct, then he should have taken the matter up with the hire company.  The vehicle was of course in full TAZ livery.  The Traffic Commissioner concluded that it may well be that TAZ had an agreement with Ossett Containers to supply the vehicle but it was clearly being operated by TAZ and Mr Ahmed’s response to the traffic examiner was an attempt to shift the blame onto someone else.

(lii)            Mr Ahmed had blamed his drivers for the missing mileage and his tachograph analysis company for not providing a missing mileage report.  The Traffic Commissioner concluded that 10% of missing mileage should have been apparent to any operator and to the transport manager.  It did not require sophisticated analysis but a genuine interest and involvement in the compliant running of the business. The Traffic Commissioner was also critical of the use of a mobile fitter working alone to provide adequate maintenance.  This was unacceptable, particularly when there were no under-vehicle inspection facilities.  The Traffic Commissioner noted however, that this system would have been “cheap”.  The Traffic Commissioner noted that Mr Ellins should have been helping Mr Ahmed but he was working insufficient hours.

(liii)          In the positive, the Traffic Commissioner accepted that Mr Ahmed tended to respond quickly when matters were pointed out to him.  He had invested in regular maintenance audits and in tachograph analysis.  He had paid for Mr Ellins to attend a refresher course. 

(liv)          The Traffic Commissioner asked himself what had changed since DTC Perrett gave TAZ a second chance in 2011? He had received specialist support and had made choices about maintenance providers and drivers’ selection and training.  The Traffic Commissioner was struck by a comment made by Mr Maclean that the operator could improve “if he sustained the effort” and that was the difficulty as far as the Traffic Commissioner was concerned.  Mr Ahmed responded when things went wrong but he did not make the necessary systemic improvements for the changes he made and for improvements to be sustained.  Mr Maclean’s audit in January 2013 highlighted the same basic deficiencies that were present when the licence started.  The Traffic Commissioner concluded that nothing would change in the future and that he could not trust Mr Ahmed to be compliant in the future.

(lv)           The Traffic Commissioner summarised his findings and concluded that TAZ needs to be put out of business.  The saving grace was that the wheel loss on 7 November 2012 had not caused injury or worse.  Mr Ahmed had lost his good repute and the licence was revoked under s.27 of the Act.  He further disqualified Mr Ahmed  finding that Mr Ahmed had sought to avoid his responsibilities and blame others.  He needed a period of reflection to consider what went wrong and what he could do differently in the future.  The disqualification period was six months.

 

3.           At the hearing of this appeal, Mr Ahmed appeared on behalf of TAZ and on his own behalf.  He began by accepting that at the time of the public inquiry, TAZ was not where it should have been in terms of systems and compliance.  He said that he was upset that during the course of the second hearing, following the wheel loss incident, the Traffic Commissioner did not hear any evidence about the cause of the wheel loss incident.  Mr Ahmed submitted that the Traffic Commissioner had made his mind up about the incident before he had heard evidence from VE Mann and Mr Maclean.  Mr Ahmed referred the Tribunal to a comment that the Traffic Commissioner made that “wheels do not just fall off” vehicles.  It was pointed out to Mr Ahmed that Mr Hodgson did not in fact take issue with the comments that the Traffic Commissioner made about “wheel loss syndrome” and not wanting to hear evidence about it.  Mr Hodgson had submitted that Mr Maclean would give evidence about the result of his investigation (which he did) but the important issue was Mr Ahmed’s reaction to the incident and the systems he had put in place to ensure that the incident was not repeated.

4.           Mr Ahmed took the Tribunal through his response to the incident.  He took responsibility for the incident as much as he could and instigated investigations as to how and why it had happened.  He spoke to Mr Paylor of West Park Commercials and required him to sign an undertaking that he would report and record all occasions when wheels had been torqued.  He had arranged for wheel nut indicators to be fitted and he reiterated to the drivers the policy in relation to drivers defect reporting and walk round checks.  He took the Tribunal to a Drivers Memo dated 22 January 2013 which had been provided to each driver.  The Tribunal observes at this stage that the document does not refer to wheels at all and was dated approximately ten weeks following the wheel loss incident had taken place, that is the day before the second day of the public inquiry.   As for NX06 EUT not being specified on the licence at the time of the incident, Mr Ahmed accepted that he had not been in control of his business and that it was only at the conclusion of the first day of the public inquiry that he realised the operation’s shortcomings and he had then taken full control.  The Tribunal observes at this stage, that the wheel loss incident occurred just over a month after that hearing. 

5.           Mr Ahmed denied that in having NX06 EUT on the road on 7 November 2012, that he was operating in excess of the licence authorisation.  He had in fact sold the vehicle to Ossett Containers and then entered into a long term hire agreement with that company.  He had sold the vehicle because he had needed the money and had then hired it back.  He accepted the vehicle was in fact within his fleet hence its presence on the forward planner.  He denied however that the vehicle was still registered to TAZ.  It was pointed out to Mr Ahmed that he had originally stated that the vehicle had been sold for scrap and that he had not produced the hire agreement with Ossett Containers to confirm the position. 

 

6.           Mr Ahmed denied that he had sought to shift blame for the operation’s failings upon others and in particular, in relation to the wheel loss incident.  He did not however deny that he had said to the vehicle examiner that he had expected Ossett Containers to supply a vehicle which was safe and he accepted that the Traffic Commissioner could have found that for all intents and purposes vehicle NX06 EUT was in fact a TAZ vehicle. 

 

7.           The Tribunal was then taken through aspects of VE Mann’s evidence: at the January hearing, VE Mann had accepted that there had been an improvement in the systems since his March 2012 investigation because in December 2012, vehicles were now being specified on the operator’s licence.  Mr Ahmed also had maintenance files to hand for the vehicles that were specified and the drivers’ defect reports were in a box.  VE Mann also noted however that maintenance files for vehicles which had attracted PG9’s were not produced to him.  Mr Ahmed disputed that this was the case.  In relation to VE Mann’s evidence that recent PMI sheets were missing from the files which were produced and that his advice to operators was that the sheets should be returned with the vehicle, Mr Ahmed explained that the vehicles were inspected on Saturdays away from the yard and then returned without the sheets because there was no one at the yard on Saturdays and Mr Ahmed did not like the sheets being either left in the vehicle whereupon the vehicle was taken out by a driver first thing on Monday morning with the sheet in the vehicle; neither did he like having the sheets posted through the letter box at the operating centre.  The arrangement was that the sheets were collected by him within forty eight hours of the inspection.  We observe at this stage, that Mr Ahmed’s account does not explain why sheets for September onwards were not in the files that were produced in December 2012.  Mr Ahmed also took us to a passage in the transcript where it was put to VE Mann that the MOT pass rate for TAZ vehicles had improved since West Park Commercials were undertaking the PMI’s.  VE Mann accepted that this was Mr Ahmed’s view but it was too soon to validate an improvement in the pass rate.  Mr Ahmed averred that the MOT rate had improved and that in itself indicated an improvement in the maintenance systems.  Mr Ahmed also pointed to VE Mann’s evidence that whilst vehicles were attracting PG9’s they were being inspected.  Mr Ahmed submitted that whilst PG9’s do indicate a shortfall in maintenance, this was not a situation where he was making an assessment about defects found and whether they should be repaired or not. The Tribunal indicated that PG9’s were indicators of poor maintenance and lack of pro-activity on the part of the operator and demonstrated shortcomings in driver defect reporting.  The number of PG9’s for such a small fleet was “extraordinary”. 

8.           Mr Ahmed reminded the Tribunal that he had instructed a new  tachograph analysis company and since October 2012, there was very little missing mileage and the reports were much better.   He could not account for the missing mileage identified by TE Mihailovic.  He had a new driver defect reporting system involving daily calls to the drivers so that they could give verbal reports of defects as well as written ones in their books.

9.           Mr Ahmed stated that he had left Mr Ellins to do too much and he had lacked commitment.  When he commenced in his role as Transport Manager, Mr Ellins worked twenty hours a week for £500 per month.  His hours then reduced to four to five hours a week.  He had of course, been sent on a refresher course which Mr Ahmed told the Tribunal cost £800.  Mr Maclean’s conclusions in his January report were that Mr Ahmed was spending the necessary money to ensure compliance and that he had the willingness to put things right.  The Tribunal reminded Mr Ahmed of the Traffic Commissioner’s concerns about his ability to maintain compliance in the future.

10.        Mr Ahmed then turned to the issue of finance.  He was confused about this because he could not understand why Deputy Traffic Commissioner Perrett could be satisfied about the validity and reliability of a facility agreement when granting the licence and yet the Traffic Commissioner was not so satisfied with the same form of document.  The Tribunal pointed out to Mr Ahmed that the agreement, which was for a very significant sum did not require any security, the sum concerned had to be drawn down in one amount and that could be done within the following three years when there was no guarantee that the sum would still be available; the sum had to be repaid in one sum also within the next three years; there were conditions precedent to the facility being provided and those precluded the finance being “readily available”, that the section which should have stated the rate of interest only stated that it would be over the relevant bank’s base rate.  Mr Ahmed understood those points but argued that the Traffic Commissioner should have given him some more time to rectify finances or should have explained to Mr Ahmed what was needed.

11.        By reason of all of the points that he made to the Tribunal, Mr Ahmed submitted that the Traffic Commissioner was wrong to find that Mr Ahmed had lost his good repute.  He had made so much effort and was not afraid to make changes for example, he had got rid of his Transport Manager.  He could be trusted not to operate more vehicles than authorised because he had a book in which he kept a record of the vehicles being used on a daily basis and he maintained a chart with the work being undertaken by the vehicles, the location of the vehicles  and the identity of the driver.  He accepted that regulatory action had to be taken but had asked for a curtailment to three vehicles so that he could get himself back on track (the request had in fact been for a curtailment to four vehicles). 

12.        As for Mr Ahmed’s disqualification, that decision was wrong in principle and in the alternative, it would keep him out of the industry until the end of August 2013 which was too long.

13.        The Tribunal is satisfied that all of the Traffic Commissioner’s findings were well made out.  This was a bad case in which there were many  and significant maintenance failings with an unusually large number of PG9’s issued to a small specified fleet operated by a company which was receiving considerable independent assistance from TESS Ltd and from VOSA.  Of course, a number of the PG9’s were issued to vehicles operated by TAZ which were not specified on the licence but that highlights the second significant failing of TAZ and/or Mr Ahmed, namely the operation of a number of vehicles which were not specified on the licence.  The Traffic Commissioner’s finding that the operation of vehicles in excess of authorisation on the scale identified amounted to a systemic abuse of the licensing process is well made out on the evidence.  The extent of that systemic abuse was difficult to gauge by reason of the large amount of missing mileage identified. Mr Ahmed’s explanation for such unlawful operation did not withstand close scrutiny.  The operation of vehicle NX06 EUT was an example of both maintenance failings and operation in excess of authorisation, not only prior to the 4 October 2012 but between that date and 23 January 2013.  This was the very period when the company’s operation was under close scrutiny, yet NX06 EUT was operated without being specified on the licence and  then attracted an “S” marked PG9 for a very serious maintenance issue, namely the loss of a wheel.  We are satisfied that this demonstrated that TAZ was either unable or unwilling to operate compliantly if there was a competitive or financial advantage not to do so and that Mr Ahmed’s varying accounts of the history of the vehicle demonstrated a lack of candour to say the least in relation to that vehicle and more likely demonstrated deliberate attempts to mislead either a Vehicle Examiner or the Traffic Commissioner as to the true licensing and operating position of the vehicle.  Those attempts were akin to dishonesty and the Traffic Commissioner would have been entitled to make such a finding.

14.        The operation of NX06 EUT was only one of the many vehicles that were operated in excess of authorisation by TAZ.  That finding alone justified revocation of the licence, the Traffic Commissioner having little if any basis to be able to trust TAZ in relation to future compliance.  In addition, the very fact that the maintenance position was so bad when TAZ was receiving significant external assistance could not have given the Traffic Commissioner any basis for finding that the company would operate compliantly in the future with on-going external assistance and a new Transport Manager.  Mr Ahmed had an unrealistic view as to how many hours a Transport Manager needed to dedicate to the fleet and in all likelihood financial constraints would prevent a Transport Manager from putting in the hours that were required.  We are satisfied that there was no basis for the Traffic Commissioner either finding that the company could be trusted in the future to run a compliant operation and that his determination that the operator’s licence should be revoked cannot be faulted.  Further, financial standing was not satisfied and the Traffic Commissioner’s determination that the loan facility or agreement which was relied upon to establish financial standing was a fabrication was not one that was plainly wrong.  Mr Ahmed complained that further time should have been given to him to rectify the position.  However, with a finding that the agreement was effectively a “sham” and by reason of all of the other findings made by the Traffic Commissioner we do not agree that further time should have been given.  The Traffic Commissioner’s determination that the licence should be brought to an end was plainly right.  As for the disqualification of Mr Ahmed, we cannot criticise the Traffic Commissioner’s reasoning for imposing a disqualification and the period of six months may be seen to be lenient in the circumstances.  Findings of fabrication of evidence and systemic abuse of the licensing process justify disqualification and for a longer period than that in fact ordered. 

 

15.        We cannot find that reason and law impell us to take a different view from that of the Traffic Commissioner on any issue (as per the test enunciated by the Court of Appeal in the case of Bradley Fold Travel Ltd and Peter Wright v Secretary of State for Transport (2010) EWCA Civ 695 and in the circumstances, this appeal is dismissed.

 

 

Her Honour Judge J Beech

29 April 2013