Neutral Citation Number: [2015] UKUT 457 (AAC) Appeal No.  T/2015/24

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of

Nick Jones, Traffic Commissioner

for West Midlands of England dated 25 March 2015

 

 

 

Before:

Her Honour Judge J Beech, Judge of the Upper Tribunal

Leslie Milliken, Member of the Upper Tribunal

Stuart James, Member of the Upper Tribunal

 

 

Appellant:

 

 

Mohammed Arif

 

 

Attendances:

For the Appellant: Mr Marsh, Transport Consultant of The AITAC Consultancy.

 

Heard at: Field House, 15-25 Bream’s Buildings, London, EC4A 1DZ

Date of hearing: 4 August 2015

Date of decision:   11 August 2015

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

 

IT IS HEREBY ORDERED that the appeal be DISMISSED with immediate effect

 

SUBJECT MATTER:-  The identity of the operator of a PSV; whether the Traffic Commissioner was correct to find that the Appellant was the employer of the driver of the vehicle; whether revocation and disqualification proportionate.

 

 

 

CASES REFERRED TO:-  Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport (2010) EWCA Civ 695; Priority Freight (2009/225); Bryan Haulage (No.2) (2002/217); 2004/377 EA Scaffolding & Systems Limited & 2004/426 EA Contract Services Limited; Interlink Express Parcels Limited v Night Trunkers Limited & Another (2001) EWCA Civ 360; George Gollop (2002/09); Fenlon (2006/227); The Tachograph Centre Ltd (2003/62).

 

 

REASONS FOR DECISION

 

 

1.            This is an appeal from the decision of the Traffic Commissioner for the West Midlands of England (“TC”) made on 25 March 2015 when he revoked the restricted PSV operator’s licence held by the Appellant (“Mr Arif”) with effect from 23.59 on 11 April 2015 and disqualified him from holding or applying for an operator’s licence for a period of two years.  The orders were made as a result of adverse findings made under s.17 of the Public Passenger Vehicles Act 1981 (“the Act”).  At the same time, the TC revoked the restricted PSV operator’s licence of Mohammad Maroof trading as NAS Travel and disqualified him from holding or applying for an operator’s licence for twelve months.  Mr Maroof has not appealed that decision.

 

Background

 

2.            The factual background to the appeal appears from the documents, the transcript and the TC’s written decision.  Mr Arif was granted a restricted PSV operator’s licence in 2003 authorising two nine to sixteen seat vehicles.  His main occupation was private hire and he had traded in a variety of trading names including Ace Cars; Able Radio Cars; Kingstanding, Beeches & Hamstead Cars, Kingstanding & Erdington Cars; Kingstanding Midland Regency and Choice Travel Solutions. 

 

3.            In September 2010, Mr Arif, then trading as Able Radio Cars, was called to a public inquiry at which adverse findings were made by the TC under s.17(3)(aa) of the Act (breach of undertakings) and s.17(3)(c) (prohibitions).  Mr Arif gave an undertaking that his maintenance systems would be the subject of independent audit for two years and that his vehicles would undergo effective pre-MOT inspections with records kept for at least two years. 

 

4.            Mr Arif, when trading as Kingstanding and Erdington Cars was called to a second public inquiry on 10 February 2014 as a result of the issuing of further prohibitions and an unsatisfactory  maintenance report.   The TC was concerned that Mr Arif was no longer of good repute or of appropriate financial standing.  In the result, adverse findings were made under s.17(3)(a) of the Act (failing to adhere to statements of fact when applying for a licence); s.17(3)(aa) and s.17(3)(c) (see above).  Mr Arif’s operator’s licence was suspended from 17 February 2014 to 1 May 2014.

 

5.            In the early hours of 8 March 2014, Traffic Examiner (“TE”) Yarranton was on duty with West Midlands police in Digbeth, Birmingham carrying out compliance checks on taxi and mini-bus vehicles.  He carried out a check on vehicle DN08 TNK, a twelve seat mini-bus being driven by Mohammed Nassar.  The vehicle was not displaying an operator’s licence disc but it did carry legal lettering showing the name of Kingstanding & Erdington Cars.  At first Mr Nassar stated that he had not been working but had just dropped off some friends and was chilling out.  He said the vehicle was owned by Kingstanding & Erdington Cars. The vehicle was fitted with a digital tachograph but Mr Nassar was not using a driver’s card.  TE Yarranton ran a print out from the tachograph unit which showed that the vehicle had been driven regularly throughout the day with no driver’s card in place. 

 

6.            TE Yarranton then called Kingstanding & Erdington Cars and spoke to Wassim Younis who said that Mr Nassar was registered to the firm as driver number 103 and whilst he was not on a job at the time, he had been working for the firm that day and had finished thirty minutes before the call.  TE Yarranton then conducted a driving licence check on Mr Nassar and ascertained that he did not hold a driver CPC qualification and therefore did not possess a digital tachograph driver’s card. 

 

7.            Mr Nassar was then interviewed under caution.  The significant questions and answers were as follows:

 

PY: Are you working for Kingstanding & Erdington Cars today?

MN: Yes.

PY: How are you employed by Kingstanding & Erdington cars?

MN: Full time, it depends how much work they have.

PY: Do they pay your National Insurance?

MN: Yes.

PY: Are you in receipt of benefits?

MN: No.

PY: Are you driving DN08TNK today. Are you acting on behalf of and under instruction of Kingstanding & Erdington Cars?

MN: Yes.

PY: Who gives you your work instructions?

MN: The office.

PY: Kingstanding & Erdington Cars have confirmed that you have been working with passengers on today, is that correct?

MN: Yes.

PY: So that work is subject to EC Driver’s Hours and Tachograph regulations, were you aware of that?

MN: No.

PY: You told me that you  had applied for a driver card?

MN: No, I was going to apply.

PY: You told me that you had been chilling out and that you had taken your mates out?

MN: You asked me if I was working now, but I wasn’t.

PY: You have no driver CPC which you need for this type of work.  What can you tell me about this apparent offence?

MN: I have failed two tests before and have booked another one.

PY: So you know you need a CPC?

MN: Yes.

PY: Do Kingstanding and Erdington Cars know that you have got no CPC?

MN: Not sure.

PY: Have they checked your driving licence?

MN: Yes.

PY: Do they know that you have got no tacho card?

MN: I don’t think they do.

PY: Where did  you pick the vehicle up from?

MN: A driver drops it off, it varies.

 

Mr Nassar was then issued with a fixed penalty notice for failing to use a driver’s card and fined £300 and another fixed penalty notice for driving without a valid driver CPC and fined £50.

 

8.            On 31 March 2014, TE Yarranton spoke to Mr Arif.  He stated that his operator’s licence was “currently under review” and he denied that he had been the operator of the vehicle.  He subsequently faxed to TE Yarranton a copy of the vehicle’s COIF; a vehicle test certificate; a photocopy of an operator’s disc in the name of Mohammad Maroof valid between 5 December 2013 and 30 November 2017 and an operator’s licence in the name of Mohammad Maroof trading as Nas Travel.  As a result of that conversation and the forwarded documentation, TE Yarranton wrote to Mr Maroof requesting an interview which was to take place on 15 April 2014.  Unfortunately, Mr Maroof was in Pakistan when the letter was sent and did not return until after TE Yarranton’s investigation had concluded.  As a result, he was not interviewed.

 

9.            On 18 August 2014, a call up letter was sent to Mr Arif, now trading as Choice Travel Solutions, informing him of a public inquiry which was to take place on 22 September 2014.  The hearing was postponed at the request of Mr Arif to 20 January 2015. 

 

The Public Inquiry

 

10.         At the public inquiry, Mr Arif was represented by Mr Marsh and Mr Maroof was represented by Mr Jordan, solicitor.  Mr Marsh summarised Mr Arif’s position at the beginning.  He was a taxi company.  He had had one vehicle operating under his restricted operator’s licence in order to fulfil contract work for Birmingham City Council.  He had not undertaken any PSV work whilst his licence was suspended.  Both representatives confirmed that they did not take issue with the contents of TE Yarranton’s report. 

 

11.         TE Yarranton then gave evidence.  He had not been aware when he stopped Mr Nassar that Mr Arif’s operator’s licence was suspended.  Further, he was not aware until the morning of the public inquiry that Mr Nassar was the son of Mr Maroof although he had realised that there was a connection because they both shared the same address.  TE Yarranton had been surprised when Mr Arif had faxed documents to him relating to Mr Maroof’s operator’s licence but did not ask Mr Arif why he had the documents in his possession.  He agreed that he did not ask Mr Arif whether he had employed Mr Nassar because Mr Nassar had already said he was employed by the firm.  TE Yarranton accepted that he did not explore the relationship between Mr Arif, Mr Maroof and Mr Nassar further. TE Yarranton would have informed Mr Younis of the reason for his call on 8 March 2014 and Mr Younis had confirmed that Mr Nassar was working for Mr Arif and that he was registered as driver 103.  Mr Marsh then produced a magnetic sign which it was said had been attached to the vehicle on 8 March 2014 which read “Kingstanding Midland Regency – 0121 377 6666 – be booked be insured”. TE Yarranton could not say whether that was the signage he saw on the vehicle. 

 

12.         Mr Maroof then gave evidence.  He was a full time hackney carriage driver and had no entitlement to drive PSV vehicles.  It was he who was operating DN08 TNK under his own operator’s licence and his son was the driver of the vehicle.  Mr Maroof had hired the vehicle from Kingstanding Cars from March 2013 to March 2014 and had paid a monthly hire charge.  At the end of the hire period “he came to own it” (the log book shows that “King Standing Cars” was the registered keeper of the vehicle from 12 February 2013 to 11 March 2014 when Mr Maroof then became the registered keeper).  He explained that he had in fact purchased the vehicle from Kingstanding for his son to drive.  He did not know that Mr Arif’s PSV licence had been suspended and denied that he had been in a conspiracy.  The arrangement with his son was that Mr Maroof would receive 40% of his son’s earnings and that the bookings for the vehicle came from Kingstanding.  There was no commission or fee paid to Kingstanding for the work given to Mr Nassar.  His son only worked part time and was self employed.  Mr Maroof appreciated that his son should not have been driving the vehicle until he had gained his full CPC qualification and he apologised for that.  Prior to the hire of DN08 TNK, Mr Maroof had operated another vehicle for about two or three months for use on a school contract as a sub-contractor for Kingstanding Cars but that vehicle had been driven by a Rajiv Khanna.  It was Mr Maroof who was responsible for insuring and maintaining DN08 TNK and he paid Mr Nassar’s national insurance and they had a contract of employment.  He did not know why his son had told TE Yarranton that he was working for Kingstanding & Erdington Cars and that it was that firm who was paying his national insurance.  He accepted that he did not have any evidence to produce to establish that Mr Nassar was not employed by Kingstanding.  He had allowed Mr Arif to take copies of his documents because Mr Arif wanted them for his records and “my son’s worked there”. 

 

13.         After a short adjournment, Mr Maroof produced to the TC a document showing that his son was self-employed and in receipt of child tax credits.  He had declared an income of £7,000. 

 

14.         Mohammed Nassar then gave evidence.  At the time when he had been stopped, he was not aware that he was not entitled to drive a PSV vehicle and he was confused.  He had since qualified.  He denied that the magnetic plate produced by Mr Marsh was the sign attached to the vehicle on 8 March 2014.  The sign on the vehicle was of a “stick on” variety and it simply had the name “Kingstanding & Erdington Cars” along with the address (which we observe would meet the legal lettering requirements).  Mr Arif’s firm was not paid anything for referring work to Mr Nassar.  Mr Nasser certainly did not pay anything but he could not say whether his father paid for referrals.  He had said that he worked for Kingstanding & Erdington Cars when interviewed by TE Yarranton because he did work for them indirectly and he had therefore thought that they were paying his tax and national insurance.  It was stupidity that had made him say something which was untrue. 

 

15.         In answer to questions put by the TC, Mr Nassar stated that he did not have the benefit of a training provider when he trained to qualify to be a PSV driver, hence his ignorance about not being able to drive a PSV vehicle when not fully qualified.  He was aware that he had to use the digital tachograph and that he needed a driver’s card but the work was limited.  He again described himself as “stupid” for not having told TE Yarranton the reality of his work situation which was that he was working for his father on a self-employed basis.  His father’s evidence that they had a contract of employment was false.  98% to 99% of Mr Nassar’s work came from Kingstanding Cars and the remainder came from his father. 

 

16.         Mohammed Arif then gave evidence.  He told the TC that he had not operated PSV vehicles during the period covered by his licence suspension.  Neither had he arranged for others to do the work his vehicles would otherwise have done and he had not borrowed any operator’s licences to continue to operate.  His main business was private hire with an operation of more than 150 cars.  Mr Maroof was a sub-contractor on the PSV side although the arrangement was not between Mr Maroof and Mr Arif trading as Kingstanding and Erdington Cars but with Choice Travel Solutions Limited which also traded as Kingstanding and Erdington Cars.  Neither he nor the limited company employed any drivers and the drivers all provided their own vehicles.  They were self employed and they paid Kingstanding and Erdington Cars a referral fee whilst at the same time, having contracts for the provision of services.  Large group bookings were referred to the PSV sub-contractors and Mr Maroof had been a sub-contractor since 2013 using the vehicle hired to him by the limited company.  Mr Maroof paid a lump sum each month and at the end of the hire period, he owned the vehicle. Mr Arif produced a contract for the provision of services dated 1 January 2013 between Mr Arif trading as Kingstanding, Beeches & Hamstead Cars and Mr Maroof for 36 months; a second contract dated 15 January 2014, this time between Mr Arif trading as Kingstanding, Midland Regency and Mr Maroof and again for 36 months; a document entitled “Kingstanding, Midland Regency Company Vehicle Hire Agreement and Conditions”, the vehicle in question being DN08 TNK and the hirer being “Mohammad Maroof & authorised employees of NAS Travel”, the period of hire being 15 March 2013 to 11 March 2014.  Mr Arif stated that he had retained copies of Mr Maroof’s operator’s licence documents in order to show the authorities, such as Birmingham City Council.  Other operators with operator’s licences were used in the same way.  Mr Arif did not employ Mr Nassar but rather, Mr Maroof paid Mr Arif £65 per week for booking referrals.  Mr Arif denied that he was trying to circumvent his suspension or that Mr Nassar had ever driven under Mr Arif’s operator’s licence. 

 

17.         In answer to questions from the TC, Mr Arif denied that he had established a business model which enabled him to continue to operate PSV vehicles despite the suspension of his licence.  The private hire business was operated by the limited company, Choice Travel Solutions Ltd (no documentary evidence was produced in relation to this limited company save for three wage slips covering September to November 2014 in the name of Mr Arif which confirmed that he was in receipt of a salary from the limited company).  Mr Arif averred that when customers called the telephone number (which is that of the limited company) they were advised that PSV vehicles were provided by sub-contractors.  The reason why, in Mr Nassar’s case, the vehicle had the details of Kingstanding and Erdington Cars on the side was so that the customers knew they had identified the correct vehicle when waiting for a private hire vehicle.  He denied that he was misleading the public in using sub-contractors whose vehicles had the Kingstanding details on them.  Mr Arif offered to send a list of PSV sub-contractors used in this way (there was no evidence before the Tribunal that he did that).  He further averred that the driving licences of the sub-contractors’ drivers were checked including their CPC entitlement.  As far as Kingstanding was concerned, Mr Maroof’s driver was Mr Khanna and as Mr Nassar had never attended the call centre, his driving licence had not been checked.  At this point, TE Yarranton confirmed that the call number 103 related to Mr Nassar, not to the vehicle that he was driving. 

 

18.         Mr Arif confirmed that he was not operating any PSV vehicles at the time of the hearing as he had lost his contracts with Birmingham City Council as a result of the licence suspension.  He had never used his operator’s licence for his private hire business.  He wished to retain his operator’s licence because he would like to obtain new school contracts with the council in the future. 

 

19.         In his closing submissions, Mr Marsh submitted that Mr Maroof was the operator of the vehicle and that he had hired the vehicle from Mr Arif for eleven months prior to 8 March 2014.  Mr Maroof paid for the maintenance and insurance and his son was a self employed driver who received the private hire fares.  Whilst Mr Nassar obtained 98% to 99% of his work from Kingstanding, that was in fact part of Choice Travel Solutions Limited.  Whilst Mr Arif was a director of that company, the company did not hold its own operator’s licence and did not operate any vehicles on its own behalf.  All of its drivers were self employed and used their own vehicles.  Neither Mr Maroof, Mr Nassar or Mr Arif had stated that Mr Nassar worked for Mr Arif and whilst their evidence had been misleading and at times “somewhat contradictory”, the facts of the case were that Mr Arif did not employ Mr Nassar and was not the operator of DN08 TNK. 

 

The TC’s decision

 

20.         The TC accepted TE Yarranton’s evidence in its entirety and found that all of the witnesses who had given evidence, save for TE Yarranton, lacked credibility.  They had sought to sow confusion as to who was employing Mr Nassar.  He found that Mr Maroof gave evidence that suited his own purpose, repeatedly answering questions before they had been completed.  Contradictions relating to the employment status of Mr Nasser illustrated the unreliable nature of the evidence given by Mr Marrof, Mr Nassar and Mr Arif.  The evidence of TE Yarranton was that he had been told by Mr Younis that Mr Nassar was employed by Kingstanding and that he had a call sign assigned to him.  Mr Younis was not called to contradict that evidence (we note, that in fact, TE Yarranton’s evidence was agreed).  The TC found that the answers Mr Nassar gave in interview were accurate, whereas the evidence he gave at the hearing was false.  The TC noted the contradiction in the evidence of Mr Maroof about his son’s status as his employee with a contract of employment and Mr Nassar’s evidence on the point.  There had been a deliberate attempt to deceive the TC. 

 

21.         The TC recalled that when Mr Arif attended before him at the public inquiry in February 2014, he was told that whilst his operator’s licence would be suspended, Mr Arif must sub-contract his PSV work and that he must do so lawfully with a proper audit trail.  That did not happen.  There had been a complete lack of control and a wholesale abdication of responsibility by him.  He treated his PSV licence as it if were a local authority private hire licence.  The TC rejected Mr Arif’s assertion that he was no more than a booking agent for drivers.  He found that the magnetic sign that Mr Arif produced at the public inquiry was consistent with the obligation of an operator to display legal lettering on a PSV in order to confirm the identity of the operator. 

 

22.         The TC found that Mr Arif employed and controlled Mr Nassar.  He referred to the Tribunal decision of 2004/337 EA Scaffolding & Systems Ltd & 2004/426 EA Contract Services Limited and the case of Interlink Express Parcels Limited v Night Trunkers Limited & Another (2001) EWCA Civ 360. In this present case, members of the public would call the Kingstanding Cars number (or whatever trading name Mr Arif was using at the time) and would be carried in a vehicle which displayed Kingstanding Cars signage.  Mr Arif’s employees controlled the work given to Mr Nassar and fixed the fee at the time of booking.  The  TC rejected the assertion that Mr Nassar was driving the vehicle as part of a sub-contracting arrangement. 

 

23.         The TC further found that Mr Arif had buried his head in the sand by failing to undertake any proper checks upon the safety of vehicles or the drivers’ entitlement to drive PSV’s or whether the rules on drivers hours and records were being complied with.  Mr Nassar used DN08 TNK without using a driver’s card for eleven months.  These failures were not consistent with the actions of a reputable operator.  There was a significant competitive advantage in ignoring drivers’ hours and records rules and this was a particular problem in the Birmingham area.  Mr Arif had set up his business in such a way as to deliberately circumvent the suspension of his operator’s licence and when asking himself the Priority Freight question (supra), the answer was in the negative. The TC referred to the Tribunal decision George Gollop 2002/09, a case involving an attempt by an operator to deceive the Traffic Commissioner which resulted in a finding that repute had been lost.  The TC concluded that other compliant operators would be appalled by Mr Arif’s attempt to circumvent the suspension of his operator’s licence.  Further, he reminded himself of the Tribunal case of Fenlon 2006/227  which highlighted the importance of trust as between operators and Traffic Commissioners and trust between operators and whilst the TC did not make any specific finding that Mr Arif was not an operator that he could trust in the future, it was implicit that this is the conclusion that the TC came to.  As a result of Mr Arif’s previous enforcement history and the professional audits undertaken following the first public inquiry, the TC was “especially disappointed” that Mr Arif had deliberately circumvented the order of suspension.  In the circumstances, disqualification for two years was appropriate in addition to revocation of Mr Arif’s licence.

 

Upper Tribunal Appeal

 

24.         At the hearing of his appeal, Mr Arif attended and was represented by Mr Marsh who provided a skeleton argument for which we were grateful.  His main point was that the TC was wrong in either rejecting or failing to take account of the following:

 

a)    Mr Arif held the restricted operator’s licence in his own name solely for the purpose of fulfilling his obligations under school contracts he held with Birmingham City Council.  Contrary to Mr Maroof’s evidence to the TC, he had not been used as a sub-contractor on Mr Arif’s school contracts;

 

b)    The private hire business was operated and controlled by Choice Travel Solutions Limited, trading in a variety of names over time, which was a separate entity to Mr Arif, although he was the sole director of the company.  Mr Marsh accepted that there was a “great veil of confusion” over the identity of the operator of the private hire business as a result of Mr Arif’s practice of using the same trading name as that used by Choice Travel Solutions Limited at any given time.  Mr Marsh further accepted that Mr Arif had provided no documentary evidence to support his assertion that it was the limited company that operated and controlled the private hire business.  However, the TC should nevertheless have found that there was a distinction between the two entities and he should have accepted that Mr Arif did not operate the private hire business;

 

c)    The limited company did not own any vehicles or employ any drivers.  The hire agreement and the contract for services were in fact between Mr Maroof and the limited company, despite the fact that the limited company was not named as a contracting party in any of them.  The documents demonstrated that vehicle DN08 TNK had been hired to Mr Maroof by the limited company since early 2013 and that the agreements further demonstrated that Mr Maroof was not only in lawful possession of the vehicle during the period of suspension and had been so for a considerable period of time but that he was the operator of the vehicle providing services to the company. When the Tribunal pointed out to Mr Marsh that if his submissions were correct and the limited company did not own any vehicles, then it could not have been a party to the hire agreement, he took instructions from Mr Arif and revised his submissions stating that the company did own vehicles which it then hired to drivers.  When we pointed out that the registered keeper of DN08 TNK at the material time was “King Standing Cars” and not the limited company, Mr Marsh again took instructions and submitted that that had been the trading name of the limited company at the time that it acquired the vehicle;

 

d)    The limited company was no more than a booking agency, although we advised that if that were the case, then there would be no need for a contract of services between the private hire business and the driver.  Mr Marsh nevertheless argued that Mr Maroof was providing services under the terms of the contract although the only monies that changed hands was a weekly booking fee of £65 which Mr Maroof paid to the business, along with £150 per week for the hire of the vehicle.  Despite the obvious shortcomings of the documentation (which we list below), the TC should have accepted that the documentation demonstrated a genuine contractual relationship between the private hire business and Mr Maroof;

 

e)    The evidence pointed to Mr Arif having nothing more than minor control over the work of Mr Nassar.  He referred to the Tribunal decision of The Tachograph Centre Limited 2003/62 and submitted that the evidence was that Mr Maroof was the operator and he employed Mr Nassar.  He was the one who held the operator’s licence and he was responsible for the maintenance of the vehicle and for ensuring that the rules on drivers’ hours and records were complied with.  The fares for journeys were paid to Mr Nassar by the passengers and in the event that the arrangement between Mr Maroof and the private hire business came to an end, there were no arrangements for the transfer of Mr Nassar’s employment from Mr Maroof to the business;

 

f)     Mr Nassar did not attend the call centre or office which was the hub of the private hire business.  As a result and contrary to Mr Maroof’s account to TE Yarranton, his driving licence was not checked;

 

g)    Mr Nassar was not employed by either the limited company or Mr Arif and the operation of the vehicle on Mr Maroof’s licence was not intended to circumvent  the suspension of Mr Arif’s licence.

 

Mr Marsh accepted that the decision of the TC was largely based upon his assessment of the witnesses.

 

The Tribunal’s determination

 

25.         We are satisfied that this is an appeal which is devoid of any merit.  The evidence of Mr Arif, Mr Maroof and Mr Nassar was contradictory, unreliable and so unsatisfactory that it lacked any credibilty and whilst TC’s are always in the best position to assess the credibility and demeanour of witnesses, it is obvious from the transcript alone that his conclusion as to the weight to be attached to their evidence (or lack of it) was plainly and obviously right. 

 

26.         There was no evidence before the TC to support Mr Arif’s assertions that Choice Travel Solutions Limited operated and controlled the private hire business which at that stage was operating under the trading name of Kingstanding and Erdington Cars,  either at all or on 8 March 2014.  Three wage slips in the name of Mr Arif dated between September and November 2014 were wholly insufficient to establish that firstly, the limited company even existed in March 2014; secondly, that if it did, that it traded as Kingstanding and Erdington Cars rather than Mr Arif  trading in that name at the material time; thirdly, that it was the owner of DN08 TNK; fourthly, that it may have been in some form of contractual relationship whether for hire of the vehicle or for the provision of services or otherwise with Mr Maroof. 

 

27.         All of the evidence pointed to Mr Arif being the operator of the private hire business.  The Tribunal was informed that the two contracts for the provision of services (which are identical in their terms) are copies of a standard form contract used by Mr Arif to engage the services of private hire drivers (as opposed to PSV operators).  They are in the name of Mr Arif trading as Kingstanding, Beeches & Hamstead Cars in one instance and Kingstanding, Midland Regency in the other.  Whilst references are made in the body of the contracts to “the company”, there is no reference to Choice Travels Solutions Limited and “the company” is not further defined.  The same observations are equally applicable to the hire agreement.  It follows that whilst Mr Arif relied upon these documents to establish that Mr Maroof was the operator of DN08 TNK on 8 March 2014, what the documents do in fact establish is that it was Mr Arif who was operating the private hire business.

 

28.         The contract for services themselves, do not support Mr Arif’s description of the arrangement that he had with Mr Maroof.  By way of example, clause 4.1 of the agreements state “The agreed consideration for the provision of services is agreed before completion of any tasks and will be payable on a monthly basis”.  The contracts clearly provided that the consideration for the “tasks” to be completed under the contracts passed from Mr Arif to Mr Maroof on a monthly basis.  They did not envisage the reverse arrangement of Mr Maroof paying Mr Arif a weekly sum of £65 in consideration for booking referrals without more.  Mr Marsh accepted that to be the case.  In essence, the contracts have no evidential value beyond confirmation that Mr Arif was operating the business in his own capacity. 

 

29.         Turning then to the hire agreement, it was again conceded by Mr Marsh that this contract was in a standard form used for the purpose of hiring private hire vehicles to drivers who would then drive for the business.  Whilst this agreement is supposedly relating to the hire of a PSV vehicle, it does not permit any work to be commenced on the vehicle without prior permission being sought from Kingstanding, Midland Regency management and the only reference to maintenance otherwise is a responsibility to “check tyres oil and water regularly”.  Whilst the requirement to undertake regular preventative maintenance inspections is that of the operator, the hire agreement is clearly not one that can or should be used for the hire of a PSV.  By way of a further example, there is no requirement that Mr Maroof holds or retains an operator’s licence or that he should inform Mr Arif immediately should his operator’s licence entitlement change.  In our view, such a requirement is vital in view of the dangers of impounding if no valid licence is held (or indeed displayed as in this case).  The agreement also envisaged that Kingstanding was responsible for vehicle insurance, which is in sharp contradiction to the terms of the contract for services and is inconsistent with a long term hire agreement for a PSV.  Further, the agreement is silent as to the charges for hire and it does not mention that it was a hire purchase agreement entitling Mr Maroof to ownership of the vehicle at the end of the hire period (as was maintained by Mr Arif and Maroof) with the usual terms and conditions.  Further, the document is undermined (as indeed was the evidence as to the hiring of the vehicle itself) by Mr Nassar’s answer when interviewed under caution by TE Yarranton as to how he took delivery of the vehicle each day he worked for Mr Arif: “A driver drops it off, it varies”.  If the vehicle was one which was hired to Mr Maroof and if Mr Nassar was the only driver authorised to drive it by him as was asserted, then it would be in Mr Nassar’s possession at the beginning of each working day.  We are satisfied that the hire agreement was a sham, as were the contracts for services and that the TC was plainly right to reject them.

 

30.         Once the oral and documentary evidence put forward by Mr Arif, Mr Nassar and Mr Maroof was put on one side, the TC was duty bound to consider the remainder of the evidence which was as follows:

 

a)    Kingstanding Cars was the registered keeper of the vehicle;

b)    The vehicle was being operated without an operator’s licence disc being displayed.  No explanation was put forward as to why Mr Maroof did not have his licence disc displayed in the vehicle if he were the true operator.  An inference can be drawn that Mr Arif removed his disc from the vehicle when his licence was suspended and had not sub-contracted the vehicle out during the suspension period but had continued to operate the vehicle;

c)    There appeared to be no other legal lettering on the vehicle other than that of Kingstanding and Erdington Cars (or certainly no evidence was produced that there was).  The inference that can be drawn from that, is that the vehicle was being operated by Mr Arif, otherwise the legal lettering of Mr Maroof would have been displayed;

d)    Mr Nassar’s answer in interview that the vehicle would be delivered to him by another driver.  The inference that can be drawn is that the vehicle was not in his control or his father’s control;

e)    Mr Nassar’s answers in interview that he was employed by Kingstanding & Erdington Cars and that this was confirmed by Mr Younis;

f)     Mr Nassar obtained 98% to 99% of his work from Mr Arif.  In the circumstances, it can be inferred that Mr Arif controlled Mr Nassar’s work;

g)    Whilst it was not asserted before the TC that Mr Maroof was paying Mr Arif £150 per week for the hire of the vehicle in addition to £65 per week for referrals, it was asserted before us.  If that had been the case, Mr Maroof would have been paying out of his 40% share of his son’s fares, £215 per week in addition to the cost of operating the vehicle (a minimum of £11,800 per annum).  If that were the case, then the minimum income that Mr Nassar would have received from his work with Kingstanding & Erdington Cars would have been £27,950 with Mr Nassar receiving 60% of that which amounts to £16,770 which is more than double the figure he declared for tax and national insurance purposes. 

 

31.         In all of the circumstances of this case and in particular the lack of credibility of the witnesses and the “sham” documents, we cannot say that the TC’s conclusion that it was Mr Arif who was operating DN08 TNK in circumvention of the suspension of his operator’s licence, employing Mr Nassar to drive the vehicle whilst using the cover of Mr Maroof’s operator’s licence was plainly wrong.  This was a serious case and the attempt to deceive the TC at public inquiry was brazen.  The TC’s assessment of Mr Arif as an operator cannot be criticised.  Mr Arif’s conduct was so bad that he deserved to be put out of business in relation to PSV operation and he clearly cannot be trusted to operate compliantly in the future.  A disqualification period of two years may seem to some, to be lenient in the circumstances.  We certainly do not consider it to be disproportionate.  There is no room in the industry for operators like Mr Arif.  We are not persuaded that either the law or the facts of this case impel us to come to a different view to that of the TC either in relation to revocation or disqualification as per the test in Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport (2010) EWCA Civ 695.  

 

32.      The appeal is dismissed.

 

 

 

 

 

Her Honour Judge J Beech

11 August 2015