Decision

Decision for CAD Poultry Ltd (OC2036894), Transport Mgr: Mohammad Y Nassib & 360 Transport Ltd OC2060797, proposed Transport Mgr: Mohammad Y Nassib

Published 20 April 2023

0.1 In the North Western Traffic Area

1. Written Confirmation of Oral Decision of the Traffic Commissioner

1.1 CAD Poultry Ltd (OC2036894), Transport Manager: Mohammad Yassir Nassib & 360 Transport Ltd OC2060797, proposed Transport Manager: Mohammad Yassir Nassib

2. Introduction

CAD - Poultry Ltd (“CAD”) has held a standard national goods vehicle operators’ licence OC2036894 authorising the use of 3 vehicles and 3 trailers since December 2020.

The sole director of CAD is Mohammad Yassir Nassib who is also the nominated Transport Manager.

360 Transport Ltd (“360”) has applied for a new standard national goods vehicle operators’ licence OC2060797 authorising the use of 4 vehicles and 10 trailers in October 2022.

The sole director of 360 is also Mohammad Yassir Nassib and he is the proposed Transport Manager. The nominated operating centre is also authorised on the CAD licence.

In June 2022 Mr Nassib briefly recorded 360 on the online licensing system as the trading name of CAD. Mr Nassib removed the trading name after that was questioned by my office.

The public inquiry was called to consider regulatory action against CAD and Transport Manager Nassib and to consider the new application by 360.

Between August and October 2022 3 immediate roadworthiness prohibitions were issued to CAD following roadside encounters. The final prohibition on 5 October 2022 related to a brake defect and was “S” marked. This prompted an unannounced DVSA maintenance investigation visit on 6 December 2022.

The Vehicle Examiner made several unsatisfactory findings including:

• A further immediate prohibition was issued to the vehicle checked during the visit for steering defect.
• CAD was operating 3 vehicles from an operating centre that was only authorised for 2 vehicles.
• 3 trailers were being operated when only 2 were authorised on the licence.
• Inspection records were incomplete and there was some evidence of stretched intervals.
• The prohibitions suggested an ineffective drive defect reporting process and there were improvements needed in recording rectification of defects.
• There was no forward planning systems, vehicle off road system or system for monitoring Ad-Blue usage
• The maintenance provider details on VOL were not up to date.
• Some documentation was addressed to 360.

These findings prompted the call to public inquiry for CAD and Mr Nassib as its Transport Manager. The application by 360 was also called to the public inquiry to consider if the requirements for a new licence were met and to examine the links between the two companies.

3. The Call to Public Inquiry

CAD was called up to public inquiry by letter dated 13 March 2023.

The call up letter gave notice that the grounds for regulatory action in Sections 26(1)(b), 26(1)(c)(iii), 26(1)(e), 26(1)(f), 26(1)(h), and 27(1) of the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”) were to be considered as well as the provisions for disqualification in Section 28 of the Act.

360 was called up to public inquiry by letter dated 13 March 2023.

The call up letter gave notice that the requirements of Sections 13A(2), 13A(3), and 13C(6) of the Act were to be considered.

Mr Nassib was called up as Transport Manager for CAD and proposed Transport Manager for 360 by letters of the same date that gave notice of consideration of the requirement of good repute and professional competence in Schedule 3 of the Act.

4. The Public Inquiry

The Public Inquiry was heard at Golborne today. CAD and 360 were represented by director and Transport Manager Mr Nassib. CAD, 360 and Mr Nassib were legally represented by Jared Dunbar of Dynes Solicitors.

5. Evidence

In advance of the hearing, I was provided with written submissions by Mr Dunbar in respect of CAD and 360 respectively and supporting evidence.

The submissions conceded extensive non-compliance by CAD. This included the following:

• Drivers had been paid by 360 or Mr Nassib in person whilst driving vehicles for CAD. This was due to CAD “struggling financially”. It had been the intention of 360 to act as a “freight forwarder” for CAD but it was accepted this had not been done correctly. Mr Nassib had not appreciated the implications of the drivers being paid by other entities. This had now been corrected (the supporting evidence suggested that had only occurred as recently as 1 April 2023 onwards)
• A third trailer had been operated for a period thereby exceeding the authorisation. This was on a traction only basis and Mr Nassib had not understood the that was not permitted. He claimed he had been advised by DVSA that it was permitted but had now parked up the third vehicle used to tow the additional trailer.
• It was accepted that three vehicles had been operated by CAD from one operating centre when only two were permitted. It was argued the site had capacity for three vehicles, but the position had now been rectified.
• CAD had incorrectly assumed that a previous maintenance provider was undertaking brake tests appropriately. The provider has since been replaced.
• It was accepted the maintenance prohibition rate needed improvement. A process to investigate prohibitions had only been introduced after the DVSA visit.
• The other criticisms made by DVSA of the approach to maintenance and record keeping were accepted. It was argued that improvements had been made since the DVSA visit.

The submissions on behalf of CAD conceded the grounds for regulatory action ion Sections 26(1)(b), 26 (1)(c)iii), 26(1)(e) and 26(1)(f) but argued steps had been taken to address these matters since the DVSA visit.

The submissions claimed that the new application by 360 was being made to attract potential customers for general haulage work that may have been deterred by CAD’s name referring to “poultry”. I was told it was the intention to surrender the CAD licence (that was contrary to the indication given on the original application for 360).

It was accepted that CAD could not show financial standing. [REDACTED] There was also no evidence within the statements of payments being made for driver wages or vehicle maintenance.

The PMI reports produced (and the corresponding invoices) for the period 7 November to 15 March 2023 were all addressed to 360 and not the licence holder CAD. A maintenance contract was provided with one contractor. It was dated as recently as 6 April 2023 and the operator’s name was given as “Cad Poultry T/A 360 Transport Ltd”.

In respect of the application by 360, I was provided with evidence it had arranged an audit for July 2023 and that Mr Nassib as its proposed Transport Manager was booked on a CPC refresher course for May 2023 (I noted his original qualification was in 2019).

I was provided with bank statements for 360 for the period 16 February 2023 to 6 April 2023. The sum available was sufficient to meet the requirement for a new licence. I noted that the statement contained several entries indicating the operation of vehicles including payments to drivers, maintenance providers [REDACTED]

Mr Nassib in evidence today conceded that he had made several errors in the way he established 360 to run alongside CAD, as detailed above. He admitted that CAD had faced financial challenges for some time and that he should have notified my office sooner.

Mr Nassib gave credible evidence that his ability to be compliant in future will be strengthened by his attendance at a CPC refresher course next month and an audit has already been arranged for July 2023.

In closing submissions, Mr Dunbar again offered the surrender of the CAD licence [REDACTED]

6. Findings of fact

I find that CAD no longer meets the requirement of financial standing and the grounds for revocation in Section 27(1) of the Act are met.

I further find that the evidence submitted beforehand and confirmed at the hearing confirms that the following grounds for regulatory action are made out:

• S26(1)(b) – Breach of conditions (the failure to notify the change in maintenance provider.)
• S26(1)(c)(iii) – Three prohibitions were issued in 2022.
• S26(1)(e) –Statements made on applying for the licence have not been fulfilled including adherence to the stated maintenance inspection intervals, the identity of the safety inspectors and that the holder would abide with conditions on the licence.
• S26(1)(f) – Undertakings not fulfilled. Specifically, this relates to the failure to keep vehicles fit and serviceable and to ensure drivers promptly report any defects.

7. Decision

My finding of fact in relation to CAD’s leads to the inevitable determination that the licence must be revoked. I have not been given any basis to grant a period of grace and must therefore act as directed by Section 27(1).

I have considered the offer of surrender but consider that this should be rejected in view of the findings that I have made in relation to other aspects of the operator’s non-compliance with the requirements and expectations of the operator’s licence.

Whilst I acknowledge that the evidence presented to me today indicates that many of the issues identified in the DVSA report have been positively addressed, I balance this with the fact that they should never have arisen in the first place. I am also concerned that the attempts to rectify the entity issue have been belated and I am not satisfied they have yet been fully completed.

I have taken account of the guidance offered in Thomas Muir (Haulage) Limited (1999) SC 86 that regulatory action has a purpose in “deterring the operator or other persons from failing to carry out their responsibilities under the legislation However, taking such considerations into account would not be for the purpose of punishment per se, but in order to assist in the achievement of the purpose of the legislation”.

I therefore direct that the CAD licence is revoked with effect from 28 April 2023 to allow time for matters such as the vehicle insurance to be put in 360’s name.

I have considered whether CAD and Mr Nassib as its director should be disqualified from applying for or holding an operator’s licence in future. I have again considered the past history of compliance as a negative but have balanced this with positive features. I acknowledge this is the first public inquiry for the operator and Mr Nassib. I also acknowledge that fact that significant efforts have been made to improve matters since the last prohibition in October 2022 and the DVSA visit in December 2022.

Having balanced those features and taken stock of the operator and its director as presented to me today, I consider that an order for disqualification in addition to the revocation of the licence would be unnecessary and disproportionate.

The same considerations apply to my assessment of Mr Nassib’s good repute as Transport Manager. The issues drawn to my attention on the CAD licence raise troubling questions about the effectiveness of Mr Nassib in that role. He ought to have realised the difficulties and intervened far sooner with matters such as the exceeding of the operating centre authority and the recording of roller brake tests. However, I again balance this with the evident progress made since December 2022 and the assurances Mr Nassib has given me of how he will be complaint in future.

I find that Mr Nassib’s good repute as Transport Manager is tarnished by these events but should not be considered forfeit. I record a formal warning on his record as Transport Manager. Mr Nassib should be left in no doubt that if he comes to a Traffic Commissioner’s attention again and the assurances given today are shown to be hollow, he can be expected to be disqualified from acting as a Transport Manager.

These findings in relation to CAD and Mr Nassib as Transport Manager mean that there are no statutory obstacles to the grant of the new licence sought by 360.

However, I remain to be fully satisfied that 360 has demonstrated all the requirements of the Act and specifically whether I can trust it to be compliant in future. Whilst progress has been made since the DVSA intervention, I would want further reassurance that maintenance standards are now being fully met and that the entity issues will be fully addressed and regularised. [REDACTED]

For that reason, I am willing to grant an interim licence for just over 5 months to allow the three conditions set out above to be met, namely attendance at a Transport Manager CPC refresher course, a satisfactory audit and provision of evidence of financial standing covering a full 3 months of operation (which was also reassure me on any lingering doubts about the entity issues).

If those conditions are fulfilled to my satisfaction, then the application can be granted in full. Mr Nassib is warned however that if 360 or he fails to meet those conditions, the interim licence will be terminated, and refusal of the full application will be proposed.

Gerallt Evans

Traffic Commissioner for the North West of England

17 April 2023