Decision

Decision for Essex Building Supplies Ltd

Published 9 February 2024

0.1 IN THE SOUTH EASTERN & METROPOLITAN TRAFFIC AREA

1. ESSEX BUILDING SUPPLIES LTD OK1108692

1.1 GOODS VEHICLES (LICENSING OF OPERATORS) ACT 1995

1.2 GOODS VEHICLES (LICENSING OF OPERATORS) REGULATIONS 1995

2. TRAFFIC COMMISSIONER WRITTEN DECISION

[All page references are to the Public Inquiry bundle unless stated otherwise].

3. Decision

Pursuant to adverse findings under Section 26(1)(b), (c)(ii), (c)(iii), (ca), (e), (f) and (h) of the Goods Vehicle (Licensing of Operators) Act 1995, Licence OK1108692 Essex Building Supplies Ltd is revoked with effect from 23:45 on 1 March 2024.

Essex Building Supplies Ltd and sole director Mr Jaspal Singh Kahlon are disqualified from holding or obtaining an Operator Licence or being engaged in the management, administration or control of an entity that holds or obtains an Operator Licence for 7 years from 23:45 on 1 March 2024 until 23:45 on 1 March 2031, as provided for by Section 28 of the 1995 Act.

4. Background

Essex Building Supplies Limited was incorporated on 8 November 2010. Mr Jaspal Singh Kahlon has been the sole director from that date. It holds a Restricted Licence authorising 3 vehicles and 1 trailer. The operating centre throughout the relevant period is 3A Crossness Road, Barking IG11 0HY. The Licence was granted on 19 March 2012.

5. Previous History

DVSA Traffic Examiner Investigation – 2 March 2022 – A Traffic Examiner carried out a Desk Based Assessment on 2 March 2022 following a roadside encounter on 22 January 2022 when the driver, Jaspal Singh Kahlon was unable to produce his analogue charts. The outcome of the investigation was Mostly Satisfactory.  The Examiner found that Mr Kahlon is the only driver who is leaving his analogue chart in vehicle EU05VJZ. Further he was failing to record his other work. Only minor infringements were found with infringement reports noted and signed by drivers. No disciplinary system appears to be in use. Appropriate advice was given. A copy of the Traffic Examiner’s Visit report is at pages 94 - 105.

Public inquiry – 27 October 2016 - A variation application was made to increase the authorisation from 2v & 0t to 7v & 1t and a change of operating centre to 3A Crossness Road, Barking. An unsatisfactory maintenance inspection by a DVSA Vehicle Examiner (VE) on 15 July 2016 found the following shortcomings: -

• Driver detectable faults found at Preventative Maintenance Inspections (PMI), with no corresponding driver defect sheet.

• Driver Defect Report with defects identified but not shown as rectified.

Use of an unauthorised operating centre.

• Previous undertakings have not yet been fully met. The random audits of driver walk around checks are only being carried out every two weeks not per week as required. An audit report should have been carried out by 31 May 2016. The audit was only undertaken on 7 July 2016 and was not available at the time of inspection.

• The audit raised concerns regarding a lack of training for drivers, no system for auditing of driver walkarounds, PMIs not signed off by the responsible person and no wheel retorque system in place.

At the public inquiry on 27 October 2016 the Traffic Commissioner granted the variation for 3v & 1t only (rather than the 7v applied for).  Undertakings were accepted for the Operator to employ a suitably qualified Transport Consultant for at least two days per month for at least three months and for an audit by 30 April 2017. Both undertakings were adhered to and were removed from the licence.

Public Inquiry – 10 February 2016 - An application was made on 1 June 2015 to increase the authorisation to three vehicles. Due to an S marked prohibition a joint TE/VE investigation was raised. Both reports were unsatisfactory highlighting the following shortcomings: -

• No PMI Records available.

• Insufficient forward planning system – does not project 6 months forward, missing MOTs and tachograph calibrations.

• ‘S’ marked prohibitions issued & recent Prohibition issued for load security.

• In possession of three vehicles when only authorised for 1 vehicle.

• A driver failed to take sufficient weekly rest, having driven for 18 days in a row.

• Director lacked knowledge on drivers hours and compliance.

At the public inquiry on 10 February 2016 the Deputy Traffic Commissioner refused the variation application and found Mr Kahlon’s fitness tarnished.  The following undertakings were accepted at the public inquiry: -

An independent audit of the operator’s systems for maintenance and drivers hours and the effectiveness with which those systems are implemented will be carried out by the RHA, FTA or other suitable independent body, by 31 May 2016.  The audit should cover at least the applicable elements in the attached annex. A copy of the audit report, together with the operator’s detailed proposals for implementing the report’s recommendations, must be sent to the traffic area office in Eastbourne within 14 days of the date the operator receives it from the auditor.

The operator will undertake a random audit of at least one driver per week to ensure the drivers are undertaking their walk round checks correctly. The findings will be recorded and made available to staff from DVSA, or the Office of the Traffic Commissioner, on request.

The operator will employ an independent service provider to analyse tachograph records and prepare monthly reports on the results of that analysis. The reports should identify any driver infringements. The operator will act upon those reports, bringing the infringements to drivers’ attention and taking the necessary steps to reduce the likelihood of repetition. The reports will be retained for two years.

At that Inquiry Mr Kahlon gave the following assurances to the DTC: -

• He will sign up for online driving licence checks – to be carried out every three months.

• He will sign up for the online OCR system.

• He will receive completed PMI sheets from his maintenance contractor within 24 hours of the PMIs and check them carefully.

• He will arrange for all drivers (including himself) to have a toolbox talk on tachographs by 12 April 2016 (with a Punjabi interpreter for Mr Singh).

• Information on the course and instructions should be translated for Mr Singh.

6. Events leading to the call to the 2023 Public Inquiry.

Since the last Public Inquiry in October 2016 the Operator has been the subject of numerous DVSA roadside encounters, (a summary of which can be found at pages 5-7). There is only one clear roadworthiness encounter (06 April 2020) and one clear traffic/drivers’ hours encounter (21 May 2018). Otherwise, at every encounter there is either traffic offences or maintenance encounters resulting in inspection notices, delayed prohibitions, or immediate prohibitions and sometimes a mixture of each. The DVSA maintenance investigation report confirms as of 15 December 2022 a prohibition rate of 44% against a national average of 24% (page 46) and an annual test failure rate of 16% against a national average of 13% (page 43). At the fleet inspection on 15 November 2022, two vehicles were examined, and two inspection notices issued (page 39).

The Operator has also been the subject of roadside encounters and follow up intervention from the Metropolitan Police Commercial Vehicle Unit. A report was received from a Police Officer who carried out an investigation following a stop of vehicle EU05 VJZ on 18 June 2022. The driver gave his details as Jaspal Singh Kahlon. The Police on that date found the following offences: -

• The driver had 13 days charts older than 42 days (driver issued with a verbal warning).

• 20 mode switch errors found on the analogue charts (driver issued with a Traffic Offence Report).

• Insecure load (driver given education and issued with a verbal warning).

Under inflated tyre (driver issued with a verbal warning).

• Tyre had a bulging side wall. (Traffic Offence Report and immediate prohibition issued).

On 28 July 2022, the Police issued a Section 99 request to the operator (pages 90 - 91). As no response was received, a visit was made to the company and the police spoke to Mr Kahlon who could not remember whether he had received the Section 99 request. Mr Kahlon informed the Officer that he was having problems with TFL overcharging him. A second Section 99 was hand delivered to Mr Kahlon on 2 September 2022 (92 – 93).  The officer ensured that Mr Kahlon understood that the requested documents must be received by 21 September 2022 or prosecution or notification to the Traffic Commissioner would follow. A telephone call was received by the Police Officer on 20 September 2022 from Mr Kahlon’s partner requesting an extension to the end of the week as Mr Kahlon was unwell.  The Officer received a few documents on 26 & 27 September 2022.  As the Operator had failed to provide the required documents, the Officer passed the case for prosecution. 

Mr Kahlon attended Barkingside Magistrates Court on 14 November 2022 and pleaded guilty. The Court directed to comply with the Section 99 request and attend Magistrate Court on 13 December 2022. Mr Kahlon failed to comply with the court order as no documents were received. Mr Kahlon’s partner contacted the Magistrates Court as Mr Kahlon was unable to attend on 13 December 2022 due to Covid. He was bailed in absence, and a new court date of 4 January 2023 was set. Mr Kahlon failed to attend the Magistrates Court on that date. Officers made several attempts to contact Mr Kahlon and were informed he had gone to Egypt and would be returning to work on 9 January 2023.  The police officer contacted Mr Kahlon on 9 January 2023 and arranged to meet him on 10 January 2023 to arrest him. Mr Kahlon was taken to Thames Magistrates Court where he was given a conditional discharge for 12 months and ordered to pay £26 victim surcharge and £85 costs [Mr Khalon admits unpaid as of 5 July 2023 and I told him he must go to the court to resolve this - SBTC].

On 2 August 2022 the DVSA Remote Enforcement Office sent an email to the Operator attaching a letter requesting details of any investigation the Operator had taken following the issue of a prohibition on 5 July 2022 (insecure load).  As no response was received an unannounced maintenance inspection was carried out on 11 November 2022. The Operator was unable to produce any maintenance records to the Vehicle Examiner. The director, Mr Kahlon, advised the Examiner that the records were being copied at an order of a court. Mr Kahlon was granted a period of grace to provide the documents.  A letter was sent to the Operator on 7 December 2022 advising that if no records were received within 7 days the matter would be referred to the Traffic Commissioner.  No response to the Maintenance Investigation Visit Report or request for records was received by the Vehicle Examiner. The Vehicle Examiner concluded that the “Company seem reluctant to engage with DVSA. Recommend Report to OTC” (page 51).

On 12 January 2023 a letter was sent to the Operator from my office advising that due to the maintenance investigation outcome and failure to provide records to DVSA, I was proposing to revoke the licence (page 53 - 54) and would do so in the absence of a response requesting a hearing. A deadline for response was given of 2 February 2023.

In response a letter dated 23 January 2023 was received from Mr Kahlon explaining that he had an ongoing dispute with TFL who he claims have overcharged him a large amount in respect of 41 PCMS issued within a short period of time. He has been unable to buy new stock, pay company bills or to keep up with payments for his vehicles. He has had a number of visits from bailiffs pursuing payment on behalf of TFL. He states that the last visit, some two weeks previously, the bailiffs threatened to arrest him if he did not pay £29,000.  He is still trying to resolve the situation with TFL.  Due to the stress, which was affecting his health, he was spending all his time and energy on the TFL issue. He states that he is at risk of going bankrupt and that unless the issue with TFL is resolved the business will not survive. Mr Kahlon requested a public inquiry. As a result, I directed a Public Inquiry with a priority listing. I also co-joined a driver conduct hearing for Mr Khalon.

7. Hearings

The Public Inquiry was listed for Tuesday 11 April 2023 at 2pm. On 11 April 2023 I issued the following adjournment decision with reasons: -

This case was due to be heard today at 14:00 hours. An adjournment request was received at 07:49 from the sole director stating that his father was very unwell, and he may need to go to hospital. At 09:15 there was a call from an individual purporting to be his partner saying Mr Khalon’s father had been taken into hospital and repeating the adjournment request. We cannot communicate with anyone other than the director in the absence of written authority.

Prior to this morning the director had indicated attendance but failed to lodge documentation required (set out in pages 12 and 13 of the hearing bundle) by the deadline of 4 April 2023. When the director was chased for this information previously my office has endless explanations as to why information may not be available. However, none of this has been put in writing, save a copy of an Ombudsman case. With the adjournment request the director finally did send over bank statements for the last 3 months which demonstrate that the financial resources requirements are met (but I note the finance burden). However, the adjournment request has not been accompanied by any evidence of the father’s illness (which was referred to last week by telephone). STC statutory Document No. 9 is clear on what supporting evidence is necessary for adjournment applications. It is always an unsatisfactory state of affairs when a director a requests a last-second adjournment but at the same time fails to produce statutory records.

I have given careful consideration as to whether the licence should be suspended pending attendance at a hearing. On this occasion I have stopped short of doing so, as the director had originally indicated attendance and limited information sent in. At the same time, I note from the police evidence that there were similar challenges in engaging with this director.

On balance I have granted an adjournment, but only for a short period for the director to make alternative arrangements in terms of the care to his father. However, the balance of documentation is required and must be lodged with my office no later than 13:00 on 18 April 2023 and the public inquiry will now be reconvened on 19 April 2023 at 13:30 hours, the police witnesses have confirmed that date and time is convenient to their shift pattern. The case must proceed on that date and the director needs to make all necessary arrangements to ensure his attendance.

This decision was met with an immediate request (12 April 2023) for a further adjournment suggesting medical evidence to follow. The letter suggests a level of co-operation which is simply not borne out by the above chronology. On 14 April 20203, I issued the following decision: -

Note: Reference to the Operator refer to the sole Director and company interchangeably for the purposes of this decision only.

The adjournment request received on 13 April 2023 is refused. I will only consider a further adjournment request, upon receipt of the following:

The last 3 preventative maintenance inspection sheets of all 3 of the vehicles specified on the licence together with any brake performance testing/print outs.

1. Insofar as it is suggested that the vehicles have not been used for that period, or part thereof (18 weeks based on a 6 weekly inspection cycle) then proof must be sent. The best evidence would be vehicle data unit print outs, which identify if no mileage has occurred on any given day. There may be one analogue vehicle, but this may be dealt with by copying the last analogue chart and a time stamped photo of the current odometer reading.

2. Insofar as the vehicles have been used, I require copies of the driver defect sheets when a defect only was picked up by the driver. Insofar as none are received then it will be deemed that drivers have not picked up any defects in 18 weeks.

3. The most recent online driver licence checks (which must predate 4 April 2023).

The Operator was meant to have sent this and much more by 4 April 2023. As of 13 April 2023 the Operator has not lodged a single statutory record to demonstrate that the conditions and undertakings on the Licence are being complied with. The Operator has spent in documentation linked to an Ombudsman complaint about TfL and a chronology of emails with the police officer. He is entitled to have those considered as part of the case, but he cannot simply pick and choose what he wants to send in. In reaching this decision. I have noted as follows: –

• All 3 vehicles are within their valid MOT date.

• All 3 vehicles were taxed until 31 March 2023. Two remain taxed. One vehicle’s tax ran out and the online records have not yet been updated to show that it was renewed if it was.

• The Operator’s submission to the Ombudsman suggests that the vehicles are working because it includes the statement “without drivers, my business will cease,” talking about granting pay rises.

• The Operator referred on many occasions to VOSA. VOSA has not existed since circa 2013 when it became DVSA. This raises concerns whether the Operator has up-to-date knowledge. The Operator also suggests that he owes VOSA £4,500 and I will be asking him how this figure is made up.

• Although some of the documents sent refer to illness of the Operator, there is no medical evidence supporting this in relation to the deadline of 4 April 2023.

• The Operator has sent in two documents specifically for the public inquiry. One was created on 27 March 2023 at 19:07 (HGV Walkround January 2023) and the other (Job Description) on 28 March 2023 at 16:52. The meta data shows those documents created at that date and time were by JChemma, who we understand from emails is the Operator’s partner. These do not provide assurance for current safety.

• The medical discharge summary produced for his father’s release from hospital on 13 March 2023 is incomplete – pages 2 and 5 are missing. The summary confirms he will require assistance at home. That was so when the Operator returned the attendance sheet. The ambulance note from 29 March 2023 refers to knee pain requiring pain relief gel and advice to call the GP. There is no evidence to support any subsequent challenges up to and including the Operator’s partner’s statement of further hospital admission on 11 April 2023.

In all the circumstances road safety requires that the case proceeds as listed in the absence of cogent evidence that road safety will not be at risk. The Operator has failed to help himself by persistently failing to take the heed of the call in letter and advice from my caseworker to send documentation that I require in without delay.

 The communications with my office from Mr Kahlon and his partner thereafter culminated in a virtual hearing on 19 April 2023 with Mr Khalon making a further adjournment application. At the conclusion of the hearing, I granted the application but only on the basis that I also suspended the Licence, with a Section 26(6) of the 1995 Act direction, from 23:45 on 20 April 2023 until the conclusion of the Public Inquiry or earlier order confirmed by me in writing. An official transcript of that decision and reasons were obtained and served on Mr Kahlon. Pending receipt of that transcript a note was issued to Mr Kahlon explaining exactly what the suspension meant and the basis upon which I may consider lifting the suspension pending any final hearing. This included “The only way that I may lift the suspension early is if Mr Kahlon sends my office in at least some (including at least all the maintenance – PMI, brake test reports, driver defect sheets) documentation that I have been asking for since 28 February 2023. A transcript of the reasons given for the decision, which is based on the principles set out by the Upper Tribunal in 2012/005 AND Haulage Limited (a spur to action faced with nearly a year of inaction) will follow immediately upon receipt of the transcribers”.

There then followed several attempts by Mr Kahlon to produce sufficient evidence to persuade me to lift the suspension pending the final hearing. It was not until late on 27 April 2023 that I cancelled the suspension, but I did so with further case management directions which had to be complied with. A copy of that decision includes: -

• I will lift the suspension now but upon the basis Mr Khalon must fully engage with the listing process, attend the next hearing, and comply with all my case management directions on time without fail. I REQUIRE ALL the PMIs, Driver Defect Sheets (where defect found), Invoices for work, and wheel and tyre management documents including torque/retorque records scanned and sent to my office by NO LATER THAN 13:00 on Friday 5 May 2023. Any future delays may lead to the suspension being reimposed until the final hearing. This was because Mr Khalon failed to produce any maintenance records prior to the suspension order, only PMIs since 19 April 2023.

On 4 May 2023 the Operator was notified of the new hearing date of 5 July 2023 at 11am. Prior to the hearing, evidence was received from the Metropolitan Police in relation to a roadside encounter on 16 May 2023 – Traffic Offence Report issued for contravening weight restriction of 7.5t, insecure load, unable to download vehicle unit, no Licence disc displayed and no Ministry Plate in vehicle. The Operator sent in additional information also prior to the hearing in relation to the same encounter.

The Public Inquiry finally concluded at The Tribunal Room 4th Floor, Ivy House, Ivy Terrace, Eastbourne, BN21 4QT on 5 July 2023. Mr Kahlon attended for the Operator unrepresented. At the conclusion of the hearing, which was at the end of a long day, I gave Mr Khalon a further few days to send in anything else that he wanted me to consider prior to issuing my written decision. An e mail was received in my office after business hours on 11 July 2023. Regrettably competing commitments have prevented a timelier issue of this decision for which I apologise to all concerned.

8. Documents and Evidence

Before preparing this written decision I have considered the following: -

• The original Public Inquiry bundle.

• My handwritten contemporaneous notes from the hearing on 5 July 2023. I have also listened again to the majority of the hearing due to the delay in completing this decision because the issues and potential outcomes are so serious.

• Email from Mr Kahlon to OTC on 21 March 2023 with attachment.

• Email from Mr Kahlon to OTC 03 April 2023 with attachments.

• Note of telephone conversation between Mr Kahlon and OTC 06 April 2023.

• Email from Mr Kahlon to OTC 11 April 2023 with attachments.

• Email from Mr Kahlon OTC 11 April 2023 to with attachment.

• Note of telephone conversation between Ms Chemma and OTC 11 April 2023.

• Letter to Mr Kahlon from OTC with Traffic Commissioner decision 11 April 2023.

• Email from Mr Kahlon to OTC 12 April 2023 with attachment.

• Email from OTC to Mr Kahlon with Traffic Commissioner decision 12 April 2023.

• Email from Mr Kahlon to OTC 13 April 2023 with attachments.

• Letter from OTC to Mr Kahlon with Traffic Commissioner decision 14 April 2023.

• Email from Mr Kahlon to OTC 18 April 2023 with attachments.

• Email from OTC to Mr Kahlon and Ms Chemma with Traffic Commissioner decision 18 April 2023.

• Email from Ms Chemma to OTC 18 April 2023.

• Email from OTC to Mr Kahlon with Traffic Commissioner decision 18 April 2023.

• Email from Ms Chemma to OTC 19 April 2023 with attachments.

• Letter to Mr Kahlon with Traffic Commissioner Decision 19 April 2023.

• Email from Mr Kahlon to OTC 20 April 2023.

• Email from Mr Kahlon to OTC 24 April 2023 with attachments.

• Email from Mr Kahlon to OTC 24 April 2023 with attachments.

• Email from Mr Kahlon to 25 April 2023 with attachments.

• Email from Mr Kahlon to OTC 26 April 2023.

• Email from OTC to Mr Kahlon with Traffic Commissioner decision 26 April 2023.

• Email from Mr Kahlon to OTC 26 April 2023.

• Email from OTC to Mr Kahlon with transcript of 19/04/23 hearing 26 April 2023.

• Email from Mr Kahlon to OTC 27 April 2023 with attachments.

• Email from Mr Kahlon to OTC 27 April 2023 with attachments.

• Email from OTC to Mr Kahlon with Traffic Commissioner decision 27 April 2023.

• Letter from OTC to Mr Kahlon with new Public Inquiry date 04 May 2023.

• Emal from Mr Kahlon to OTC 05 May 2023 with attachments.

• Email from Mr Kahlon to OTC 05 May 2023.

• Email from Mr Kahlon to OTC 16 May 2023 with attachment.

• Email from Mr Kahlon to OTC 19 June 2023 with attachment.

• Email from Mr Kahlon to OTC 11 July 2023.

• Email from OTC to Mr Kahlon 11 July 2023.

• Email from Mr Kahlon to OTC 11 July 2023.

• South Bucks District Council and another V Porter(FC) (2004) UKHL33, English v Emery Reimbold & Strick Ltd [2002 EWCA Civ 605 and Bradley Fold Travel Limited & Peter Wright v Secretary of State for Transport [2010] EWCA Civ 695 in relation to written decisions generally.

• Upper Tribunal Decisions and other guidance I consider relevant to this determination as listed elsewhere in this Decision; and

• The Senior Traffic Commissioner’s Statutory Guidance and Statutory Directions (‘SGSD) current versions. 

9. Issues

The detailed background above called into question whether the Operator should continue to hold an Operator’s Licence and if that Licence is revoked, whether a period of disqualification is appropriate and proportionate. Taken together, the admitted acts and omissions of the Operator, even with the stated mitigation considered, prevented a full contemporaneous investigation by the Police and DVSA. Mr Khalon’s approach to those investigations and then the original call-in, delayed my assessment of the Operator at a Public Inquiry by a further three months. At the hearing on 5 July 2023, it transpired that the driver stopped on 18 June 2022 was not Mr Khalon, but a driver employed by him. Despite having had the Public Inquiry papers and driver conduct papers since February 2023 Mr Khalon never raised this. It was challenged by the officer immediately before the hearing commenced when he saw and heard Mr Khalon and knew he was not the individual met at the roadside. I declined to adjourn the case further and stated reasons (public interest for conclusion after prior delays and lateness largely due to Mr Khalon). Mr Khalon himself said he did not want a further adjournment. This will all be included in the balancing exercise.

10. Approach

In 2010/043 Stephen Mcvinnie the then Transport Tribunal said (underlining my emphasis): “The overall sense we have of this case is of an operator failing to adhere to the process and timescales as determined by the Traffic Commissioner and seeking, instead, to determine for himself the timeframe for the submission of evidence and the determination of matters. The public inquiry process cannot function in this way. In this day and age, and especially in the essentially inquisitorial framework of the public inquiry system, there is in our view a clear duty on operators to help the Traffic Commissioner deal with cases fairly and justly – and to avoid delay, so far as compatible with the proper consideration of the material issues. The modern trend is to expect parties to tribunal proceedings (and, by analogy, operators) to co-operate generally. This will be especially important, and in the interests of the compliant operator, if it emerges that their operation is under scrutiny by VOSA or the Traffic Commissioner. A wise operator will take whatever steps are required to ensure that he takes advantage of every opportunity to submit relevant and helpful evidence before, and not after, matters come to a head, and well before a Traffic Commissioner sits down to make his or her final decisions.” I note here that Mr Kahlon relied on the stress, anxiety and similar caused by the alleged actions of TfL together with personal and familial physical ailments allegedly preventing him from dealing with the Police, the Courts, DVSA and my office. Mr Kahlon has produced extremely limited medical evidence in support of these assertions, and I have therefore given them very limited weight.

My role is very different to that of magistrates’ courts. Whilst I do not go behind the conditional discharge, as a specialist tribunal I look at the systems in place to ensure safety and fair competition. If the Police or DVSA issue a formal notice for statutory records and other evidence to be produced they must be produced. In so far as any are not available a detailed written explanation is required. The Licence undertakings are not just for systems to be in place but for records to be kept and produced. The required levels of knowledge and approach by any Operator are clearly set out in the Upper Tribunal case law and Senior Traffic Commissioner’s Statutory Guidance and Statutory Directions (and the other relevant documents referred to therein) which are in the public domain. These include by way of example the DVSA Guide to Maintaining Roadworthiness (the version relevant to this decision is October 2020) as per the Upper Tribunal in 2012/030 MGM Haulage and Recycling Ltd.

There is clear and consistent case law from the Upper Tribunal that I am entitled to treat the conduct of a Sole Director effectively as the conduct of the Limited Company and repute or fitness is determined accordingly. Such an approach has received approval from the appellate tribunal on a number of occasions, including 2013/008 Vision Travel International Limited and T2013/61 Alan Michael Knight.

As well as the operator licensing obligations, a company director must exercise his or her statutory duties of demonstrating independent judgement, reasonable skill, care, and diligence (as per sections 173 and 174 Companies Act 2006).

11. Consideration and Findings

11.1 Preliminary

Mr Kahlon’s failure to properly focus on the Inquiry, set out in the Background and Hearings section above, continued on 5 July 2023. Mr Kahlon did not bring the Public Inquiry or driver conduct papers with him. He failed to bring copies of the documents he sent in advance, albeit incomplete. Mr Khalon confirmed that he had read the papers 2-3 weeks previously as well as when they were originally received. This was the same with any subsequent emails sent. The OTC had to produce further copies for him so that I could conduct a meaningful hearing. At the outset Mr Kahlon did agree that evidence given during the driver conduct hearing could be adopted over to the Public Inquiry. Before each section of evidence, I took the time to summarise any written reports and arrange for some of the documents Mr Khalon had sent in to be shown on the Microsoft Hub large screen to be satisfied he was following the proceedings.

11.2 Breach of Licence Conditions and Undertakings.

The overarching principle is that the laws relating to the driving and operating of vehicles will be observed. This is why any Operator must have systems in place to ensure the rules promoting road safety and fair competition are not impugned. Regrettably, this Operator has received an extensive number of DVSA roadworthiness prohibitions and inspection notices and traffic offence prohibitions since the previous two Public Inquiries in 2016. Further one GFP was issued (pages 5-7 and 46). Police prohibitions have also been issued (Police Public Inquiry report and exhibit “Police PI 2” handed in during the hearing on 5/7/23). Further the Police and DVSA have issued advice and warnings at the roadside (Police PI report, exhibit “Police PI 1” handed in during the hearing on 5/7/23 and DVSA MIVR page 44). Accordingly, I make adverse findings under section 26(1)(c)(iii), (ca) and (f) of the 1995 Act.

Mr Khalon accepts the TEVR of Julia Mepsted (pages 94-104), which includes reference to Mr Kahlon failing to produce his DQC and previous weeks charts (22/1/22), Mr Khalon failing to record other work and leaving charts in the tacho head. There was no disciplinary system and advice given for online driver licence checks. It is unclear what the TE was told about the drivers also working for other Operators. The report is accepted by Mr Khalon. I therefore make a formal finding of breach of the undertaking to make proper arrangements that the rules on drivers’ hours and tachographs are observed and proper records kept – section 26(1)(f) of the 1995 Act.

Mr Khalon accepts the VE MIVR (p 38 – 51), save he thinks the VE did see a wall planner and he does not recall one of the inspection notices. As Mr Khalon failed to respond to the MIVR, I prefer the evidence of the VE as it is a contemporaneous written record. Mr Khalon failed to produce any records or evidence of systems across the board to the VE other than some driver daily defect books. This is against a backdrop of the requirement to hold records for 15 months and produce them upon request. Further I find Mr Khalon’s response to the VE that records could not be produced because they were being copied for the criminal court case is untrue because:

The Police s.99 letter in September 2022 required records back to March 2022. The VE required records for 15 months up to November 2022. It follows there should have been a tranche of maintenance records immediately available to the VE up to March 2022.

More time was given by DVSA, the Police and then court but they still were still not produced (more below).

Mr Khalon failed to respond to the MIVR, wherein he could have explained for example why even the delayed date was not met, the fact at least some maintenance was now conducted “in house” and the wall planner was available.

• Mr Khalon also accepts the police evidence on the unsafe load and tyres defect on 18 June 2022. I therefore make a formal finding of breach of the undertaking to make proper arrangements that the vehicles are roadworthy, records kept, and the vehicles are securely loaded – section 26(1)(f) of the 1995 Act.

The failure to notify a change of maintenance arrangements whereby Scania ceased to be used and the work was conducted “in house” (and possibly by others) means I make formal adverse findings under section 26(1)(b) and (h) – material change not notified.

Mr Khalon was uncomfortable being drawn into detail and instead wanted me to accept he had made ‘mistakes’ but learnt from them. As I explained to Mr Khalon many times during the hearing, part of my decision making requires an assessment of how far below the standards an Operator falls and for how long. It remained challenging to get a straight answer to a straight question. He could/would not even tell me which year he started doing the maintenance in house or even if it was pre or post the first national lockdown in March 2020. Mr Khalon just repeated several times that he felt ripped off by the original main dealer and after 5 or 6 years he gave it to someone else for a bit, but they let him down too.  In his e mail dated 11 July 2023 Mr Khalon states: “Regards to the situation to the in house inspection sheets, as I’ve explained to you about scania over charging and then S & A transport in the moving process smaller premises got to busy, we had to wait days on days to get the trucks back but didn’t do a good job or any other garages, we always redone the work better and extra work”. On 18 April 2022 @ 21:32 Ms Chemma sent “..copies of some of the paperwork I managed to locate…” having attended the office earlier that day. It includes the first page only of an FTA printed PMI sheet for EU05VZJ dated 18/2/22. There is a roller brake test printout the same day undertaken at Independent Fleet Care, who may therefore also have done the PMI.

I have turned to the VOL record to try and assist my assessment. This Licence was granted in March 2012, a maintenance contract with Scania dated January 2012 was produced for the application and Scania remained on VOL throughout. The scant information from Mr Khalon indicates it ceased using Scania in or around 2018. On balance it is more likely than not that it was (at the latest) after the first national lockdown which started in March 2020, Mr Khalon was doing some if not all of the PMIs himself, if they were being done. This may in fact be the reason why no PMI sheets were produced to the Police or DVSA and only some were produced for the relevant periods after I suspended the Licence. The police wanted 2 March 2022 – 2 September 2022 and got none. VE Forshaw wanted 15 months prior to 15 November 2022 or at least some evidence of regular safety inspections but got none. At first Mr Khalon only produced to OTC copy PMIs from April 2023 (when the hearing should already have concluded) to get the suspension lifted but I insisted that December 2022 – March 2023 inclusive were produced by 13:00 hrs on 5 May 2023.

The failure to notify the material change was therefore very long standing. Even more serious is the failure to notify a change to “in house” because that brings inquiries from the Licensing Team on facilities available and qualifications or expertise of the individual now maintaining the vehicle. This is apposite here because the so called “in house” approach, demonstrated by the PMIs produced for 3/12/22 – 4/3/23 for 3 vehicles, was a disaster waiting to happen on the kindest assessment.  It got worse when audited against the driver defect sheets.

Mr Khalon told me that the PMI sheets are completed by himself or his life partner during or after the PMI. He makes notes on paper to keep the PMIs clean. Mr Khalon tells me this is contemporaneous with the check and the checks are diligent, but the evidence does not support this. By way of example for EX22HSK there is a PMI dated 3/12/23 which Mr Khalon said is a mistake and should be 3/12/22. He cannot explain why the wrong date is not just on the first page but also on the last page of the PMI, other than he repeated the “mistake”. The PMI odometer is given as 15998 but this cannot be audited as the call-in letter direction of drivers hours evidence for a full 3 months is not met. The earliest evidence of who was driving this vehicle is Mr Khurram on 19 December 2022

Mr Khalon confirmed that he has no formal training and is essentially self-taught. He did not have any facilities for brake performance testing, emissions, headlamp aim etc and did not send them to a third party for elements where such facilities were required. The form used was out of date as it did not include a tyre age check, which has been included since 2021. The overarching concern is that Mr Khalon is not safe to be anywhere near a vehicle save for running repairs. I form this opinion because:

He does not even understand the technical basics of what he should be checking and why. Mr Khalon thinks he “may” have seen a testers manual, I had to explain what the Categorisation of Defects is, and he did not know what an “IM” number is – even when I point out the listings on a PMI sheet. The completion of the forms also clearly demonstrate, even if the inspection was undertaken, Mr Khalon does not pay attention or understand what he is doing. I went into a lot of detail for him at the hearing my disquiet at this reckless approach and that is a matter of record on a transcript. By way of example:

• He puts “n/a” or strikes a line through the box against IM58 (additional braking systems) and IM74 (other dangerous defects).

• He just put a line through IM41 (chassis) on the PMI for EU05VJZ on 4 March 2023. I cannot check on the same vehicle for 21 January 2023 as Mr Khalon failed to produce page 2 of that PMI.

•  No brake performance testing took place. The section is either left blank or crossed through. On occasion he writes a narrative but that just adds to the confusion e.g EX22HSK PMI dated 3/12/23 (sic!) he wrote “to continue monitoring until the next inspection” but there was no brake performance test to monitor it against. On 21/1/23 he wrote “to monitor daily until next inspection” but that is meaningless in terms of a PMI.

• Not a single defect was picked up at PMI for any of the 3 vehicles between December 2022 and March 2023. There are no reported driver defects for EX22HSK and RX07DWA either.

• The veracity of any document is undermined when an audit trail cannot be undertaken (see below for more detail).

• There is no evidence of a wheel and trye management system during this period or at all. On 11 July 2023 Mr Khalon refers to an external tyre company but that is mere words not evidence of a system.

When I audit the PMI and DDR other anomalies arise. There are no reported driver defects for EX22HSK and RX07DWA produced to the Inquiry. The only driver defects allegedly picked up are on EU05VZJ. One is the same day as the PMI on 3/12/22 but the odometer readings do not match (see below). Immediately upon return to service on 24/1/23 there is a driver defect sheet for a loose licence plate, after a PMI on 21/1/23 with the certificate of roadworthiness signed off (indicating the vehicle would be defect free until the next PMI).

The PMI odometer reading for EU05VZJ on 3/12/22 is 614072 but the driver defect sheet for the same day says 616417. Mr Khalon says this is “his mistake” but how is unclear as it is not even close e.g. one digit out. Further the driver defect sheet completed by Mr Khurram that day includes a defect and for which Mr Khalon completes a defect rectification sheet also on 3/12/22 with the same odometer reading as the driver defect sheet of 616417. For the same vehicle there are further anomalies with the next PMI which takes place on Saturday 21/1/23 with a given odometer reading of 615962 but a driver defect sheet for 24/1/23 stating 613812.

I cannot take the audit further because Mr Khalon failed to produce any tachograph records or analysis for this analogue vehicle. Mr Khalon suggests the analogue analysis were dealt with by manual entries. That assertion does not survive a basic audit and then raises as many questions as it fails to answer. The driver defect sheet for Mr Khurram for EU05VJZ dated 3 December 2022 is not reflected in his December 2022 infringement analysis. The analysis includes driving and other work in a digital vehicle for an unconnected scaffolding company that day (and full time in the same vehicle on the two previous days). On the digital analysis he is shown as on duty in the digital vehicle from 07:11 to 18:48 (no removal of the digi-card in that period), with rest then recorded as manual entries until 07.30 on Monday 5 December 2022. The driver defect sheet shows Mr Khurram driving EU05VZJ on 24/1/23. His driver infringement analysis refers to “manual entry” but as a rest day, no work is recorded at all under that manual entry. Mr Khalon insisted the analogue charts were analysed alongside the digital but (i) there is no evidence of this; and (ii) it renders the infringement reports that have been sent as incomplete and of limited weight.

The evidence is overwhelming that such systems there were (if any) were not working and a system that does not work is no system at all. Mr Khalon admits taking his eye off the ball due to the stress of dealing with TFL and other unconnected matters. The findings above are not the result of a short-term distraction but clear evidence that the licence conditions and undertakings have been breached and ignored to a significant level and over a sustained period of time. Whilst I note the TEVR from March 2022, those findings are undermined by the failure to produce anything to the VE and the ongoing drivers hours and tachographs issues subject to my findings above. Further the explanations for the failure to produce to the VE in particular are not accepted based on the factual chronology at paragraph 32.

11.3 Failure to co-operate and produce evidence to the Police, The Magistrates’ Court, DVSA and Public Inquiry.

Mr Khalon’s failures are serious and extensive:

• Failed to properly identify himself to the Police on the phone on 18 June 2022.

• Failed to comply with two s.99 letters issued by the police even when further time was given.

• Failed to comply with a court order from District Judge (Magistrates) on 14 November 2022 to comply with the section 99 letter before the next court hearing listed for 13 December 2022.

• Failed to produce maintenance records to VE Forshaw after his attendance on 15 November 2022. Extra time given by VE as Mr Khalon said all the records were being copied for the court hearing.  As noted above the absent records were not all required for court and were not produced to the police either.

• Failed to ascertain the next court hearing or complying with the previous court order before booking a trip to Egypt and therefore warrant without bail issued.

• Failed to produced records directed in the call-in letter dated 28 February 2023 prior to the original hearing date of 11 April 2023 (save for the late submission of finance).

• Failed to produce all the evidence thereafter, even when the Licence was suspended for a period.

11.4 The Police Encounter on 18 June 2022 – vehicle condition, load security, drivers hours and tachograph offences.

Although included separately above it is apposite to set out here the matters found as per “Police PI 1 & 2”:

• 13 charts more than 42 days old in the vehicle

• 20 mode switch offence.

• Insecure load

• Significantly under-inflated tyre (half required pressure)

• Bulge in side wall of tyre.

All are breaches of the Licence Conditions and Undertakings and were the subject of previous advice to the Operator. Mr Khalon said during evidence that until that morning he had assumed that it was him driving on 18 June 2022 as he has previously been stopped by the Police. I find it incredible that a director is not alerted by the seriousness and extent of the issues that it may not be him at any point until 5 July 2023. This brings me to the next area of concern.

11.5 The Police Encounter on 18 June 2022, Driver Conduct Hearing and false identity of driver.

Sergeant Beckers alerted my caseworker on the morning of 5 July 2023 that the gentleman he spoke to on 18 June 2022 and identified himself as Mr Kahlon was not the same Mr Kahlon who was present for the Public Inquiry. Sergeant Beckers confirmed that he had reviewed his body worn camera video and he was confident that it was not the same gentleman. Mr Kahlon was given advance notice and the body worn camera evidence was reviewed. Sergeant Beckers’ video evidence notes facial differences, a different physical build and the driver having an Indian accent whereas Mr Kahlon has more of a regional accent. Sergeant Beckers confirmed that he spoke to someone on the phone during the encounter and that sounded more like Mr Kahlon who was in the Tribunal Room on 5 July.

At the roadside encounter the driver had Mr Khalon’s digi card, driver licence and driver qualification card belonging and handed them to the police. The photo on the cards were small and old and there were sufficient similarities to Mr Kahlon for him to be accepted at that time. In terms of load security there were pallets of bricks, blocks, and bulk bags with no strapping or similar to prevent any movements. There were gaps between the loads and therefore they could have moved/shifted at any time. The tyre referred to was 50% underinflated and on axle 3 offside tyre bulge there was a partial structure fail, probably caused by the underinflated tyre. In terms of the mode switch offences, Sergeant Beckers could not recall the exact offences but from memory the mode switch always showed drive or break and never and “other work”.

Upon watching the body worn camera evidence I noticed the driver identifying himself and handing over the cards for Mr Kahlon (15.01 in the recording). Before that there was a conversation with an individual identifying himself as “Mr Daljit” (4.40). There is a phone call on the drivers phone with the number identifying of “Jassa EBSL” (4.57 in). Sergeant Beckers also confirmed that the analogue chart that day must have included Mr Kahlon’s name in the centre field otherwise it would have been a red flag to him. I accept that evidence.

I asked Mr Khalon why he had said he was Mr Daljit and a Manager rather than Mr Khalon and the director/owner. Mr Kahlon said that it is part of their culture to use lots of different nick names and Daljit is one of many he is known by. This is repeated in his e mail dated 11 July 2023 but does not deal with (i) the reference to the odd use of the title manager’ or (ii) the ‘coincidence’ of it also being the first name of the actual driver. In terms of the driver having all of his identifying documents, Mr Khalon said that they were kept in a pigeonhole at the office and the driver must have picked his up in error. Mr Kahlon had no explanation as to why he failed to question the driver conduct papers, Public Inquiry bundle or case summary, all of which identified him as driver on the day. The closest Mr Kahlon came to an explanation was that he just saw the report as a narrative of what happened on the day and did not really think about it. Mr Kahlon confirmed that the actual driver’s name was Daljit Singh Toor. Mr Kahlon agreed it was him that Sergeant Beckers was speaking to on the phone that day. Mr Kahlon said that originally due to the passage of time he did think it was him, but he can now see it was the memory of him in the office sorting out the roadside issues that confused him. Mr Kahlon said that he had never got the Police stop form on the 18 June 2022 and if he had then he would have known immediately of the problem. Sergeant Beckers produced (Police PI 1”) the email at 09:47 of the 18 June 2022 whereby the stop form was emailed to the company to the email address used by the company throughout the investigation and these proceedings. This was also whilst the stop was ongoing. When presented with the evidence, Mr Kahlon said that it may have gone into junk email, or he may or missed it. I find that explanation unlikely because Mr Khalon has had no other issues receiving the police e mails and he himself identified in his TfL chronology.

Mr Khalon accepted that he should have told the police exactly who he was on the phone on 18 June 2022. Had he done so then the more serious offending would have been investigated. On 18 June 2022 there is a driver with the wrong person’s identity (x3) which is not a “mistake” on his part because he also uses Mr Khalon’s name for the analogue chart and driver defect sheet.  The police would certainly have interviewed Mr Daljit Singh Toor and required his own drivers hours records to ascertain whether he was driving when he should be at rest. The delay in disclosure and the consequences makes it impossible to form a view whether it was done in consort with Mr Khalon or not. However, that does not diminish the seriousness of the events themselves and how they came about.

11.6 Most Recent Records to Hearing on 5 July 2023.

To try and get the suspension lifted Mr Khalon submitted some records in April 2023. On 26 April 2023 I made the following assessment, which was shared with Mr Khalon the same day:

• My office has received numerous e mails this week from the Operator. IT demonstrates that it has taken the suspension of the Licence for the Operator to properly engage with the regulatory process. This is disappointing. I have PMIs all of which were conducted after the hearing on 19 April 2023 but not before that. The PMIs on 20/4/23 are done by Independent Fleet Care – a known contractor but not the one on the Licence. The roller brake test for EX22 does not have a secondary reading and should be repeated. I note that none of the PMI sheets include tyre codes/age (required since 2021). Two PMIs have driver reportable items, but no driver defect sheets are produced for auditing. I note the driving Licence checks were only done the night before the hearing on 19/4/23. There is no evidence they are being done quarterly.

• Of particular note:

• I have not received ANY maintenance documentation (PMIs, brake test, invoices) that was required from the ‘call in’ letter. Only what the Operator has chosen to show from this snapshot of ‘action’ after the 19/4.

• None of the drivers’ hours/WTD reports include a download of Mr Khalon’s driver card. Even if it is said he was not driving the card should have been downloaded along with the other 2 drivers.

• Mr Khalon got 6 points on his licence for ‘causing or permitting’ an insurance offence on 22 June 2020. This should have been notified to OTC and was not according the VOL record.

• None of the infringement reports have the infringements signed off by the drivers or director. There are infringements in December, January, and February.

• The analysis does not include “lead in” time and therefore does not specifically record walk round check timing.

• The drivers are not recording work they are doing on days when they are not driving every day in the week. All duty must be recorded.  

Some signed infringement reports were received for the same period subsequently, but the veracity of those documents must remain circumspect as to when they were signed. By way of example, Mr Khalon was not at the company premises when they attended on 9 January 2023. The police were told he had not returned to work as expected. The police made contact him later that day and he stated he was sick at home not fully recovered from COVID and has been unwell since he returned from Egypt on 4 January 2023 and unable to work (pages 68-69). On 27 April 2023 I received infringement reports produced by ‘Vicky’ for Mr Khurram’s December activity on 9 January 2023 @ 17:17:34. On page 3 there are the electronic signatures of Mr Khalon and Mr Khurram dated 9 January 2023. Mr Khurram’s evidence is that he would speak to drivers on a dates given but may sign later. This is just further evidence whereby I cannot accept Mr Khalon’s evidence as there are so many anomalies.  

The records received on 5 May 2023 covering December 2022 to March 2023 are assessed in paragraphs 26 to 42 above. The findings are adverse and to a significant degree. The Police roadside encounter with RX07DWA on 16 May 2023 is set out in paragraph 21 above. Mr Khalon’s letter to my office the same day suggests that the Disc and Ministry Plate was being copied for the Inquiry. They are not included in any case management directions. Mr Khalon did send a copy of the Ministry Plate for that vehicle when seeking to lift the suspension on 24 April 2023 (3 weeks before this police encounter). The same e mail included a copy of the vehicle’s disc, but it was not from the vehicle, but a file copy still serrated in the paper square with the letter dated 22/2/22 issuing it. Again, Mr Khalon’s explanations do not survive basic scrutiny. Mr Khalon also expresses surprise that the vehicle unit could not be downloaded by the officer, but no vehicle download reports or investigation details were produced for the hearing on 5 July 2023, with the last evidence submitted on 19 June 2023. In terms of load security and weight prohibition Mr Khalon simply says he has discussed them with the driver. This encounter is a practical demonstration of little change in Mr Khalon’s approach to truth or compliance.

After close of business on 19 June 2023, Mr Khalon submitted evidence of more recent records with an e mail including “I wanted to reassure the traffic commissioner that all three vehicles continue to be safe on the road and I am having inspections completed by a garage. I am making sure that infringements are downloaded monthly….”. The driver infringement reports for May 2023 have the same issues as those identified in terms of ‘manual entry’, proper recording of the analogue vehicle and potential duty for other Operators – see paragraph 41 above. There is a report confirming Mr Khalon has not used his digi-card but again there are no records or reports for the analogue vehicle. The attached PMI for EU05VJZ dated 13 June 2023 has odometer reading 618523. The previous PMI dated 20 April 2023 (submitted 5 May 2023) gave odometer reading 617840. There are no driver defect sheets, charts or chart analysis for any audit trail for the difference. The copy June PMI is incomplete with 3 sections at the bottom of page 1 missing when examined against April 2023 as a template. There is a satisfactory laden roller brake test print out. The attached PMI sheet for EX22HSK again has page 1 incomplete. The attached PMI sheet for RX07DWA is complete but demonstrates that tyre pressures were not recorded (this is one of the sections missing on the other two PMIs).  There is a satisfactory laden roller brake test print out. In summary the evidence is limited, raises some of the previous issues and of limited weight against the numerous adverse findings above.

12. Conclusion

In terms of positives, I can only give limited weight to improvements identified in paragraph 53. I acknowledge Mr Khalon did attend the Inquiry on 5 July 2023 and stayed to the end despite saying he was leaving more than once (usually where apparent inconsistencies and untruths were raised with him). In his e mail dated 11 July 2023 Mr Khalon shows even now a significant lack of awareness of his personal and commercial shortcomings. By way of example, Mr Khalon still suggests that the work he did on the vehicles surpasses that of the contractors but accepts PMIs must be done by them moving forward. Mr Khalon suggests analogue hours will be added to the infringement analysis, but this failure should have been obvious if he had looked at any of the records sent in for the Inquiry. Mr Khalon says he will train the drivers and update himself at the same time using the internet. This is slim comfort as they already have deemed knowledge of advice in the public domain, including the subject of DVSA and police advice. A diligent Operator would recognise the need for formal external training based on failings already identified as well as wider matters. In terms of tyre management, Mr Khalon says that he will “try” and obtain documentation from DMJ Tyres moving forward – hardly robust and leaving wheel loss open to a matter of chance.

There are some cases where it is only necessary to set out the conduct in question to make it apparent that good repute is lost, a Licence should be revoked and an Operator put out of business, as per 2012/034 Martin Joseph Formby t/a G&G Transport, 2012/020 A+ Logistics Ltd. Although this is a Restricted Licence the principle is apposite. Having considered the words, demeanour and conduct of Mr Khalon it is difficult to find any redeeming features. I have Mr Khalon’s future promises which are undermined by a background of two previous Public Inquiries, regular prohibitions, and traffic offences since then, and Mr Khalon’s evidence littered with vagueness and contradictions. Mr Khalon is solely culpable for the disingenuous behaviours identified above across the regulatory and criminal arena preventing several meaningful assessments of compliance.  Whilst Mr Khalon has complied with some specific undertakings given at previous Inquiries it has not been sustained. The overarching impression is Mr Khalon alone determines where his focus will be and when, regardless of the law and propriety.

I have reminded myself of the helpful Upper Tribunal case of NT/2013/082 Arnold Transport Ltd (underlining is my emphasis): -  

• The grant of an operator’s licence does not mean that an operator can then proceed on the basis that the requirements that must be met in order to obtain a licence can thereafter be disregarded.  In our view it is clear both from the terms of the 2010 Act and from Regulation 1071/2009 that these are continuing obligations, which an operator is expected to meet throughout the life of the licence.  It is implicit in the terms of s. 23, which gives the Department power to revoke, suspend or curtail an operator’s licence, that this can take place at any time and for any reasonable cause, including matters covered by the requirements of s. 12 as amended.  It is explicit in s. 24, which provides that a standard licence shall be revoked if at any time it appears that the licence-holder is no longer (i) of good repute, (ii) of appropriate financial standing or, (iii) professionally competent.  The underlining, in each case is ours.  First, we wish to stress that once it appears that the licence-holder is no longer of good repute, or of appropriate financial standing or professionally competent the licence must be revoked because the Act makes it clear that there is no room for any exercise of discretion.  Second, the use of the expression ‘at any time’ makes the continuing nature of the obligations crystal clear.  

• The Tribunal has stated on many occasions that operator’s licensing is based on trust.  Since it is impossible to police every operator and every vehicle at all times the Department in Northern Ireland, (and Traffic Commissioners in GB), must feel able to trust operators to comply with all relevant parts of the operator’s licensing regime.  In addition other operators must be able to trust their competitors to comply, otherwise they will no longer compete on a level playing field.  In our view this reflects the general public interest in ensuring that Heavy Goods Vehicles are properly maintained and safely driven.  Unfair competition is against the public interest because it encourages operators to cut corners in order to remain in business.  Cutting corners all too easily leads to compromising safe operation.  

• It is important that operators understand that if their actions cast doubt on whether they can be trusted to comply with the regulatory regime they are likely to be called to a Public Inquiry at which their fitness to hold an operator’s licence will be called into question.  It will become clear, in due course, that fitness to hold an operator’s licence is an essential element of good repute.  It is also important for operators to understand that the Head of the TRU is clearly alive to the old saying that: “actions speak louder than words”, (see paragraph 2(xxix) above).  We agree that this is a helpful and appropriate approach.  The attitude of an operator when something goes wrong can be very instructive.  Some recognise the problem at once and take immediate and effective steps to put matters right.  Others only recognise the problem when it is set out in a call-up letter and begin to put matters right in the period before the Public Inquiry takes place.  A third group leave it even later and come to the Public Inquiry with promises of action in the future.  A fourth group bury their heads in the sand and wait to be told what to do during the Public Inquiry.  It will be for the Head of the TRU to assess the position on the facts of each individual case.  However it seems clear that prompt and effective action is likely to be given greater weight than untested promises to put matters right in the future.  

The Operator sits in the middle of the second and third category. I remind myself that records only started arriving after I suspended the Licence. Further, this case is more complicated than that.  I have made serious adverse findings about Mr Khalon above - dishonesty, recklessness, and self-interest dating back to at least March 2022, and on the maintenance side earlier (unable to produce records from August 2021 – November 2022). Mr Khalon relies on personal challenges for his “mistakes” but at no point did he stop operating or put in meaningful additional layers of supervision. In any event, such an explanation is self-serving when nothing changes in his attitude even knowing he was the subject of DVSA and Police interest. All should have provided a stark warning.   The reality is that Mr Khalon only had to produce records for 3 vehicles and their drivers at any given time. That should be straightforward even for the least sophisticated Operator with suitable systems in place.  

Trust lies at the heart of operator licensing. Failing to have safe systems to ensure lawful operation of vehicles is a gross breach of trust, especially after previous Inquiries. Misleading DVSA, the Police, the Courts and me and thereby undermining effective investigations and Inquiries is a serious matter. Cumulatively and individually these matters cannot be put down to ‘mere’ negligence or oversight; it is a sustained course of conduct recklessly posing a risk to road safety and subverting regulatory and criminal processes.  In my judgement, the starting point in this case is SEVERE in terms of SGSD No. 10, Annex 4. It is very unlikely on the facts that I can trust Mr Khalon and Essex Building Supplies Limited moving forward. The findings of fact are so serious and undermine Mr Khalon’s credibility and integrity to such a significant degree, that revocation is the only proportionate and appropriate outcome. Accordingly, I have reached the decision set out in paragraph 1 above.

13. Disqualification

The relevant case law and principles are set out in Chapter 13 of the Upper Tribunals Digest of Traffic Commissioner Appeals (2023) and Statutory Document No. 10 paragraphs 64 – 69 and 107 – 109. Disqualification is a potentially significant infringement of rights, and the Upper Tribunal has indicated that whilst there is no ‘additional feature’ required to order disqualification the Operator/individual are entitled to know the reasons. Disqualification is not always ordered in addition to revocation. As per 2009/011 Katherine Oliver and J W Swan & Partners, Catch22Bus Limited, Philip Higgs v The Secretary of State for Transport [2019] EWCA Civ 1022:    

• “The case law indicates a general principle that at the time the disqualification order is made that the operator cannot be trusted to comply with the regulatory regime and that the objectives of the system, the protection of the public and fairness to other operators, requires that the operator be disqualified. Each case must turn on its own merits”.  It follows that there are cases in which the seriousness of the conduct is such that revocation and disqualification are necessary for the purposes of enforcing the legal framework. I recall the reminder by the then Transport Tribunal in 2007/459 KDL European Ltd, which included: “We are satisfied of the need “to make an example of the operator so as to send a warning to the industry as a whole”.  This is consistent with the approach by the five-judge Court of Session in the Thomas Muir case (see paragraph 2(xiii) above) where deterrence is expressly mentioned (“in particular for the purpose of deterring the operator or other persons from failing to carry out their responsibilities under the legislation”).  This is not by way of punishment per se but, as Lord Cullen said, is “in order to assist in the achievement of the purpose of the legislation”. I am satisfied that this is just such a case and hope that operators, transport managers and drivers will be in no doubt as to the view which traffic commissioners take of such behaviours.

In SGSD No. 10. the starting point for disqualification after a first Public Inquiry is 1 to 3 years, but serious cases may merit disqualification of between 5 and 10 years or in certain cases indefinite disqualification. The absence of any regard by the Operator for anything other than the director’s self-interest and its commercial needs undermines the bedrock principles for which the operator licensing regime exists – road safety and fair competition for the benefit of all Operators. The fact that approach continued up to the hearing on 5 July 2023 is indefensible. It is appropriate to send a message around protecting road safety and fair competition. Operators cannot make promises to obtain a Licence, attend two Public Inquiries, continue to disregard many conditions and undertakings at will, and decide when (if at all) to engage with the Police, Courts, DVSA and Traffic Commissioners.  It would be an affront to other compliant and law-abiding operators if, in such a case as this, an order of disqualification is not made.  To do otherwise would support a regime of deliberate obfuscation and excuse putting lives at risk.

As to the appropriate length of disqualification I refer to the helpful guidance in 2012/044 Highland Car Crushers Ltd, 2012/56 & 57 Deep Transport Ltd & Midland Transport Ltd. Mr Kahlon bears a high degree of responsibility for ignoring the requirements for systems and engagement which are meant to protect lives. Lorries are lethal weapons in the wrong hands, and I am entitled to act before “death or serious injury of damage has resulted” from Mr Kahlon’s risky and reckless approach to safety. The adverse findings make this a very serious case. A significant period of disqualification is appropriate and proportionate as a result. Accordingly, I have reached the decision set out in paragraph 2 above.  

I have intentionally included section 28(4) of the 1995 Act with the Transport Tribunal decision 2005/457 Leslie John Ings trading as Ings Transport approved more recently in 2015/078 Black Velvet Travel Limited, Western Greyhound Limited and Michael John Bishop in mind. The Upper Tribunal had regard to the earlier decision and in particular that a traffic commissioner must “ensure that the purpose of an order is not undermined or defeated by a disqualified person becoming involved with the management of another operator’s licence.” Mr Kahlon’s conduct with DVSA, Police, Courts, OTC, and the PI process has a cumulative impact on the level of seriousness and distrust. In my judgement, there is a real risk in future for Mr Kahlon to seek a ‘front’ due to his stated need for at least two vehicles to be viable. Anyone who may be tempted need to understand the consequences of doing so. ‘Fronting’ was helpfully defined in the case of 2012/071 Silvertree, where the Upper Tribunal stated: ‘.. ‘fronting’ occurs when appearances suggest that a vehicle, (or fleet), is being operated by the holder of an operator’s licence when the reality is that it is being operated by an entity, (i.e. an individual, partnership or company), which does not hold an operator’s licence and the manner in which the vehicle is being operated requires, if the operation is to be lawful, that the real operator holds an operator’s licence.’ The case authorities are clear that those found to be ‘fronting’ should expect a finding of loss of good repute.  

13.1 Miss Sarah Bell

Traffic Commissioner

9 January 2024