Decision

Decision for Noble UK Ltd

Published 21 July 2021

0.1 IN THE EASTERN TRAFFIC AREA

1. NOBLE UK LTD – OF2037750

1.1 AND

1.2 HARJINDER SHARMA – TRANSPORT MANAGER

2. TRAFFIC COMMISSIONER’S WRITTEN DECISION

3. Background

Noble UK Ltd seeks a Standard Goods Vehicle Operator’s Licence authorising 10 vehicles and 10 trailers. The Director is Harjinder Sharma, who is also nominated as the Transport Manager.

There is one Operating Centre at Compton Tankers Ltd, Grovebury Road, Leighton Buzzard LU7 4TS. There is one declared contractor showing on the licensing record: L F Truck Tech Ltd, undertaking Preventative Maintenance Inspections of vehicles and trailers at 6-weekly intervals.

The operator was granted an operator’s licence for 4 vehicles and 4 trailers (OK1075092) from 10 December 2015 following a Public Inquiry. In 2016 it attracted an S marked prohibition notice. Its compliance was assessed as unsatisfactory during a maintenance investigation in September 2018. The operator and Mr Sharma were issued with a formal warning and two undertakings attached to the licence: for Mr Sharma to attend a CPC refresher course by no later than 28 February 2019 and a second undertaking regarding driver training has been transferred to this new application. OK1138242 was surrendered on 2 February 2021.

Mr Sharma was also listed as Transport Manager and Director on OF2025914 MNJ Private Limited which is authorised for 2 vehicles and 2 trailers; there are currently no vehicles listed on the licence. The licence came into force on 19 November 2019 after referral to a Deputy Traffic Commissioner. Mr Sharma was added as director on 12 January 2021. In evidence he confirmed that there has been no operation, but that was not notified; subsequent to the hearing, that licence was surrendered.

4. Hearing

The Public Inquiry was listed for 25 May 2021, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was present via video-link in the form of Mr Sharma, Director and Transport Manager, represented by Dominic Bright of Counsel under licensed access and instructed by a consultant, Chris Harris. The case went part-heard, and Mr Sharma appeared in person on 2 June 2021, again represented by Mr Bright.

5. Issues

The Public Inquiry was called for me to consider whether there were grounds to intervene in respect of the time-limited interim licence and specifically by reference to the following sections of the Goods Vehicle (Licensing of Operators) Act 1995:

• 26(1)(a) – Operating from an unauthorised operating centre

• 26(1)(b) – Failure to notify changes including finance and maintenance arrangements

• 26(1)(e) – Vehicles would be kept at operating centre, PMI intervals exceeded and maintenance contractor

• 26(1)(f) – Undertakings that vehicles and trailers would be kept fit and serviceable, that drivers would report defects in writing, and that records would be completed and retained for 15 months

• 26(1)(h) – Material change

• 27(1)(a) – Effective and stable establishment, good repute, financial standing and professional competence – by reference to Mr Sharma’s repute under section 27(1)(b), Article 4 and Schedule 3

• 28 – Disqualification

The hearing was also to allow the applicant opportunity to satisfy me that the statutory criteria are met and specifically by reference to the following section:

• 13A(2)(b) – Good repute.

• 13A(2)(c) – Financial standing.

• 13A(2)(d) – Professional competence by reference to 13A(3)(a) – CPC holder’s repute and ability to meet the statutory duty.

• 13C(4) – Satisfactory arrangements and facilities for maintenance.

As was outlined during the hearing, the operator was the beneficiary of discretion exercised in its favour and in order to allow it to continue operating, as permitted under the Contingency Statutory Document because of the pandemic restrictions. The time limited interim was necessary due to Mr Sharma’s decision to move operations to this traffic area. The previous operation was taken to prove prima facie evidence that it met the requirements, but that interim licence terminates upon the determination of the substantive application.

The operator was directed to lodge documents in support no later than 11 May 2021, to include up to date financial evidence, full maintenance documentation, evidence of drivers’ hours and general compliance. Documentation was instead received in piece-meal fashion from 18 to 24 May 2021. Evidence of financial standing was produced.

6. Summary of Evidence

The application essentially sought to move operations to this traffic area, but in doing so sought a significant increase in authority. The operator applied for an interim licence, stating that due to his move from Colnbrook SL3 0PD to Milton Keynes MK4 4AF, Mr Sharma had ‘just realised’ that the licence fell in a different traffic area. The operator was asked to provide clarity or the dates of moving. Mr Sharma responded on 21 December 2020 and stated that the move took place in September 2020.

The operator was asked to provide finances regarding the application, which demonstrated numerous large deposits from Jaspreet Singh and his wife Ms Meenakshi. The letter of 21 December 2020 explained that the deposits were from J. Singh and M. Meenakshi, who had invested in Mr Sharma’s business. They are described as family friends. Mr J Singh is also director of MNJ Private Limited for which Mr Sharma is also director and was the transport manager at the time of hearing.

The operator was allowed the opportunity to pursue its application at a Preliminary Hearing on 3 March 2021 before Deputy Traffic Commissioner, Mr Dorrington. The operator failed to comply with directions and did not produce all the required maintenance records. The content of that limited evidence, caused Mr Dorrington to call this case to Public Inquiry, having noted no evidence of any brake testing. Attempts were made to blame the previous professional adviser. Mr Bright indicated that the operator continued to delay any contact with the Office of the Traffic Commissioner until 11 May 2021, when he instructed Chris Harris, a transport consultant. It was acknowledged at the Public Inquiry that Mr Sharma was not properly prepared.

On the operator’s application, Mr Dorrington made an adverse finding under section 27(1)(a), so as to allow a Period of Grace until 17 March 2021, to provide evidence of financial standing. Authenticated bank statements were then submitted.

Mr Dorrington referred to the operator/Transport Manager having moved from South East and Metropolitan Traffic Area and that it then operated without a licence in this traffic area. He recorded that the operator failed to provide PMI records, used a different maintenance contractor, failed to provide authenticated bank statements. The Deputy Traffic Commissioner referred to issues of good repute and professional competence, leading to the matters under consideration today. The operator was put on notice of his concerns about the impact on other mandatory requirement repute and professional competence.

A request to extend the interim was received on 19 March 2021. This was declined in the absence of further evidence or documentation in support of the application. The operator was at liberty to reapply should the situation change. Further representations were received dated 30 March 2021, indicating that Mr Sharma had now been moved to attend a Transport Manager CPC refresher, scheduled for 6/7 April 2021. The operator provided a certificate of attendance at OLAT on 27 March 2021. The interim was only then extended to include the Public Inquiry.

As indicated, documentation was not supplied within the timetable set in directions. Copies included a membership certificate for the RHA and a certificate of attendance by Harjinder Sharma at Transport Manager CPC refresher training on 6 and 7 April 2021. I saw evidence of a maintenance planner with a tachograph calibration certificate for YN17 MVG dated 11 May 2021. I was provided with various invoices dating between 5 November 2020 to 20 April 2021, the latter referred to a brake test. I observed the following:

PN16 OYD:

• 26 May 2021 – inspection with roller brake test showing 31%, 25%, 12%, inspection noted chip in windscreen, cab security, oil leeks and issues with road wheels with two Nil driver reports on the same day.

• 9 March 2021 – inspection with under laden brake check (44% GVW) 28%, 25%, 12% - 533 km after the Nil driver report despite centre top marker again, large stone chip etc being recorded.

• 25 February 2021 – inspection but no brake check, Nil driver defect report dated 24 February 2021 – but stone chip in windscreen. Centre top light not working, also noted rear shock absorber corroded.

• 13 January 2021 – inspection but no brake check, Nil driver defect report dated 12 January 2021 – (with inaccurate odometer reading) but light not working, battery cable to cab insecure, also noted near side fuel tank broken and bent.

• 5 November 2020 – inspection with unladen brake check, driver defect report of the same day noted top marker inoperative, front cab mounts worn.   PO66 URA:

• 25 April 2021 – inspection with roller brake check: 29%, 25%, 8% failed after drums and linings recorded, with Nil driver defect report on 20 April 2021 (inaccurate odometer reading) but tyre noted.

• 9 March 2021 – inspection with brake (43% GVW) 30%, 25%, 12%, Nil driver defect report dated 8 March 2021, but tyre worn on outer edge and issues with seat belt.

• 1 February 2021 – inspection but no brake test, broken hose, driver defect report for 30 January 2021 referred to wheel/tyre.

• 14 December 2021 – (10+ weeks since previous inspection) – inspection, but no brake test. Driver defect report for the same day but inspection records deep cut to offside rear tyre and surface cracks to front brake discs.

• 1 October 2020 – inspection, no brake check, with wiper blades, windscreen, coupling light, tyre defect with cut to cords all recorded.

Records for different trailers were provided on this occasion and I noted that trailer C301833 failed a brake test on 26 April 2021 and was retested; C451922 failed its brake test on 20 April 2021, C301464 was tested on the same date.

In the driver reports for April and May 2021, I struggled to find a single defect reported. Mr Jaspreet Singh used the driver defect report to ‘endorse’ a record of driving time, having apparently lost his driver’s card – see YN17 MVG dated 15 April 2021 and a small windscreen chip on 13 May 2021 and 27 March 2021 (only assessment, but no rectification) on PN16 OYD. My assessment of the trailer inspections records previously provided disclosed multiple driver detectable defects, which had not been reported and an absence of recognisable brake checking. I made the observation, having had flicked through the driver defect reports he had supplied, that I could hardly find a single report. I contrasted this with the driver detectable items recorded on the inspection reports. He had told Mr Bright: “so that’s for the drivers. I always try my best with the drivers, OK. To do a proper walk round check. I try my best to check, even on the tracker, whenever they start”. When presented with one of those examples, he replied “So I’m not saying that the driver done the good job, but that may be the reason he didn’t write it down. But I always keep saying to the driver, do the defect sheet”. It was pointed out to Mr Sharma that he was required to have an effective written driver defect reporting system and that, even after he had attended CPC refresher training there appeared to be shortcomings in his management and oversight.

In correspondence Mr Sharma had admitted moving in September 2020. He only lodged the application for a new operator’s licence in this traffic area in December 2020. Mr Bright referred to the ‘statutory defence’ to section 7(2), but this ignored the condition on the existing licence to notify the traffic commissioner of that material change. This would also imply a level of understanding and planning, which was sadly absent from the evidence of any of Mr Sharma’s actions. His evidence was that he had moved from Slough to Milton Keynes in the middle of September 2020, when he rented a house close to his friends. He stated that he and his family were new to the area and at the same time he started a new business. He was driving back to London to be a minicab driver. In the meantime, he bought his first truck. He realised that he was in a different traffic area after speaking to an unidentified person. Mr Sharma suggested that he been away from this industry for two to three years, driving a minicab. I cannot help but contrast that evidence with the fact that OK1075092 was granted from 10 December 2008. In 2016 it attracted an S marked prohibition notice and was the subject of unsatisfactory maintenance investigation in September 2018. Those changes do not appear to have been notified. He was vehement that he made the new application one week after realising that he had moved traffic area but thought that he might have advertised in advance. When this inconsistency was put to him, he became less sure. The version then changed. The suggestion that the operator continued to lawfully operate under OK1075092 simply failed to live up to scrutiny. The use of Bectec to undertake maintenance inspections during that period showed that the vehicles were being operated in and around Leighton Buzzard. On his own admission, he was already paying for the yard in Milton Keynes, where the vehicles were inspected.

Mr Sharma was before the Deputy Traffic Commissioner on 3 March 2021, when his attention was drawn to concerns around brake testing. In evidence at the Public Inquiry, he went as far as to suggest that it was Mr Harris who advised him that it was only necessary to test brake performance of a laden vehicle twice a year. He then went on to claim that my colleague, Mr Denton, had suggested the same at a previous Public Inquiry. Both are qualified in road transport, so I dismissed this suggestion. He also referred his mechanic and a friend, a Mr Farouk, who holds a Certificate of Professional Competence. I asked Mr Sharma what the Guide to Maintaining Roadworthiness advised. I was told: “for the loaded, even at my maintenance provider, I asked him that it should be loaded. And he said, we do these brake tests unladen one, but we do even twice a year. I said, no I need every PMI now, and that’ what is our plan. Our plan is every PMI for the brake test and twice a year loaded”. I compare his approach with the Guide:

5.3 Braking performance assessment As per the annual test, every safety inspection must assess the braking performance of the vehicle or trailer. It is strongly advised that a calibrated roller brake tester (RBT) is used at each safety inspection to measure individual brake performance and overall braking efficiencies for the vehicle or trailer to the annual test standards. However, it is also acceptable to use an approved and calibrated decelerometer to measure overall brake efficiency values for vehicles without trailers….

Brake testing should be undertaken with the vehicle or trailer in a laden condition in order to achieve the most meaningful results; however, due to basic design limitations or restriction caused by the type of cargo normally carried, this is sometimes not possible. Further guidance regarding the use of RBT’s can be found at this link: www.gov.uk/government/publications/the-heavy-vehicle-braketest-best-practice-guide

From my observation of Mr Sharma, he was unaware of the advice contained in the Guide to Maintaining Roadworthiness. He was unable to tell me what the starting point might be. There had been opportunity to present a vehicle for a proper brake test on 26 April 2021 but that resulted in 31% efficiency reading on the service brake and yet he had told me that he was aware that it required a 50% reading to pass. He was equally unaware of the risks following work on the brakes. I referred to the work on the brake drums on PO66 URA and the failure to conduct a laden brake test before it returned to service. I simply did not believe Mr Sharma when he claimed that it must have been retested and/or that he had checked it. He suggested that the record must be with the contractor, but he was well aware of the matters at issue in advance of this Public Inquiry. He then claimed that it was because he was late in lodging documents with this tribunal, but it predated the deadline. Mr Sharma made further promises about future brake testing. He told me that there would be no doubt about applying the Guide going forward; “But in future, that would definitely go, everything is fine” and by the second hearing, he had a copy printed out and I was told that it was kept on his computer table.

At the hearing on 2 June 2021, I noted that maintenance reports for 1 June 2021 (PN16 OYD, PO66 URA, YN17 MVG) had been produced confirming that three vehicles had been presented for roller brake tests, which appeared to pass, although with minor imbalances on the offside. I also noted that the records were still reporting driver detectable defects such as repeaters, markers, marker lights, windscreen damage, tyres and condensation in a head lamp. Following the final hearing, Mr Sharma submitted additional documentation in the form of two invoices from Egerton’s Fleet Services dated 8 and 11 June 2021 purporting to show charges for loads to be added to trailers in advance of roller brake testing. However, the test of trailer C301833 on 8 June 2021 with a combined GVW of 39 tonnes and TAW of 24 tonnes, was carried with a measured weight of 17.68 tonnes and resulted in readings of only 33% and 17% efficiency. The service brake locked before it reached the required efficiency of 45%. A similar approach to C301464 on 8 June 2021 resulted in a service-brake efficiency of only 32% before locking, for C451922 on 9 June 2021 of 31% before locking and on 10 June 2021, a service-brake efficiency of only 34%. All the sheets clearly advise that a service-brake pass on a trailer requires 45% efficiency to be reached before locking. I compare this with the promise given on 12 June 2021 to undertake laden trailer brake testing.

In his own evidence Mr Sharma admitted that he had abandoned the contractor nominated on the application when LF Truck was found to be too busy at Christmas. Mr Sharma blamed the VOL facility and that he was unable to change the details on an interim licence. It did not occur to him to ask the Licensing team to assist him. So he started using Bectec instead. Both LF and Bectec are mobile fitters, but the latter is based in the same yard. After considerable effort (including having to explain the term ‘pit’), I was able to ascertain that the operator’s premises contains most of the facilities required, with the exception of a metered brake performance tester. However, Mr Sharma continued to demonstrate levels of ignorance, for instance, when asked about retorquing he claimed that the wheels had not been removed even though his own inspection documents clearly recorded work which would have required that to happen. He gave the impression of someone out of his depth when asked about the retorque policy, let alone its implementation. He again tried to pass off responsibility to the mobile fitter. I was supposed to be impressed by a verbal “instruction from me, whatever is safe and legal, please do that”, without any record of the work or retorquing. Again, I was assured that Mr Sharma was doing his very best.

In my inspection of the driver defect reports I discovered a driver defect report dated 15 April 2021, which driver Jaspreet Singh (as referred to above) had used to endorse as a record of his driving. According to the ‘endorsement’ he had lost his driver’s card. Mr Sharma confirmed Mr Jaspreet Singh as an employee, his friend and co-Director of MNJ. I was told that he had been to India and had lost his wallet. Mr Sharma could not immediately remember when he returned. There was no initial suggestion that he had failed to isolate as I was told that his first day back at work was on 15 April 2021. I was told that he was asked to drive because another driver had run out of his hours and there was no-one else to cover. Mr Sharma repeatedly asserted that Jaspreet Singh had started back on 15 April and that is when he was told that he has lost his driver’s card. I was told that he and Jaspreet Singh had spoken to DVSA and were told that he could driver for 14 days whilst he awaited a replacement card. It then emerged that the conversation took place on the day before. I indicated that I would like to explore this issue in more detail and made arrangements for the case to go part-heard.

On reconvening the hearing, I noted that infringement reports were being generated. I referred to a driver’s record showing instances of minor daily drive time infringements, shortened weekly and daily rests and WTD infringements. That driver was described as very old and not very good with technology. Mr Sharma had apparently supplied him with a diary to record his hours. There was one incident involving another driver who was 47 minutes over the 6-hour limit. Another driver was the subject of a verbal warning on two occasions during the period of March to May 2021. I noted that the first driver was booked to repeat the relevant driver CPC module. I credited the operator having seen driver instructions and information documents. I referred to a one-page quick reference guide. I was told that there are two separate tachograph analysts. The operator uses a wireless system provided through Webfleet, which can access vehicle and driver information at any time but there is a download approximately twice a week. However, YN17 MVG is not connected to that system, so the RHA is employed to analyse the data from that vehicle. I was also told about the trip analysis report, which caused Mr Sharma some concern due to the unaccounted 18.6 kilometres. It was suggested that this mileage occurred when the vehicle was with Scania. Mr Sharma told me that, working for Amazon, he has been able to gain a general knowledge of the routes which the drivers are expected to take and mainly on the motorway network.

I was referred to additional documentation to show that Scania had picked up vehicle YN17 NVG and on 15 April 2021, Jaspreet Singh collected that vehicle and drove it back to the operating centre. I was referred to an RHA generated tachograph report and the Webfleet print out, commencing at 19:49. I was then referred to a mobile phone print out. Counsel was clear as to his instructions “Mr Singh just came back from India. He’d lost his tachograph. At that time, we needed to pick up the truck from Scania. We did not have a spare driver. We called DVSA to confirm that he can drive with a manual entry”. The mobile phone used at 15:52 that day, belonged to Ms Meenakshi, wife of Jaspreet Singh. Counsel was also instructed that Jaspreet Singh ordered a new driver’s card during that call. Mr Sharma stated that he was sat with his friends in that home during the call. They used that mobile because the reception on his own mobile was not good enough. Mr Sharma told me that he had instructed Jaspreet Singh to endorse a print-out, but he did not follow that instruction. There was a small portion of a strip torn from the tachograph machine, but the endorsement was made on the back of the driver defect report for 15 April 2021.

I regret that I had not spotted a similar endorsement on the back of a defect report dated 12 April 2021, potentially undermining Mr Sharma’s previous evidence, but nor was it brought to my attention. It was found in time for it to be put to Mr Sharma during the hearing. It gave a different perspective on the timing of Mr Singh’s return from India, but Mr Sharma could not remember whether Jaspreet was the subject of self-quarantine at the time when they met at the driver’s house. He told me that the journey on 12 April 2021 was to collect another vehicle where the driver had run out of hours on the M6 and was 50 miles from the operating centre. Mr Singh’s journey was described as a favour. Jaspreet Singh drove to meet the driver and they swapped so that the driver went home in the car and Jaspreet Singh drive the vehicle. I immediately asked for a record of the feeder journey as the rules require time spent travelling to any location in order to take charge of an in-scope vehicle other than the driver’s home or the operating centre, to be recorded as “other work”. Not only did Mr Sharma not have that record he appeared to be unaware of what I was talking about. Mr Bright made a valiant attempt to suggest that the two versions were not incompatible. Even if his changing version of events did not damage his credibility, his apparent ignorance undermined the evidence of his ability to meet the statutory duty.

7. Determination

In respect of the existing interim authority, the burden is on me to satisfy myself that there is sufficient evidence to make an adverse finding. On the application the burden remains with the applicant to satisfy me that the statutory requirements are met, so that I can grant the application. Inevitably, the immediate conduct of the applicant will inform that decision.

The interim licence was granted within the exceptional circumstances of the pandemic and for the benefit of this operator. Its expiry has been extended in order to allow evidence to be taken at this Public Inquiry and for me to reach my decision. It expires with the decision on the substantive application, although my regulatory powers extend to sections 26 and 27 as a result of its grant. As was explained in the course of proceeding, discretion was exercised in favour of the operator in order to allow it to continue to operate, having changed operating centres and the traffic area. The application of the legal principle of proportionality is limited when considering the application. The onus remains on the applicant to satisfy me to the civil standard of proof that the statutory requirements are met. In this case, that decision will inevitably be influenced by the operation under the interim licence. Whether it is also necessary to take action against the operator for shortcomings identified during those operations, does involve a determination on what might be proportionate.

I am satisfied that I may make adverse decisions under sections 26(1)(a) – use of an unauthorised site before the interim authority was granted, 26(1)(b) – failure to notify changes including maintenance arrangements, 26(1)(e) – breach of statement on PMI intervals exceeded and maintenance contractor, 26(1)(f) – undertakings that vehicles and trailers would be kept fit and serviceable, that drivers would report defects in writing, and that records would be completed and retained for 15 months. I add an adverse finding in respect of drivers’ hours and tachographs. These amount to a material change in circumstances under section 26(1)(h).

As the appellate Tribunal usefully identified in 2013/082 Arnold Transport Ltd 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….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…. “actions speak louder than words” . 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.

I went through the up-to-date inspection forms produced for the hearing on 2 June 2021. I drew Mr Sharma’s attention to the inspections dated 1 June 2021. The vehicles had been parked up over the weekend and Bank Holiday and had been inspected by Mr Beck. On PN16 OYD he noted the offside repeater not working, centre marker not working, windscreen damage and an oil leak, none of which had been reported in writing or via the WhatsApp group. I also noted that the contractor had incorrectly transposed the parking brake test. Mr Sharma assured me that he had looked at the documents prior to the hearing. This was not an isolated failure but illustrates my difficulty in placing trust in Mr Sharma to provide effective management.

I have attempted to illustrate how difficult it proved to extract an accurate answer from Mr Sharma. He frequently failed to answer the question which was being asked. I have attributed this to anxiety on his part, but he left me with the strong impression that he wished to provide the answer, which he thought I wanted to hear, rather than the explanation I had requested. It left me with no greater assurance as to his ability to meet the statutory duty as Transport Manager or to oversee compliance as Director. When pressed about the obvious shortcomings, particularly those identified between the Preliminary Hearing and the Public Inquiry, he more often than not provided further untested promises to comply in the future, when he had allowed non-compliance to continue, even after seeing the Deputy Traffic Commissioner. There were several; unattractive attempts to blame others, whilst ignoring published DVSA guidance.

In his submissions, Mr Bright very pragmatically identified only three positive features to his case. He proposed that there had been sufficient and effective changes made, with tangible evidence in support, to ensure compliance. He pointed to the changes in brake testing recently introduced. The brake tests which the operator chose to send me after the hearing appears to undermine that argument. Mr Sharma should have known what was required and I have found no good reason to delay my decision and to reconvene the hearing yet again. Counsel went on to suggest that there was now an effective driver defect reporting system. I am afraid I am unable to reach that same conclusion and point to the matters raised by the inspection records dated 1 June, even then raising questions about the drivers’ ability to report detectable defects. Mr Bright suggested that just because a system was not 100% effective, the operator should be given credit. I acknowledge that this is not a case where the operator has simply ignored the licence requirements, but the Director and Transport Manager has shown, over a period of time, that he is incapable of delivering basic requirements such as this. It was suggested that the operator was working up to compliance and that these proceedings would act as part of Mr Sharma’s education. Even Mr Bright had to admit that all Mr Sharma could offer in respect of the trailers was another set of promises – which he subsequently failed to live up to.

The Arnold Transport decision explains the relevance of trust to the decisions I must reach. It culminates in the question posed in 2009/225 Priority Freight, namely: how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime? That decision also centres on the issue of trust and the actions taken by an operator. It usefully distinguishes between action and the kind of untested promise which Mr Sharma frequently offered. One means of offering reassurance is through robust transport management. I regret that I found that sadly lacking from the facts, which I have attempted to summarise above. I accept that there were a few positives, but Mr Sharma said it best himself: “One thing I want to add I was away from the industry as a taxi driver. I’m back in September and I just, my experience start now. So I’m trying to improve myself day by day. But I had my qualification before, I understand, but experience is another thing”. He attempted to correct himself: “I mean if anything is missing, I will improve myself. That’s all, sir, and in future if you want to check, quarterly, six month, if I’ve got the same problem, you can cancel me for my whole life”.

I have quoted extensively from the case law, in the hope that Mr Sharma may now develop a level of understanding which appeared absent from the hearings. In the appeal case of 2011/036 LWB Ltd, the Tribunal explained that ..it is for the applicant or operator to satisfy the Traffic Commissioner that the person concerned can fulfil the role of transport manager. That role is defined in …the Act, which provides that it means in relation to a business: “an individual who, either alone or jointly with one or more other persons, has continuous and effective responsibility for the management of the road passenger transport operations of the business”. It follows, in our view, that when nominating an individual as a transport manager, (whether on an application for a licence or as an addition to or replacement for an individual who has acted as transport manager), it will be necessary to show that the person concerned will be able to exercise ‘continuous and effective responsibility’….In our view, from the terms of paragraph 3 of Schedule 3, that the appointment of a new transport manager is, on its own, not enough to satisfy the requirement of professional competence. Instead the operator must go further and show that the person appointed is of ‘good repute’ and ‘professionally competent’ and that the person is under contract to provide “continuous and effective responsibility for the management of the road passenger transport operations of the business”. It was accepted that Mr Sharma was ill-prepared before the Preliminary Hearing. I regret that that experience was not sufficient to ensure the types of changes claimed in closing submissions. I repeat, this is not a sentencing exercise. That said, in 2019/025 John Stuart Strachan t/a Strachan Haulage, the Tribunal confirmed that: “one of the aims of the regime is deterrence, both for the appellant and for operators as a whole, who might be tempted to flout the system”. On my assessment of the negative features which are summarised above, even on the most sympathetic viewing, the case falls within the serious to severe starting point.

I have considered whether refusal of the application is sufficient, but that would not address the risk from Mr Sharma’s inability to meet the statutory duty as a Transport Manager. For all the contrition and humility now claimed, that does not make Mr Sharma fit to fulfil the role of Transport Manager. I borrow from the Tribunal’s decision in 2014/050 Andrew Harris trading as Harris of Leicester, on the importance attached to operators complying with the regulatory regime and given that transport managers must: “effectively and continuously manage the transport activities of an undertaking holding an operator’s licence”, it seems to us that whether or not an individual has the character, personality, ability and leadership qualities to ensure compliant operation as an operator or to effectively and continuously manage the transport activities as a transport manager is a factor which can, properly, be taken into account when assessing good repute.” For the factual reasons set out above, I found Mr Sharma to be lacking the necessary skills to carry out this role, even after two sets of refresher training. It is, therefore, both proportionate and necessary to make a finding under section 27(1)(b). It is difficult to contemplate what formal rehabilitation might be set in those circumstances. Any action must confirm his knowledge and confidence to manage, so I have adopted a similar approach to that described by the Tribunal in 2014/058 Angus Smales trading as Angus Smales Eventing – he would need to work with an experienced Transport Manager for a period of no less than 12 months following which he should demonstrate his ability to ensure compliance before a Traffic Commissioner.

I refer to the strongly expressed view of the Tribunal in 2017/9055 Alistair Walter and must question whether I can distinguish between the position of the Transport Manager and the operator. The decision in 2003/350 Al Madina Transport Ltd confirmed the long-established principle: Directors have collective responsibility for the company that they manage. It is their responsibility to set the standards that employees are expected to meet; it is their responsibility to ensure that those standards are actually met, and that undertakings and promises made in their name are complied with. They have a duty, whether the company is large or small, to take proper steps to ensure that there are directors with appropriate knowledge of, and accountability for, the company’s arrangements for securing and monitoring compliance, even where day-to-day management of the transport operation is delegated to others. Accordingly, in our judgment, a Traffic Commissioner is entitled to assume, unless the contrary is proved, that an operator company is responsible and accountable for the actions and failures of its employees, and that directors are all equally responsible for the management of a company, with the result that they are all equally culpable for bad management. In this case, Mr Sharma is the only Director and, as in 2001/068 Dukes Transport, I am entitled to treat the operator as an extension of the sole Director.

It will be obvious that the applicant has failed to satisfy that it meets the requirements under 13A(2)(d) – professional competence by reference to 13A(3)(a) – the CPC holder’s repute and ability to meet the statutory duty, and 13C(4) – satisfactory arrangements and facilities for maintenance. I add to that section 13C(2) due to my concerns about the arrangements for compliance with the laws on drivers’ hours and tachographs. The application must inevitably fail, and the interim licence then terminates under section 24(6). Even if that were not the case, I would find that the operator should be removed from the industry and that the operator has lost its repute under section 27(1)(a). The credit that I can give, and I would say that it is marginal, is reflected in my decision not to disqualify the operator and its Director, but they should be under no misapprehension as any future application will receive the closest of scrutiny.

Richard Turfitt

Traffic Commissioner

21 June 2021