Decision

Decision for Safir Shafi t/a All Travel Minibuses (PF2026428)

Published 16 June 2023

0.1 In the Eastern Traffic Area

1. Written Decision of the Deputy Traffic Commissioner

1.1 Safir Shafi t/a All Travel Minibuses (PF2026428)

2. Background

Safir Shafi t/a Alltravelminibuses holds a standard international PSV operator’s licence PF2026428, granted in March 2020, authorising two vehicles. Mr Shafi is also the nominated transport manager on the licence.

2.1 Previous licence history

Mr Shafi previously held restricted PSV licence PF1080180, granted in 2008. In 2015 he was called to a public inquiry after having been issued with a fixed penalty for tachograph offences. No regulatory action was taken.

In 2017 Mr Shafi was again called to a public inquiry after a DVSA visit had found minimal maintenance records and driver defect reports, no forward planner, and no evidence of any brake checks. Mr Shafi had also received further fixed penalties for tachograph offences.

The operator attended that inquiry with no financial evidence and no evidence of maintenance or other compliance. The traffic commissioner revoked Mr Shafi’s operator licence with immediate effect. In his decision, the traffic commissioner was commented that “the operator is not capable of managing compliance under the operating licence and has repeatedly failed to take appropriate steps despite the previous intervention of the deputy traffic commissioner and then subsequently by [the DVSA] vehicle examiner and traffic examiner. Even at date of the public inquiry he was ill-equipped”.

2.2 Current licence: DVSA investigations

In April 2021 DVSA carried out a desk-based assessment of the maintenance compliance systems of Mr Shafi’s current licence. It found the following shortcomings:

i) no evidence of meaningful brake testing;

ii) no evidence of wheel removal procedure or torque register;

iii) no evidence of a vehicle off-road (VOR) recording system;

iv) some preventative maintenance inspection (PMI) sheets not signed off as roadworthy.

Mr Shafi offered various assurances of better performance and no further action appears to have been taken. Among his assurances were that in future he would keep a register of wheel changes.

2.3 Wheel loss incident and S-marked prohibition

On 1 June 2022, the operator’s vehicle LN17 LKJ lost both wheels from the nearside rear axle, while in passenger service. The vehicle was issued with an S-marked prohibition, denoting a significant failure in the operator’s maintenance system. A DVSA examiner subsequently visited the operator on 8 June 2022 and found the following issues:

i) PMI records did not have a section to record brake temperature readings; neither were they recording tyre tread depths or pressures;

ii) PMI records not signing off the vehicle as roadworthy;

iii) the stated six-week interval between PMIs was not being respected;

iv) the maintenance provider was only being used to identify defects, not repair them. There was no evidence of remedial work being carried out;

v) no VOR system in place;

vi) the operator did not understand the obligation to report incidents affecting safety to DVSA;

vii) ineffective driver defect reporting – all reports examined were marked “nil defect”;

viii) LN17 LKJ, when presented at MOT to clear the prohibition on 10 June 2022, failed the MOT for having wheels of a different size to each other and for an electrical fault;

ix) vehicle V300 SAF had been issued with an immediate prohibition when presented for MOT on 10 May 2022 for (amongst other things) a tyre over ten years old, a dangerous defect with the parking brake, excessive emissions;

x) there were no wheel security or tyre management records or system in place.

The vehicle examiner concluded that, together, the wheel loss incident, the MOT failures and prohibitions indicated “a most serious failing of management control by the transport manager and responsible person”.

3. Public inquiry

In the light of the above, Mr Shafi was called to a public inquiry in his capacity as both operator and transport manager. The call-up letter was sent on 13 January 2023, citing Section 17(1) and (3) of the Public Passenger Vehicles Act 1981. The initial inquiry date of 17 February 2023 was postponed at the request of Mr Shafi, as he had a pre-booked holiday. The inquiry took place in Cambridge on 5 May 2023. Present were operator Safir Shafi, his son and driver Bilad Najam Shafi and DVSA traffic examiner Anita Barwell.

3.1 Further information

In advance of the inquiry DVSA traffic examiner Anita Barwell had provided an assessment of the operator’s compliance with drivers’ hours and tachograph requirements. This noted the following issues:

i) vehicle unit downloads had exceeded the maximum 90 day interval permitted;

ii) driver card downloads had exceeded the maximum 28 day interval permitted;

iii) recent downloads had only been carried out following Ms Barwell’s request for data;

iv) because regular downloads were not being done, driver card and tachograph data was not being analysed by the operator.

A copy of Ms Barwell’s report was provided to Mr Shafi on 13 April 2023.

3.2 Evidence of Safir Shafi

Mr Shafi accepted that he still had not implemented a wheel torque register. But he was tightening up the wheel nuts with a spanner (not a torque wrench). He accepted that he had not implemented a VOR record either.

He had been trying to sell vehicle V300 SAF and had taken it to its MOT where it had failed on a large number of items. It was not in service.

Asked why he had engaged different maintenance providers to i) identify and ii) rectify defects, he said that it was an issue of cost.

Some of the gaps between PMIs were accounted for by the vehicle(s) being off road. LN17 LKJ had been off road from its MOT on 10 June 2023 until 4 October 2023 (although no VOR record had been kept). The vehicle had been repainted. Asked for documentary evidence of this, he replied that he had paid cash in order to avoid the VAT (sic). I noted that the vehicle had not been given a PMI until 26 October, three weeks after Mr Shafi said it had been put back into service.

I asked Mr Shafi why the PMIs were still not recording tyre pressures. He had not noticed that they were not recording this item.

I noted that the 2023 wall planner had no forward planned dates other than periodic entries of “need to book PMI”. I observed that forward planners should include actual PMI dates for the next six months, not just reminders to book them.

Mr Shafi stated that a new vehicle, YN53 VBZ, was a 36 seater coach. I noted that contravened the undertaking on his licence not to base at his operating centre any vehicle with more than 16 passenger seats. Mr Shafi had no explanation for this.

Responding to the traffic examiner’s observation that he was not doing timely downloads of vehicle tachograph unit or driver card data, Mr Shafi said that he kept records of journeys in a diary. He was looking at installing remote download facilities.

Asked about his two recent speeding convictions (which he had failed to notify to the traffic commissioner), Mr Shafi said that he did not think that the speedometer had been working properly.

In conclusion, Safir Shafi said that he was sorry for his shortcomings. He had spent a lot of money on his vehicles and had qualified as a transport manager in 2019. He was also a foster carer, with his wife, and had done training for that. He now proposed to cease fostering and concentrate on his minibus operation. He would henceforth employ the same maintenance provider to both identify defects and rectify them. He would purchase equipment so that tachograph downloads could be carried out automatically. He would like to extend the maintenance interval from six weeks to eight, as the former was expensive. The wheel loss incident had been a shock – it had never happened before. He was now tightening the wheel nuts every two weeks with his spanner, admittedly not with a torque wrench. It had been a tough year for him, with his grandfather dying: he had taken his eye off the ball but would do better in future.

4. Findings

After having considered the evidence, I make the following findings:

a) the operator has failed to fulfil the promise, given on application, that vehicles would be given a preventative maintenance inspection every six weeks. There are large gaps in the records, not all of which can be accounted for by vehicles being off road. VOR records still do not exist, even though DVSA pointed out in April 2021 and again in June 2022 that Mr Shafi needed to keep them (Section 17(3)(a) of the 1981 Act refers);

b) the operator has failed to fulfil his undertaking to keep vehicles fit and serviceable. (Section 17(3)(aa) of the 1981 Act refers). A vehicle suffered a double wheel loss, with the DVSA vehicle examiner commenting that it should have long been visible to both operator and driver that the wheels were in danger of detachment. Both vehicles have incurred prohibitions and both have failed MOTs;

c) the operator has failed to fulfil his undertaking not to keep vehicles with more than 16 passenger seats at the operating centre. A 36 seat coach is currently based there;

d) the operator has failed to fulfil his undertaking to ensure that rules relating to drivers’ hours and tachographs are observed. He has not been downloading vehicle units and driver cards to the legally required frequency and has not been analysing the data;

e) the operator’s vehicles have been issued with prohibitions, including an S-marked prohibition for the loss of two wheels (Section 17(3)(c) of the 1981 Act refers);

f) the operator has failed to fulfil the undertaking to notify convictions within 28 days: two convictions for speeding were not notified. Neither did the operator notify the wheel loss as required on form PSV112 to DVSA.

5. Consideration

I am very concerned that many of Mr Shafi’s shortcomings in compliance were identified by the DVSA’s desk-based assessment as early as April 2021 but were simply not acted upon by the operator. The absence of a wheel torque register was commented upon in April 2021, as was the absence of a VOR record. Although Mr Shafi replied that he would address these issues, he did not. A vehicle lost two wheels a year later. Even at this public inquiry, almost another year after that wheel loss incident, he still does not have a torque register and is using a spanner (rather than a calibrated torque wrench) to tighten wheel nuts. Part of the reason for the extended intervals between PMIs is a failure to record when the vehicles were off the road and failure to give them inspections immediately before they went out back on the road. Astonishingly, proper VOR records are still not kept.

It is indicative of Mr Shafi’s lack of care for detail that, even though DVSA drew his attention to the fact that PMIs should be recording tread depths and tyre pressures, today they are still not recording tyre pressures and Mr Shafi has not noticed this.

Despite having had his previous licence revoked in 2017 for failure to keep proper tachograph records, Mr Shafi is still failing to conduct downloads at the required intervals and has not been analysing data.

5.1 Balancing act

I conducted a balancing act. On the negative side were the issues set out in the findings above. On the more positive side were the fact that vehicles are now being given roller brake tests and that Mr Shafi is prepared to acquire equipment for automatic remote tachograph downloading and to appoint one maintenance provider to both identify and rectify defects (although it is disappointing that did not make these improvements well before the inquiry). My conclusion is that the negatives still heavily outweigh the positives. The only concrete improvement which has actually happened is the roller brake testing.

5.2 Priority Freight and Bryan Haulage questions

I asked myself the “Priority Freight” question of how likely is it that this operator will comply in the future. Given that this inquiry has found almost exactly the same non-compliance issues that the DVSA’s desk-based assessment found in April 2021, and which Mr Shafi promised to address; and given that even after the wheel loss incident he has not seen fit to establish a torque register or acquire a calibrated torque wrench, I conclude that the answer is “highly unlikely”. A negative answer to the “Priority Freight” question would tend to suggest a positive answer to the “Bryan Haulage” question of whether the operator deserves to go out of business. Because of Mr Shafi’s failure over an extended time period to make the necessary improvements to compliance, I am persuaded that he does.

5.3 Transport manager

Having performed the same balancing act as outlined above, I also conclude that Mr Shafi is not of good repute as transport manager (Paragraph 1 of Schedule 3 to the 1981 Act refers). He has lacked the necessary knowledge and dynamism to put into effect the necessary improvements in compliance. He has repeated the lethargy and mistakes that led to the revocation of his restricted licence in 2017. He has failed to notice that he is operating a 36 seater coach contrary to the undertakings on the licence. I can therefore have no confidence in his ability as transport manager to continuously and effectively manage the transport activities of the business. His repute is forfeit.

6. Decisions

6.1 Revocation of licence

For the reasons set out above, the licence is revoked pursuant to Sections 17(1)(a) and (b) and 17(3)(aa) of the 1981 Act. I am allowing the usual 28 day period before the revocation takes effect.

6.2 Disqualification of directors

I have considered whether Safir Shafi should be disqualified from holding an operator’s licence in the future. Because he clearly has not learn lessons from the revocation of his previous licence in 2017 (which was not accompanied by a disqualification order), I conclude that he should now be disqualified. In deciding upon the length of the disqualification, I have taken account of paragraph 108 of the Senior Traffic Commissioner’s Statutory Guidance Document 10. This posits a starting point of between one and three years for a first public inquiry. This is Mr Shafi’s second public inquiry in just over six years (although the first for this licence), and he has had an unsatisfactory desk-based assessment in 2021 and an unsatisfactory maintenance investigation in 2022 with inadequate responses in both cases). I conclude that a disqualification period of two years would be appropriate, proportionate and in line with the Senior Traffic Commissioner’s guidelines.

Having concluded that Safir Shafi has lost his good repute as transport manager, I must also disqualify him from acting as such in the future, under Schedule 3 of the 1981 Act. I have imposed the same disqualification period – two years – as I have done in his capacity as operator, as similar considerations apply.

Nicholas Denton

Traffic Commissioner

8 June 2023