Decision

Decision for Tahir Karim trading as Sams minibuses

Published 30 June 2021

0.1 IN THE WELSH TRAFFIC AREA

0.2 In the matter of the Public Passenger Vehicles Act 1981 (“the Act”)

1. TAHIR KARIM trading as Sams minibuses PG2027370

2. PUBLIC INQUIRY

2.1 Heard at Municipal Buildings, Pontypridd, CF37 2DP

on

2nd September 2020

2.2 Before Anthony Seculer, Deputy Traffic Commissioner

3. Background

Mr Tahir Karim, trading as Sams minibuses, (“the applicant”), made an application for a Restricted PSV Operator’s Licence for one vehicle dated 31st October 2019.

In correspondence between the applicant and the Central Licensing Unit for the Office of the Traffic Commissioner in Leeds (“CLU”), concerns were raised over a number of criteria relating to the application:

(1) Main Occupation – On the application form the applicant stated, “I work full time at utility warehouse as a salesperson on energy services. I intend to carry out the Psv work at weekends”. The CLU requested further and documentary evidence relating to this employment but only received a number of commission statements.

In January 2020 the applicant stated that his main occupation was “running a residential property company” with an income of around [Redacted]. This was not accepted as a main occupation as the applicant also stated; “in terms of hours spent in this business, it equated to probably around 3 hours per week as it needs little involvement as most work is carried out through the agents that look after the property. Any maintenance is all outsourced”.

(2) Financial Standing to meet maintenance of vehicle – the required sum of £3100 was only met by a one-off deposit on the sale of property.

(3) Operating Centre – ability to park vehicle, complete walk round checks and enter and exit in forward gear.

(4) Facilities/arrangements for maintenance – the applicant proposed an in-house maintenance provider.

(5) Financial History – the application form disclosed no previous liquidations/administrations but Companies’ House checks revealed involvement as a director in a number of dissolved entities.

(6) Arrangements for driving/operation of vehicles – having regard to previous licensing history.

As a result of the above concerns, combining to concerns over fitness to hold a licence, the Traffic Commissioner wrote on 12th May 2020 proposing to refuse the application.

By an e-mail dated 18th May, the applicant requested a Public Inquiry which was convened as soon as practicable after the lifting of Covid 19 restrictions.

4. The Public Inquiry

At the Public Inquiry, the applicant attended represented by Mr Paul Warren, Solicitor. Mr Warren had sent in written submissions prior to the hearing.

5. Evidence

Evidence was heard from the applicant and recorded in full in the transcript of the proceedings. In addition to the Public Inquiry brief, and as stated in the hearing, I considered the written decision from the applicant’s last public inquiry.

6. Findings of Fact

Financial standing was evidenced at the hearing and I am satisfied with regard to the suitability of the proposed operating centre.

The key issues remaining are the applicant’s main occupation, arrangements to comply with the law regarding driving and the operation of vehicles and fitness/repute to hold a licence.

7. Main Occupation

On making the application the applicant stated that his main occupation was full time at utility warehouse as a salesperson. Having failed to provide evidence which satisfied the CLU, on 20th January 2020 the applicant stated that his main occupation was “running a residential rental company”. He also stated that, “with Utility warehouse I am expecting to earn around [Redacted] for the next 12 month period. This is based on the experience I have and working around 15 hours per week”.

At the hearing the applicant stated that he had not worked for Utility Warehouse since Xmas 2019 when work quietened and never picked up. Notwithstanding this, Mr Warren’s submissions still asked me to treat this income as part of his main occupation. On the basis of the applicant’s evidence this request is clearly inappropriate, the applicant having confirmed that he had no intention of going back to Utility Warehouse.

With regard to the “running a residential rental company” as main occupation, the applicant cites his declared taxable profit of [Redacted] as his income. However, he clearly states in his letter to the CLU on 20th January 2020, “The income is generated from long term tenants who pay money into the business account directly. In terms of hours spent in this business, it equated to probably around 3 hours per week as it needs little involvement as most work is carried out through the agents that look after the property. Any maintenance is all outsourced”.

I have regard to the Upper Tribunal decisions regarding main occupation cited in Senior Traffic Commissioner’s Statutory Document No. 13. In the case of Mohammed Akbar trading as Choudhury Transport (T/2017/02) the Tribunal stated:

“Dealing first with the issue of main occupation, the definition of the term “occupation” to be found in the Oxford English Dictionary is in our view a helpful and instructive starting point:
“The state of having one’s time or attention occupied; what a person is engaged in; employment, business; work; toil. .. A particular action or course of action in which a person is engaged, especially habitually; a particular job or profession; a particular pursuit or activity”. That definition must then be considered in the context of Section 13(3) of the Public Passenger Vehicles Act 1981, which sets out the restrictions that an operator must fulfil and continue to fulfil, to be entitled to a restricted rather than a standard PSV licence. It is clear from those restrictions that Parliament did not intend for restricted PSV licence operators to use their licences to operate vehicles on a commercial basis as their main business, employment or work activity. In order to assess whether a PSV operation is the “main occupation” of an operator, it is obvious that the hours dedicated to the PSV licence along with the income generated from it must be considered together and alongside the hours dedicated and income generated from other “occupations” the operator claims to have. It will of course be for the operator to satisfy the Traffic Commissioner that any particular activity other than PSV operation is an “occupation” from which income is generated and that overall, the PSV operation is not the “main occupation”. For future guidance, we do not consider that activities such as the pursuit of a hobby, charitable work or other activities which do not generate an income can fall within the definition of “occupation”. Neither do we consider that the receipt of investment or other income which does not require the operator to dedicate anything more than a minimal amount of time to it, can be considered to be an “occupation”. Each case will of course be fact sensitive.”

It is my finding that the applicant’s income from his properties is far more akin to investment income, rather than occupation income, on the stated facts in this particular case. The applicant’s stated working time of “3 hours per week” (“2 hours per week” at the Inquiry) is clearly within the definition of “a minimal amount of time” although I accept the income is likely to exceed PSV income. Mr Warren’s submission refers to dividends that may be paid “from time to time” as a director of [Redacted]. incorporated in January 2019, but this assertion lacks any supporting evidence as referred to in the caselaw.

He also refers to the taxi business which failed to generate income or profits for the applicant in 2019. The assertion that, with the addition of the PSV, he “hopes” the situation will change is insufficient again for this to satisfy all or part of the main occupation criterion. ## Arrangements to comply with the law regarding driving, maintenance and the operation of motor vehicles.

The applicant has a poor compliance history having had 2 previous licences revoked and having been subject to an 18 month disqualification from holding a licence in 2007. The applicant referred to “maintenance issues” and licences being used incorrectly. The call-up letter referred to licences being held by other family members but being operated as one operation.

At the hearing the applicant could not recall if he had attended the Public Inquiry in 2007. I stated that I would obtain the decision and a copy has been made available for comment to the applicant and his representative prior to making this decision.

The written decision from 2007 reveals that the applicant failed to attend the Inquiry. The Deputy Traffic Commissioner found an appalling disregard for the requirements of the licensing regime and the safety of vehicles and passengers, including school children. The maintenance investigation established a 60% prohibition rate on vehicles inspected and vehicles were deliberately parked away from the operating centre to avoid further prohibitions.

The applicant has done nothing to improve his knowledge other than booking to attend training later in this month. He enlisted no professional assistance in completing the application and, as a result, entered a number of fields incorrectly or incompletely. I refer in particular to section 9 regarding a large bus business and section 11 regarding Financial Information (more to follow).

The applicant entered information on the form regarding tachograph analysis as “not applicable” and his evidence as to tachograph monitoring at the hearing was vague and unsatisfactory. He could not clearly state who would be monitoring the tachographs and drivers’ hours, referring to a “company in Pontypridd” whose name he could not recall.

The mini-bus the applicant intends to operate is over 12 years’ old and has been used for self-hire which traditionally takes a heavy toll on vehicles. Nevertheless , the applicant initially stated that inspections would be 8 weekly and be done by an in -house mechanic. This was corrected at the Inquiry to 6 weekly inspections by an external maintenance contractor. I have no confidence in the applicant’s commitment to vehicle and passenger safety.

On balance, as at the date of the Public Inquiry, the applicant has failed to satisfy me as to the arrangements for complying with the law regarding driving, maintenance and the operation of motor vehicles.

8. Repute

When completing the application form the applicant answered “No” to all the questions in Section 11 regarding Financial History. Companies House checks by the CLU revealed that the applicant had been involved with 14 entities which had been “dissolved”, 10 as director.

In reply to the CLU on 12th November 2019, the applicant apologised for the omission stating that he believed that the insolvencies were too old to be relevant. Regarding [Redacted], he stated that it went into liquidation after his resignation.

Regarding [Redacted] he stated that it “ceased trading due to insolvency some years ago. It had a debt of around [Redacted] which it was unable to pay”.

Regarding [Redacted] he stated “that was dissolved after it became insolvent when its overheads could not be met”.

When asked about previous financial history and the failure to disclose at the Public Inquiry, the applicant stated that he had not understood the questions. He then stated that he had answered “No” to the question regarding involvement with “a company or business that has gone (or is going) into liquidation , owing money” as nobody was owed money when he dissolved companies. This is patently not the case as evidenced by the statement made to the CLU in November 2019 and the liquidator’s report sent in by the applicant in respect of [Redacted] which showed unsecured creditors of [Redacted]. Similarly, the applicant was director of [Redacted] which went into liquidation in 2016 with debts including trade/expenses [Redacted] and HMRC of [Redacted]

I find that the previous conduct in relation to the operation of motor vehicles, lack of consistency, contradictions and, failures to disclose on the application form, all count against the applicant’s good repute and fitness to hold a Restricted PSV Operator’s Licence.

In the period since losing his licence and being disqualified as an operator the applicant has made no effort to improve his knowledge and competence. The only positive is a booking to attend training in mid-September. He failed to take professional advice before making the application in October 2019 and,even allowing for difficulties posed by lockdown, was late in instructing Solicitors in August 2020.

9. Considerations and Decisions

On an application for a new licence the onus is on the applicant to satisfy me that the statutory criteria are met.

Having regard to my findings at paragraphs 7-27 above, the applicant has failed to satisfy me as to the statutory criteria in Section 13(3)(b); 14ZB(a); 14ZC(1)(a) & (b) of the Act. For the above reasons I do not trust the applicant to run a compliant Restricted Operator’s Licence.

The application by Tahir Karim for a Restricted Operator’s Licence is refused.

Anthony Seculer,

Deputy Traffic Commissioner,

8th September 2020