Decision

Decision for A.E. Van Hire Limited

Published 20 January 2022

0.1 IN THE SOUTH EASTERN & METROPOLITAN TRAFFIC AREA

1. A. E. VAN HIRE LIMITED OK2038163

1.1 GOODS VEHICLES (LICENSING OF OPERATORS) ACT 1995

2. TRAFFIC COMMISSIONER’S WRITTEN DECISION

3. Decision

Pursuant to adverse findings under Section 26(1)(a), (b), (f) and (h) of the Goods Vehicles (Licensing of Operators) Act 1995 and Section 27(1)(a) of the 1995 Act the Operator no longer meets the requirements of Section 13A(2) – good repute and professional competence. Accordingly, Licence OK2038163 is revoked with effect from 23:45 on Monday 10 January 2022.

The Operator and Mr Arunas Eitvidas are disqualified from holding or obtaining an Operator’s Licence or being engaged in the management, administration or control of any entity that holds or obtains such a Licence for an indeterminate period from 23:45 on Monday 10 January 2022 as per Section 28 (1), (4) and (5) of the 1995 Act.

4. Reasons

4.1 Approach

There is clear and consistent case law from the Upper Tribunal that a Traffic Commissioner is entitled to treat the conduct of a sole director effectively as the conduct of the Limited Company and good repute or fitness is determined accordingly. Such an approach has received approval from the appellate tribunal on several occasions, such as 2013/008 Vision Travel International Limited and T2013/61 Alan Michael Knight.  Mr Arunas Eitvidas is the sole Director of A. E. Vans Limited. As well as the operator licensing obligations, a company director must exercise his or her statutory duties of demonstrating independent judgement, skill, care and diligence (as per sections 173 and 174 Companies Act 2006).

4.2 Consideration and Findings

The full history is set out in the Public Inquiry bundle case summary and documents, and I do not repeat it here. This is a bad case. Indeed, it is a case where the more I heard the worse it got.

Having reviewed the evidence, I make the following formal findings: -

a. Unauthorised use of an operating centre – the Director admitted that it has not used 31 Brentfield, London as an operating centre for at least the last six months. It chose to use the unauthorised parking for business convenience. It is an aggravating feature that an interim was never applied for and the application to move operating centre at all was withdrawn on 11 November 2021.

b. Failure to co-operate with DVSA - The Operator received the letter dated 24 August 2021 from DVSA requiring a detailed Desk Based Assessment questionnaire and relevant documents to be sent but the Director did not do it. The Director told me that he did not fully understand its importance. I do not accept that explanation bearing in mind the obvious warning in the box on page 2 of the letter.

c. Failure to meet the undertakings in relation to vehicle roadworthiness, drivers hours and Working time Directive - The brake performance testing is erratic, and the majority are unladen. Many of the PMIs do not have tyre pressures recorded. No driver defect sheets were sent in. There is no evidence that drivers’ hours, working time directive and missing mileage were checked prior to the call-in letter. The Director suggests he was checking them but there is no evidence of that, and I do not believe him considering the many other failings and disregard for Licence requirements.

d. Failure to ensure lawful drivers - The Operator used some non-UK vocational licence holders and therefore online checks are not available. Whilst copies of the licenses are taken, the Director does not understand the codes that sit behind them. One driver has a 70MD code and therefore the Romanian licence should have been exchanged for a UK licence within 12 months of first entering the UK because the test was taken in a non -EU country (Moldova). The driver appears to have entered the UK in 2015 from observing his application for National Insurance number. Another licence has a 70 code which is an exchange of licence, but the Director doesn’t know which country’s licence it was exchanged from.

e. Permitted driving without insurance - The Operator’s vehicle insurance only covers the Director to drive. Accordingly, when any of the other drivers have been driving the vehicles, regardless of their driving licence entitlement, they were not insured in any event.

f. Attempting to mislead the Inquiry - The pre-hearing witness statement was misleading in relation to (i) why the original transport manager Harpreet Kapoor resigned; and (ii) the involvement of the proposed transport manager Sandeep Dhillon prior to formal acceptance by me in November 2021. In oral evidence the director said Mr Kapoor resigned because he tried to increase his fees and the Operator refused to pay. In the witness statement I was told that Mr Kapoor resigned because he was too busy. When pressed, the Director admitted it was because of the fees. I return to the situation with Sandeep Dhillon below.

g. No professional competence since Licence grant - The Operator was paying Mr J Dhillon of J Dhillon Transport Ltd to “perform” Transport Manager services by way of monthly retainer pending the outcome of the application to nominate “Sandeep Dhillon”. At no point did the Director require J Dhillon to view any statutory records or similar. The Director’s evidence was that J Dhillon gave advice that he only needed to see any letters from the Traffic Commissioner. Whether or not this is true, the reality is that from the grant of the Licence until the call-in letter there was no professional competence involved in this Licence.

The Director attended a New Operator Seminar on 8 February 2021. With that knowledge fresh in his mind none of the above can be said to be down to ignorance. Further the Operator/Director has deemed knowledge of the advice and guidance in the public domain – 2012/030 MGM Haulage & Recycling Limited. There is copious advice and guidance in the public domain to assist Operators in meeting their Licence undertakings, from checking driver Licence codes and drivers hours rules through to complex organizational structures. The Director failed to avail himself of any of it as he focused on driving and meeting customer needs.

The published Senior Traffic Commissioner Guidance sets out very clearly what is expected of Operator’s in terms of engaging with Transport Managers and what Transport Managers must be allowed to do. In particular, I have reminded myself of: -

2012/025 First Class Freight: While it is true that a transport manager must “effectively and continuously” manage the transport activities of the undertaking for which he or she works and is now required to be familiar with a wide range of topics, including the law in relation to operator’s licensing, that does not mean that the person or persons who control an entity which operates heavy goods or public service vehicles is or are absolved of responsibility. Such a person must know enough to ensure that someone employed as a transport manager is up to the job and they must also be able to supervise them to ensure that they do a proper job. It is, after all, for the director or directors of a company to set the standards which the employees are required to meet.

In February 2020 the Operator nominated Sandeep Kaur Dhillon as Transport Manager. On 24 February 2021 Leeds wrote to the Operator advising that the application form needed to be signed by both the Operator and Transport Manager. Despite this very clear direction the Director told me that he thought Mr Dhillon could and would deal with that on his own. There is no good reason for this belief. In July 2021 Leeds wrote again advising that the signed form had still not been received. It is then signed by the Director and Sandeep Dhillon. The Director confirmed that the form was given to him by Mr Dhillon in the parking area, but the Transport Manager had not signed it at that point. The Director could not explain why, bearing in mind Mr Dhillon was with him. In the witness statement the Director refers to nominated Transport Manager Sandeep Dhillon and continues referring to Mr Dhillon and invoicing for transport manager services. This is misleading.

Sandeep Dhillon is Mrs Sandeep Dhillon. In February 2021 the Director and Mrs Dhillon did not meet personally. The Director’s girlfriend attended to represent the Company. This is simply not good enough. I refer to the Senior Traffic Commissioner’s Statutory Document No.3 on Transport Managers. Directors and Transport Managers MUST meet as that is the only way they can assess each other’s abilities and whether they would be able to work together. The fact that that first meeting did not take place has allowed everything else to follow. Mr Dhillon is J Dhillon of J Dhillon Transport Ltd trading as Heathrow Truck Park. He has been regularly invoicing the Operator for transport manager services. The Director tells me that he believed that J Dhillon was Mr Sandeep Dhillon and the J Dhillon who invoices for parking and Transport Manager services was the same person that would be his formal transport manager. Where the Director also falls into error however is that he has known since December 2021, and before the witness statement was lodged, that J Dhillon is not Mr Sandeep Dhillon and it is his sister Mrs Sandeep Kaur Dhillon who was nominated. However, he allowed the witness statement to be sent in. The Director’s witness statement said that Mr Dhillon had declined to attend the hearing. The Director was not told that my office had made direct contact with Sandeep Dhillon. If I hadn’t asked Sandeep Dhillon direct to attend and assist the Public Inquiry, I would have been none the wiser. On balance, giving weight to the failure to amend the witness statement, I find that this was a deliberate attempt to mislead me.

In summary the Operator has not had any professional competence involvement since the Licence was granted. The Director has allowed this to happen. This has also meant that there has been illegal operation in terms of the operating centre, driver entitlement and invalid insurance without third party scrutiny. It is an aggravating feature that the Director took a positive decision not to respond to the DVSA Desk Based Assessment request in August 2021 preventing the Agency and me from obtaining an assessment at that point.

The only positive features are that the Director (i) attended the hearing; (ii) sent in most of the information required in advance and ontained assistance from a Consultant for the hearing; and (iii) allegedly stopped operating shortly before the hearing until everything is sorted out. When conducting a balancing exercise, it is not enough to persuade me on balance that I can trust the Operator moving forward.

I have reviewed STC Statutory Document No. 10 Annex 4 and there are a number of aggravating features and limited positive which place this case in the SEVERE category. The main negatives are:

• Deliberate and/or reckless act/s by operator and/or drivers that led to undue risk to road safety or unfair commercial advantage

• Ineffective management control and insufficient or no systems and procedures in place to prevent operator licence compliance failings

• Insufficient and/or ineffective changes made to ensure future compliance

• Operator failed to co -operate with or deliberately obstructed enforcement investigation e.g. failure to produce maintenance records or driver records

I was asked by the Director to give him another chance, but he was not a compelling or credible individual. The Operator failed to deal properly with the letter from Leeds in February 2021 requiring the TM1 form to be signed, he took no steps for the nominated Transport Manager (or anyone else) to undertake the role pending appointment, he ignored the DVSA Desk Based Assessment request, and the witness statement put in front of me prior to the hearing was misleading. The evidence was only amended when I pressed for the truth both in relation to Mr Kapoor and Sandeep/J Dhillon. These findings demonstrate a pattern of unacceptable deliberate actions and omissions over a period of one year. I have considered the helpful authority of 2006/277 Fenlon:

It has been said on many occasions that trust is one of the foundation stones of operator licensing. Traffic Commissioners must be able to trust operators to comply with all the relevant laws, rules and regulations because it would be a physical and financial impossibility to police every aspect of the licensing system all day and every day. In addition operators must be able to trust other operators to observe the relevant laws, rules and regulations. If trust between operators breaks down and some operators believe that others are obtaining an unfair commercial advantage by ignoring laws, rules or regulations then standards will inevitably slip and the public will suffer.

The fact that this is a first Public Inquiry is not a barrier to revocation. In my judgment the evidence is overwhelming that trust is lost; good repute is lost and it is entirely appropriate and proportionate to revoke the licence without permitting any period of run off. It is necessary to protect the hard-working legitimate industry, the Operator’s staff, and all road users. The jurisdiction is preventative in nature, and I do not have to wait for an accident to happen before taking action. Even if I am wrong on the good repute of the company, the Licence must be revoked because there is no Transport Manager. I am not prepared to use my discretion and grant a period of grace for a new Transport Manager to be appointed because of the nefarious practices to date. Accordingly, I have set out the decision in paragraph 1 above.

I have reviewed Statutory Document No. 10 paras 60 – 65 and 102 - 105 before considering possible disqualification. Disqualification does not automatically or routinely follow revocation. Whilst no additional features are necessary, an Operator or individual is entitled to know the reasons why if they are being disqualified and the reasons for the period of disqualification. I have assessed the level of risk posed by this Operator, as per 2014/044 Highland Car Crushers. The findings at paragraph 5, the Operator’s conduct at the hearing and the specific aggravating features at paragraph 12 make disqualification appropriate and proportionate even though the Licence is just over a year old. The director’s conduct demonstrates an individual with no regard for risk or the safety of others. He went out of his way to avoid scrutiny by DVSA and a Transport Manager. Having had the opportunity to observe him and hear his evidence in my judgement Mr Arunas Eitvidas is an individual without moral fibre.  

In light of my observations of the unsavory personal attributes it is very difficult to set a definitive period of disqualification. You cannot learn honesty and integrity at a seminar. Time alone may well not find Mr Eitvidas rehabilitated. It is a very serious case and with this in mind I rely on Stat Doc 10 para 103 and set it at indeterminate for now.

MISS SARAH BELL

7 JAN 2022