Decision

Decision for Amir Nawaz & Umar Riaz

Published 18 August 2022

0.1 IN THE EASTERN TRAFFIC AREA

1. AMIR NAWAZ & UMAR RIAZ – OF2039371

2. CONFIRMATION OF THE TRAFFIC COMMISSIONER’S DECISION

3. Background

Amir Nawaz and Umar Riaz hold a Restricted Goods Vehicle Operator’s Licence authorising two vehicles only. The licence commenced on 28 January 2021. The operators are concerned with the wholesale supply of meat.

There is one Operating Centre at 82A Roman Road, Luton LU4 9SE. There is one declared contractor showing on the licensing record: GS Commercial Repairs Ltd, undertaking Preventative Maintenance Inspection of vehicles at 7-weekly intervals. That was apparently set by the contractor. However, the maintenance schedule produced immediately prior to the first hearing refers to twelve-weekly inspections during 2022.

The partners failed to attend a DVSA new operator seminar despite invitations to events on 7 April, 24 May, and 24 August 2021.

4. Hearing

The Public Inquiry was initially listed for hearing on 11 April 2022, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operators were not present. Mr Nawaz’s brother, Waqas, attended but without authority to speak. He was described as a manager. I was told that there had been a bereavement in the family and that sadly their grandfather in Kashmir had died on 20 March 2022. Mr Nawaz and Mr Riaz are cousins and will be absent until prayers have been said, 40 days after the passing.

For the reasons set out below, I asked for the case to be relisted and that hearing took place on 18 July 2022. The operators were present on that occasion.

5. Issues

The public inquiry was called at the request of the operators and following notice that I was considering grounds to intervene in respect of this licence and specifically by reference to the following sections of the Goods Vehicle (Licensing of Operators) Act 1995:

*( 26(1)(f) – undertakings (vehicle to be kept fit and serviceable, driver defect reporting, complete maintenance records, drivers’ hours, and tachographs,)

• 26(1)(h) – material change with regards to fitness and finance

• 28 – disqualification of directors and operator to be considered.

The operator was initially directed to lodge evidence in support by 28 March 2022, including financial, maintenance and other compliance documentation. The operators failed to comply with those directions. Mr Nawaz arrived 10 minutes before the allotted time. He claimed to have emailed some financial evidence but could not remember who that might have been addressed to. The copies produced in response to the Proposal to Revoke suggest more than sufficient funds, but he failed to bring the original and admissible versions despite the warning at page 8 of the bundle.

6. Determination

A Traffic Examiner, Louise Killingback, carried out a visit on 5 October 2021 (having been rearranged from 28 September 2021) and completed a report on 14 October 2021 (pages 23 to 34). The Examiner engaged with Mr Nawaz and reported that the operators mainly rely on light goods vehicles. The one in-scope vehicle is used infrequently and at busy times.

In the assessment of the Examiner, the operators appeared to have little knowledge of the operator licence requirements and few systems were in place. Her report can be summarised as follows:

• No system in place for training of drivers, monitoring of Driver CPC or driving licence checks.

• Operator not in possession of company card or download device. Driver cards or vehicle unit never downloaded.

• No disciplinary procedures in place

• No forward planning system

• No system for managing working time

• No systems in place for managing vehicle tests, insurance, excise, and tachograph calibration.

The operators failed to respond to the Traffic Examiner, although Mr Nawaz was present during the investigation. The Office of the Traffic Commissioner then wrote on my behalf and received the response at page 39. That was signed on behalf of both the partners. It refers to issues with the operator’s email account as the reason for not attending the new operator seminars. It also claims that the operator did not receive the TE Visit Report, but that it is complying with the licence requirements. No further detail was supplied, but the operators requested a Public Inquiry.

I noted the 100% initial failure rate at annual test resulting from one PRS, based on the aim of the headlights on 8 September 2021 (pages 35 and 36).

At the first date, I referred to the documents produced immediately before that hearing:

• 8 February 2022 – invoice from GS Commercial Repairs Ltd attached to a partial Preventative Maintenance Inspection record of the same date (over 9 weeks from the previous inspection), but no brake test.

• 1 December 2021 – invoice from GS Commercial Repairs Ltd attached to a Preventative Maintenance Inspection record of the same date, odometer 91579 (over 12 weeks from the previous inspection) with brake test results: 52% service brake, 26% secondary and 17% parking brake. The inspection records several driver detectable defects including rear lamp and a holed tyre.

• 29 September 2021 – invoice from GS Commercial Repairs Ltd, referring to wheel being removed for a new tyre but no evidence of retorque.

• 6 September 2021 – invoice from GS Commercial Repairs Ltd attached to a Preventative Maintenance Inspection record of the same date, odometer 87764 (over 22 weeks from the previous inspection) with brake test results: 77% service brake, 40% secondary and 27% parking brake. The inspection records several driver detectable defects, some illegible, including offside headlamp, offside mirror, brake pedal, offside indicator, headlamp aim, handbrake, oil low.

• 1 April 2021 – invoice from GS Commercials Repairs Ltd following the rear brake disc edge having been found to have worn into the brake sensor. It refers to the replacement of rear brake discs, pads, and sensors but no brake performance test.

• 3 March 2021 – invoice from GS Commercial Repairs Ltd attached to a Preventative Maintenance Inspection record of the same date, odometer 81733 with brake test results: 62% service brake and 27% parking brake. The inspection records several driver detectable defects including the nearside rear marker light, offside reversing lamp, off-side mirror, and another marker light.

I was advised that no driver defect reports exists as they simply report any matter to a fitter.

Mr Waqas Nawaz also referred to a photograph of the operator’s ‘company’ card. I noted an invoice from Tachodisc dated 18 January 2022 for what was described as a starter pack. I also saw a copy of a digital inspection certificate dated 13 January 2022 for vehicle WX13 VLW. Waqas Nawaz told me that there were missing mileage and infringement reports, but these were destroyed in an office fire approximately 3.5 weeks ago, following which the download device was found to no longer function. No insurance claim was lodged. Mr Nawaz was advised that the raw data should still be available for analysis.

I was told that the relevant five tonne vehicle was busier during the Covid restrictions but since then the business has relied on 3.5 tonne vehicles.

Noting that neither partner was prevented from corresponding with me but absented themselves without notice, and the absence of documentation to show basic compliance with the operator licence requirements, I referred to the appellate tribunal’s guidance in 2012/005 AND Haulage Ltd and determined that the absence of those basic arrangements potentially posed a serious threat to road safety, if operated, so that suspension of the operations was not only required but proportionate to the apparent risk. I proceeded to make an adverse decision under section 26(1)(h) but also put the operator on notice of the above observations. My decision was held in abeyance until 7 May 2022, to allow the operators opportunity to make representations and to take further action upon return from Kashmir, should they require it. In the meantime, the licence was suspended from 23:45 tonight. It was open to the operators to seek to persuade me to lift that suspension, but they needed to address the matters of concern.

Representations were received on 27 May 2022 (pages 13H and I) and contained apologies for failing to attend, to correspond and the failings as an operator. The response claimed inexperience and sought to excuse the shortcomings during the first year of operation. The operators sought to assure me that they were committed to being good operators and willing to do all that needs to be done to keep the vehicle roadworthy. They made reference to the shortcomings, which I had identified in the correspondence sent to them after the first hearing. They indicated a decision to procure transport manager services to assist them in running and maintaining the heavy goods vehicle. They asked to be given another opportunity to get everything in order and with the help of an external ‘transport manager’ they believed they could be good operators. Sadly, the operators failed to provide original or authenticated financial evidence.

I noted that the operators had at least engaged but the correspondence offered limited assurance as to future compliance. I also noted the absence of financial evidence. There appeared to be little upon which to revisit the initial intervention, but I asked that the case be relisted. The promise to recruit some qualified assistance was encouraging but no timeframe was provided, and I had no means of judging its efficacy and there was no offer to undertake training by the operators.

When it came to the hearing on 18 July 2022, the operators attended and produced acceptable financial evidence, but that is where any progress towards compliance ends. The operators explained that this was because there had been no operation, but there had been no attempt to attend any training. It was perhaps inevitable that I found an evidential basis to make adverse findings under sections 26(1)(f) – undertakings (vehicle to be kept fit and serviceable, driver defect reporting, complete maintenance records, drivers’ hours, and tachographs) and 26(1)(h) – fitness.

Mr Riaz indicated that he had consulted the Guide to Maintaining Roadworthiness but was unable to provide much evidence in respect of compliance systems. The operator described the contractor’s facilities and the brake tester but were not aware of the contractor’s first-time pass rate. Other basic systems such as retorque logs, tyre monitoring etc were not present. I was assured that the operators have purchased a carbonated driver defect reporting book. The responses further illustrated the need for the operators to educate themselves.

The operators had contacted Transport Manager Services Ltd, about the supply of ‘transport manager services’. Reference was made to a joining fee of £500 with a further fee of £350 per month which involved a visit and some form of reactive audit, but I was unclear how this would equip the operators to ensure compliance going forward. On that basis, when I asked the question posed by the appellate Tribunal in 2009/225 Priority Freight and approved in 2013/007 Redsky Wholesalers Ltd, namely: how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime? I was unable to reach a positive conclusion. On the production of financial evidence to support maintenance, I was able to lift the suspension. However, as the other matters had been ongoing since the call up letter dated 7 March 2022, I was satisfied of the need to take deterrent action and address the recurring risk to road safety. I therefore determined to revoke this operator’s licence from 23:45 on 12 September 2022, by which time the operators would need to satisfy me as to their ability to meet the licence requirements under a new licence, if they are to continue operating. I made no order for disqualification and gave a steer as to what actions would be required, including attendance at operator licence awareness training, in order to equip them to comply in future.

R Turfitt

Traffic Commissioner

18 July 2022