Decision

Decision for Farid Bhaiyat (PC1104175)

Published 13 November 2023

0.1 In the North Western Traffic Area

1. Confirmation of Oral Decision of the Traffic Commissioner

1.1 Farid Bhaiyat (PC1104175)

2. Introduction

Farid Bhaiyat (“The Operator”) is the holder of a restricted public service vehicle operator’s licence PC1104175 issued in October 2011. The licence currently authorises the use of 1 vehicle.

On 3 April 2023, Mr Bhaiyat was encountered by Metropolitan Police officer in his Ford Transit minibus at the London Gateway M1 services. Mr Bhaiyat was the only occupant of the vehicle. Checks revealed that Mr Bhaiyat had driven with another driver’s digicard (belonging to a Gualam Mohammed Ahmed) inserted into the tachograph unit. This meant he had committed a weekly rest infringement. The Police issued Mr Bhaiyat with two higher level graduated fixed penalties of £300 which he accepted.

A Traffic Examiner subsequently carried out a investigation visit on 17 May 2023. The findings were unsatisfactory. There was no evidence of any analysis or system to monitor drivers’ hours. The downloader device in Mr Bhaiyat’s possession appeared to be unused. There was no evidence of driving licence or driver CPC checks being undertaken.

The fixed penalties and DVSA report prompted the call to public inquiry together with a conjoined driver conduct to consider Mr Bhaiyat’s vocational driving entitlement. Mr Bhaiyat was also asked to produce evidence that the main occupation requirement continued to be met as the police and DVSA evidence indicated significant use of the vehicle.

Operator was previously called to a preliminary hearing in 2017 to discuss prohibitions and an unsatisfactory DVSA maintenance inspection visit report.  Having heard Mr Bhaiyat’s assurances, it was decided that no further action was needed.

3. The Call to Public Inquiry

The operator was called up to public inquiry by letter dated 11 August 2023. The call up letter gave notice that the grounds for regulatory action in On findings in accordance with sections 13(3)(b), 17(3)(aa), 17(3)(b) ,17(3)(d) and 17(3)(e) of the Public Passenger Vehicles Act 1981 (“The Act”) were to be considered as well as the provisions for disqualification in Section 28 of the Transport Act 1985. 

The inquiry was initially to be heard on 21 September 2023 but the DVSA advised they had not been able to complete a report on the evidence submitted by the Operator in advance of the hearing. The hearing was adjourned to today, the decision being made regrettably at short notice on the eve of the public inquiry.

4. The Public Inquiry

The Public Inquiry was heard at Golborne today. Mr Bhaiyat was present and was legally represented by Catherine Gilder of CE Transport Law solicitors.

A decision in relation to Mr Bhaiyat’s vocational driving entitlement has been recorded separately.

5. Evidence

The DVSA and I were provided with a bundle of documents in advance of the hearing.

Satisfactory evidence of financial standing was provided. I saw evidence of annual accounts and tax returns today that satisfied me that the “main occupation” requirement continued to be met. However, I consider this is a prudent opportunity to seek some reassurance about the requirement going forward and I record the two relevant undertakings above as offered by Mr Bhaiyat.

The DVSA Traffic Examiner up to date report commented that Mr Bhaiyat had taken on board the advice offered during the inspection visit and was no using his driver’s card to record all journeys in the minibus. Analysis of the tachograph data showed that Mr Bhaiyat was downloading the driver’s card and vehicle unit on a weekly basis well within the period accepted. Only three infringements were noted obvert a 4 month period and these were not at level that would have resulted in more than advice action of encountered at the roadside.

Mr Bhaiyat gave evidence today that the issues started in 2022 when he first acquired a vehicle fitted with a digital tachograph. Having previously complied with the requirement son analogue tachographs, he found himself unable to download and analyse the new information. Since the April encounter, he has now engaged a consultancy, The Training Service Limited to assist him withy this process hence the improvement noted by the Traffic Examiner.

Mr Bhaiay said he had already paid a heavy financial price for incident in April 2023. In addition to the fixed penalties, he also had to fund two alternative minibuses to travel down to collect his passengers and he has had the expense of preparing for this hearing.

6. Findings

The facts of the encounter in April 2023 and the findings of the Traffic Examiner’s investigation report were accepted by Mr Bhaiyat.

Consequently I make the following findings of fact:

• Mr Bhaiyat has failed to honour the undertakings he made in relation to observing the rules on drivers’ hours and tachographs and keeping proper records. This satisfies the ground for regulatory action in section 17(3)(aa) of the Act.

• That matter and the fact that fixed penalty notices have been issued amount to a material change in the circumstances of the licence holder that satisfies the ground for regulatory action in section 17(3)(e) of the Act.

These matters also combine to call into question the good repute of Mr Bhaiyat as operator for the purposes of the provisions of Section 17(3)(d) of the Act.

7. Decision

Having reached the findings of fact recorded above, I have considered the balancing exercise and have considered the positive and negative features by reference to the guidance in the Senior Traffic Commissioner’s Statutory Document Number 10.

I have also considered the representations made by Ms Gilder who argued that I should consider the matters fell within the bracket of “moderate to serious” for the purposes of determining the appropriate outcome.

The positive features that I identify are:

• There do now appear to be appropriate systems and procedures in place to prevent operator licence failings.

• There are appropriate analysis procedures in place to detect falsification, drivers’ hours and/or Working Time Directive infringements.

• Some changes have been made with tangible evidence in support, to ensure compliance.

• The Operator co-operated with enforcement investigation.

• This is the Operator’s first public inquiry.

These positives must be balanced with the following negative features:

• The use of another driver’s card was a deliberate act by Mr Bhaiyat that could have created a risk to road safety and of unfair commercial advantage.

• Prior to the encounter, there was ineffective management control and insufficient or systems and procedures in place to prevent operator licence compliance failings.

• In particular there were ineffective or no analysis procedures in place to detect falsification or drivers’ hours infringements and to ensure appropriate use of tachograph or manual records (including digicards) by drivers.

• The use of another driver’s card is equivalent to evidence of tampering with tachograph recording equipment or use of such devices.

Having balanced those factors listed above and considered the gravity of Mr Bhaiyat’s conduct in April 2023. I consider this matter falls squarely into the category of “serious” for the purposes of regulatory action in accordance with the starting points in Statutory Document 10.

I have gone on to consider the Priority Freight question. namely, “how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime?” The use of another driver’s card was dishonest and must inevitably lead to serious doubts about Mr Bhaiyat’s good repute and trustworthiness. However, the tangible steps that Mr Bhaiyat has taken since that encounter and the fact that it does appear to have been an isolated incident do redress the balance to some extent. I also take note of the consequences that Mr Bhaiyat has already suffered as a result of that very poor decision he made in April 2023.

For that reason, I make a conditional finding that I can trust Mr Bhaiyat to be compliant in future as a licence holder and draw back from revoking the licence today. That condition is that there must be some meaningful alternative form of regulatory action to underline to Mr Bhaiyat the gravity of his past conduct and to ensure it is not repeated.

I determine that the proportionate course of action is to suspend the licence for a period of 28 days. I defer the start of the suspension to allow Mr Bhaiyat to give proper notice to the school authorities that he serves so that they can make alternative arrangements for transport.

In reaching my decision I have also taken account of the audit undertaking offered by Mr Bhaiyat and his willingness to attend an Operator Licence Awareness Training Course.

Mr Bhaiyat must understand that his good repute has been badly tarnished by these events and he will need to work hard to make sure it is restored. If any further issues were to arise and bring him back to my attention, he must be under no doubt whatsoever that his right to continue operating PSVs will then be in real danger.

Gerallt Evans
Traffic Commissioner for the North West of England

2 November 2023