Decision

Decision for High Speed Skip Hire

Published 8 March 2024

1. HIGH SPEED SKIP HIRE LTD

1.1 OPERATOR LICENCE OD2030081

2. PUBLIC INQUIRY AT THE OFFICE OF THE TRAFFIC COMMISSIONER IN BIRMINGHAM ON 08 FEBRUARY 2024

2.1 WRITTEN CONFIRMATION AND FULL REASONS FOR THE ORAL DECISION OF THE TRAFFIC COMMISSIONER AND WRITTEN DECISION ON THE ISSUE OF DISQUALIFICATION

3. SUMMARY

This was a bad case where I gave, though the interpreter, an oral decision after retiring for over 40 minutes at the end of the Public Inquiry. This is my written confirmation, and full reasons, for my decision made on 08 February 2024 and my reserved written decision on the issue of disqualification.

The operator’s licence was revoked, effective 2359 hours on 08 March 2023, under the following sections of the Act; 26(1)(h) [operator now unfit to hold an operator’s licence], 26(1)(a) [continued use, up to the date of the Public Inquiry, of an unauthorised operating centre), 26(1)(c)(iii) [prohibition at MOT], 26(1)(e) [breach of the statements of expectation], 26(1)(f) [breach of the general undertakings as they related to maintenance] and 26(1)(h) [material changes since the licence was granted].

High Speed Skip Hire Ltd is disqualified from holding any type of operator’s licence in any traffic area from 2359 hours on 08 March 2024 for two years until 08 March 2026 under sections 28(1)(1), (3) and (4) of the Act.

Mr Kulwant Singh Dhaliwal is disqualified from holding any type of operator’s licence in any traffic area from 2359 hours on 08 March 2024 for two years until 08 March 2026 under sections 28(1)(1), (3) and (4) of the Act.

4. BACKGROUND

High Speed Skip Hire Ltd were granted a restricted goods vehicle operator’s licence under reference OD2030081 on 25 February 2020. The licence authorises the operation of 3 vehicles and zero trailers with 1 vehicle currently in possession. The responsible person was and remains the sole director Mr Kulwant Singh Dhaliwal.

As a result of a very unsatisfactory desked based assessment by the Driver and Vehicle Standards Agency (“DVSA”) that was carried out on 25 May 2023, and to which no response was said to have been received by the DVSA, a maintenance investigation visit report (“MIVR”) investigation was undertaken by a vehicle examiner from the DVSA, Mr Austin Jones, on 10 August 2023 where 4 areas were marked as “Report to OTC” and 5 areas were marked as “Unsatisfactory” by vehicle examiner Jones.

A traffic examiner visit report was also undertaken but, as I explained in the public inquiry, due to there being insufficient time left in the hearing, I did not (and have not) taken it into account and no findings either way have been made from that evidence. My decision was, and has been, only based on the maintenance related evidence.

5. PUBLIC INQUIRY 0N 08 FEBRUARY 2024

The sole director, Mr Dhaliwal, attended on his own and was not represented. An interpreter had been provided by the Office of the Traffic Commissioner. She confirmed that she had been speaking with Mr Dhaliwal and that they both understood one another properly.

The call up letter in this case was dated 04 January 2024. This letter is very clear and there could be no doubt from the first page alone how important it is. Attached to that letter is a document entitled “Case Management Directions” which are referred to in the call up letter. The Case Management Directions explain what evidence had to be sent to the respective examiners from the DVSA by email, the email addresses to use and by when.

Upon making inquiry with Mr Dhaliwal it was clear that those directions had not been complied with at all.

The call up letter had clearly been read as Mr Dhaliwal had brought the correct three months’ worth of bank statements with him. He would only have known what to bring if the call up letter had been read.

Mr Dhaliwal had brought some other documents with him. None of those were the maintenance related documents detailed in the Case Management Directions.

After completing my initial investigations into why the Case Management Directions had not been complied with and why none of the documents detailed in them had been brought to the Public Inquiry I rose at 10.30am to consider whether the case should be adjourned. I asked my clerk to gather all of the documents Mr Dhaliwal had brought, to make a copy and for a copy to be brought to me in my chambers. After 25 minutes I came back into the Public Inquiry room and read to Mr Dhaliwal my decision which was as follows:

• “I am satisfied that the call up letter was sent to the correct address. I have proof that it was signed for on Monday 08 January 2024 by someone who appears to be “K Dhaliwal”. It was Emailed to the operator as well. A copy of that Royal Mail document has been passed to you Mr Dhaliwal.

• The sole director was only in India from 01 January until 19 January; so back 20 days before today.

• In his absence he was required to have a robust system in place to ensure that important post was not missed and was either dealt with whilst he was away or was brought to his immediate attention when he returned. He was also required to have a system in place to deal with important correspondence written in English; spouse, relative, friend, work colleague etc. to help translate for example.

• If he did not have such a system then that is a matter for him and not for this tribunal.

• After arriving back on 19 January there were 6 clear days to comply with the case management directions which is more than sufficient for such a small operation such as this.

• The fact is that it is more likely than not no maintenance related documents or digital data was sent to the DVSA in response to those case management directions. Those case management directions were clearly brought to his attention per se by the documents themselves and were referred to in the call up letter of 4 January 2024.

• In the circumstances of this case, as I find them to be, there is no persuasive reason to adjourn this Public Inquiry today. It is fair and it is in the interests of justice to proceed. The sole director is here and he can assist as best he can with oral evidence and the papers he has brought to the hearing.

• I have seen docs brought here today. They are….” [and then I detailed what my clerk had copied and Mr Dhaliwal confirmed that they were the only documents brought to the hearing.]

I then explained how the hearing would be undertaken and the hearing began. I took Mr Dhaliwal through the relevant parts of the MIVR prepared by vehicle examiner Jones, I asked Mr Dhaliwal about what he had done to address those specific areas. I gave Mr Dhaliwal the opportunity to tell me about changes that he had made to his maintenance systems and procedures and if there was anything else that he wanted to say. I then asked him about the effect of the different types of regulatory action that could be taken against this operator’s licence and I then asked him about the effect of disqualification.

Finally, I said that I would make a decision that same day and I would then have that decision explained to him with the assistance of the interpreter who was present. After retiring for over 40 minutes I gave a detailed oral decision and then explained to Mr Dhaliwal that I would set it out in writing and that I would reserve my decision as to whether I disqualified him and/or High Speed Skip Hire Ltd from holding an operator’s licence again. I also explained that I would also consider referring the case to the DVSA to consider whether or not to commence a prosecution in the Criminal Courts for the ongoing breach of section 7 of the Act; the use of an unauthorised operating centre.

What follows now, in addition to what I have already said, are my fuller reasons for my oral decision with reasons and my decision upon the issue of disqualification.

6. BURDEN AND STANDARD OF PROOF

The DVSA had the burden of proof to prove any allegations that had been made. The standard of proof is the civil law standard, the balance of probabilities. In other words what is more likely than not to have happened.

In this case I limited my decision just to maintenance. There was not time to fully explore the traffic examiner’s evidence and to be fair to the operator I made no determination either way on anything to do with compliance with drivers hours, tachographs or working time.

7. FINDINGS OF FACT

High Speed Skips Hire Ltd (the “operator”) had failed, without any reasonable or persuasive reason, to have complied with the call up letter and case management directions to supply the DVSA with all of the maintenance related documents that were required for the last 6 months from 10 August 2023. That meant no supplemental report could be written by vehicle examiner Jones that brought me up to date with maintenance compliance.

The operator also failed to bring those documents to the Public Inquiry. I therefore had no tangible evidence detailed in the Case Management Directions before me that showed what the operator had been doing over the past 6 months to restore and ensure maintenance related compliance.

The MIVR document recorded 4 areas marked as “Report to OTC” and 5 areas marked “Unsatisfactory”.

The operator did not dispute in any material way any of the DVSA’s findings in that report.

I went through the principle areas of concern that I had regarding the operating centre, driver defect reporting, maintenance arrangements, vehicle emissions, MOT, wheel management, loading and load security, prohibition assessment and the knowledge of the sole director and any formal training he may have had up to today to improve his knowledge and understanding of operator licensing.

It was clear to me, notwithstanding the acceptance of the DVSAs findings, that the allegations made by the DVSA in that MIVR were evidence based, credible, cogent and highly persuasive. It is more likely than not that all of those allegations were proven.

I repeated all of those proven allegations and adopted them all as my own findings of fact when I retired for the purpose of making my decision.

The operator was still, as at the date of the Public Inquiry, using an unauthorised operating centre at Cranford. There is no excuse for that. Note number 6 on every operator’s licence specifically warns all operators about this. The DVSA brought this to the operator’s attention in the MIVR.

Ignorance of what is required is no defence or excuse. The Upper Tribunal made it clear in the appeal case of LA & Z Leonida TA ETS 2014/024 that:

• “It does not matter whether an operator’s licence is held by an owner operator, a partnership or a limited company because in each case the person or persons responsible for managing the business bear the ultimate responsibility for ensuring that the road transport aspect of the business operates in compliance with the regulatory regime. That means they cannot plead ignorance or put the blame on the transport manager because they are required to have sufficient knowledge of the regulatory regime to ensure compliance in general and the proper performance of the transport manager’s duties in particular.”

This followed on from the Upper Tribunal appeal case of MGM Haulage and Recycling Ltd 2012/030 that said operators are deemed to know the advice and guidance that is in the public domain, and that they cannot say they did not know what they were meant to do if that advice and guidance was readily available. In this case Statutory Document number 4 deals with operating centres and unauthorised operating centres in great detail. That document has been in the public domain for over 10 years on the Gov.UK website.

Any use of an unauthorised operating centre is a criminal offence contrary to section 7 of the Act (it is an “absolute offence” which means that knowledge (intent) is not required to prove the offence, just the act of doing it is enough). Each and every day this operator has been parking its vehicles overnight at Cranford meats an offence had been committed. It also meant, in reality, that the offence had been committed every day for probably hundreds of days as at the date of the Public Inquiry.

The operator started to try to regularise this in January 2024 by advertising the address it is using at Cranford by an advertisement dated 10 January 2024. However, no formal application to change the operating centre has been received at the Central Licensing Office in the Office of the Traffic Commissioner. Such a formal variation application must be received within 21 days of the date of the advert. It was therefore too late, as at the date of the Public Inquiry, to submit such an application using that advertisement as I explained in the hearing.

I regard the use of an unauthorised operating centre to be extremely serious misconduct, but this is aggravated by the fact that (a) this operator has been doing it deliberately, i.e. in full knowledge after the DVSA brought it to Mr Dhaliwal’s attention at the MIVR investigation and (b) it was still being used as at the date of the Public Inquiry almost 6 months after that MIVR was undertaken.

The operator knowingly operated a vehicle without an MOT. The MOT for vehicle GH60GBN expired on 31 October 2022 but it was not given (and then passed) an MOT until 15 March 2023; 136 days or more than 1/3 year. The operator clearly knew it had no MOT from what the paperwork in the public inquiry bundle shows (see pages B91 onwards) and from what Mr Dhaliwal told me in evidence. The use of a vehicle on a public road without an MOT for that length of time is totally unacceptable and it also meant that it was more likely than not that the vehicle was not in a fit and serviceable condition after the MOT had expired because it had had no valid MOT certificate to show that it was.

No up-to-date tangible maintenance related evidence from the operator has been provided to demonstrate that all of the things the operator had been criticised for by the DVSA have been corrected. There was no persuasive reason before me to explain why that was the case.

Therefore, there is only what the operator had said in oral evidence, which carried little evidential weight when not backed up by the PMI sheets, driver defect reporting sheets, brake test results and the wheel removal/retorque records that were requested in the case management directions. A new, and entirely unused driver defect reporting book, was brought to the hearing. That was not what was requested in the Case Management Directions.

The sole director, Mr Dhaliwal, had a significant lack of basic knowledge regarding operating licensing. There were several examples of that in the hearing but these are a few examples; he did not know the difference between the DVSA maintenance investigation and the DVSA drivers hours investigation, he did not know the name of the entity he paid to do his maintenance and he did not know what the “payload” of a vehicle meant.

As at the date of the Public Inquiry Mr Dhaliwal had not undertaken any formal training to improve his knowledge.

The sole director, Mr Dhaliwal, was evasive in answering many of my questions and/or he would respond to my question rather than answering it. Often, I had to ask the same question multiple times and still Mr Dhaliwal would not answer the question fully or at all. I was not, in any way, led to believe there was an issue with the interpreter and therefore the reason for Mr Dhaliwal acting as he did was due to a problem with interpretation.

The other proven matters of serious concern to me were; driver spottable defects found at almost every PMI by the DVSA, no meaningful brake tests being undertaken as evidenced by the DVSA, 40% of PMIs looked at by the DVSA exceeded the specified 6 weekly interval, an ineffective driver defect reporting system which was still present at the date of the Public Inquiry, no evidence of a vehicle emission control system at the time of the MIVR and none brought to the Public Inquiry, no system in place for wheel and tyre management at the time of the MIVR and still no written procedure in place as at the date of the Public Inquiry that included there being no written torquing and retorquing procedure, no load security arrangements at the time of the MIVR and at the Public Inquiry Mr Dhaliwal did not understand the concept of “payload” (despite me explaining it to him) and he had no knowledge of what the actual payload of his vehicle was (so he therefore did not know how much he could place on it as a load either as a gross load or over each axle) and there was a multi-defect prohibition issued at MOT on 08/01/2022 for vehicle RE09AVL.

As at the date of the Public Inquiry it was clear that Mr Dhaliwal, the sole director, still had no, or no effective, management control of the transport operation.

The general undertakings on the operator’s licence that relate to maintenance had been breached because I was not satisfied that the laws relating to driving and operation of vehicles used under the operator’s licence had been observed. I was not satisfied that vehicles had been kept in a fit and serviceable condition. I was not satisfied that drivers reported promptly any defects that could prevent the safe operation of vehicles and that defects were recorded in writing. I was not satisfied that records were kept (for at least 15 months) of all driver reports that record defects, and all safety inspection, routine maintenance and vehicle repair reports and that these are made available on request. I was not satisfied that an unauthorised operating centre was not being used in any traffic area because an unauthorised operating centre was still being used in my traffic area.

8. BALANCING EXERCISE

There were a few positives; the sole director promised to get things done in the future to ensure compliance, he had (just before the Public Inquiry) entered into a contract with someone who would act as a quasi transport manager, some paperwork was handed to me (but none of that was what was requested in the Case Management Directions) that showed some things were being done, a review of where the operator was by Mr Dhaliwal was started on 19 January 2024 when he returned from India. I gave as much credit as I could for all of the positives in this case.

Looking at the operator as it appeared before me in the Public Inquiry I determined that the negatives in this case carried significantly far more evidential weight than the positives. The balance therefore tipped in favour of the negatives.

9. CONSIDERATION OF STATUTORY DOCUMENT 10, ANNEX 4, ISSUED BY THE SENIOR TRAFFIC COMMISSIONER

I considered Statutory Document 10, Annex 4. After repeating all of my findings, and even after giving this operator as much credit as I could, I determined that this case fell into the “Severe” category or at the very top of the “Severe to Serious” category as the correct entry point for regulatory action.

10. REGULATORY ACTION DECISION AND REASONS

After repeating everything again, including the credit I had given to this operator, I then asked myself the question posed by the Upper Tribunal in the appeal case of Priority Freight. I determined that the proportionate answer to that question was is in the negative; I did not think that this operator was likely to be compliant in the future. The  operational history before me, and the continued non-compliance right up to the Public Inquiry, spoke volumes and the sole director had done nothing to satisfy me that given more time the transport operation would be fully compliant on a permanent basis. I simply did not trust Mr Dhaliwal, and I will not trust him going forward in time, to operate a transport operation that is compliant with the general undertakings on an operator’s licence that relate to maintenance.

From all of my findings, and despite the credit I was able to give, it was still proportionate to determine that as a result of the acts and omissions of Mr Dhaliwal, the sole director, the operator was now unfit to hold an operator’s licence. The licence was therefore revoked under section 26(1)(h) of the Act.

After repeating everything again I also determined that it was proportionate to revoke the operator’s licence under sections 26(1)(a) [unauthorised operating centre], 26(1)(c)(iii) [prohibition issued at MOT], 26(1)(e) [breach of the statements of expectation; the extended PMI intervals], 26(1)(f) [breach of the general undertakings as they relate to maintenance as detailed in this document], 26(1)(h) [material changes since the licence was granted].

This case was far too serious for me to undertake any other form of regulatory action.

All orders of revocation take effect at 2359 hours on 08 March 2024.

11. DISQUALIFICATION

This was a bad case. It is a case where I have found that I cannot trust Mr Dhaliwal at all to be compliant. He has had every chance to make good the shortcomings identified in the desk-based assessment and then in the MIVR but has failed to do so. The continued offence, contrary to section 7 of the Act, right up to and including the date of the Public Inquiry and knowingly using a vehicle without an MOT for over 1/3 of a year were bad enough, but added to that were all of the other longstanding areas of non-compliance I have detailed above.

I have considered the Transport Tribunal (as it was before the Upper Tribunal) appeal case of 2006/27 Fenlon where it was held 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 operator 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.”

I have considered the appeal cases on the subject of disqualification including 2018/072 St Mickalos Company Ltd & M Timinis and also 2010/29 David Finch Haulage.

I repeat all of my findings and the proven allegations from the DVSA. Despite all of the credit that I can give to Mr Dhaliwal this is a case where disqualification is not only proportionate but it is also necessary given the level of non-compliance I have found as fact and the lack of trust I have with Mr Dhaliwal.

It is also required to ensure that there is a suitable deterrent to other well-informed operators who might otherwise be tempted to think along the lines of “What is the point of spending all of this money, time and effort in being compliant when there will be very little action taken if I am caught being seriously non-compliant?” It would only take a few operators to start thinking like that before the purpose of this jurisdiction was questioned and the public would suffer.

The proportionate regulatory action is that Mr Kulwant Singh Dhaliwal is disqualified from holding or obtaining any type of operator’s licence in any traffic area, from being a director or partner in any company or partnership that holds or applies for any type of operator’s licence in any traffic area and he is also disqualified from being a majority shareholder in a company that applies for or holds any type of operator’s licence in any traffic area or from being a director, or majority shareholder of a company that is a subsidiary to a company that holds or applies for any type of operator’s licence in any traffic area. These orders of disqualification are made under sections 28(1), (3) and (4) of the Act and the period of disqualification starts at 2345 hours on 08 March 2024 and ends at 2345 hours on 08 March 2026 (a two-year period of disqualification).

It is also proportionate, and in my determination necessary, for the same reasons as detailed above to disqualify High Speed Skip Hire Limited from holding or obtaining any type of operator’s licence in any traffic area also under sections 28(1), (3) and (4) of the Act. The period of disqualification starts at 2345 hours on 08 March 2024 and ends at 2345 hours on 08 March 2026 (a two-year period of disqualification).

The operator is unequivocally warned that operating any regulated vehicle after 2345 hours on 08 March 2024 is an offence which I would ask the DVSA to prosecute in the Criminal Courts and breaching my decision to revoke this operator’s licence also empowers the DVSA to impound any vehicle(s) so operated. Mr Dhaliwal now has actual knowledge of the power of DVSA to impound after 2345 hours on 08 March 2024.

12. CONSIDERATION OF A REFERRAL TO THE LEGAL DEPARTMENT WITHIN THE DVSA

I have very carefully considered whether this case should be referred to the legal department within the DVSA and for them to consider whether or not there should be a prosecution in the Criminal Courts for the continued use of an unauthorised operating centre. I have decided, on this occasion, not to do so.

12.1 Traffic Commissioner Mr M Dorrington

The Traffic Commissioner for the West Midlands

13 February 2024.