Decision

Decision for H&S Builders Merchants Ltd

Published 17 September 2024

0.1 IN THE EASTERN TRAFFIC AREA

1. H&S BUILDERS MERCHANTS LTD  OF2021493

2. WRITTEN DECISION OF THE DEPUTY TRAFFIC COMMISSIONER

3. Public Inquiry on 2nd July 2024

4. Background

The operator holds a restricted licence authorising 10 vehicles and 4 trailers.

On 29th November 2022 vehicle YC65 AWA was stopped by DVSA. The vehicle tachograph recording equipment had not been downloaded since 15 April 2020; when the vehicle was owned by previous keeper, Marshalls PLC. The roadside encounter found the vehicle unit tachograph machine not downloaded but locked into H&S Builders Merchants Ltd. No download took place until 29th November 2022; 958 days since the last download.

Driver Bhupinder Singh was issued with a fixed penalty of £100 for the alleged offence: Driver failed to ensure printing works – no paper. A prohibition was also issued for dangerous condition - load security along with a fixed penalty of £100.

On 14th January 2023 vehicle YC65 AWA was encountered by DVSA and Police Officers at A1306 Wennington Bridge, Thurrock. The driver was Ejaz Ahmed Butt. The digital driver card showed that Mr Butt had changed vehicles and failed to record a manual entry (missing 14 minutes). He was issued with a verbal warning. The DVSA Vehicle Examiner also conducted a construction and use check resulting in an immediate prohibition.

On 3rd May 2023 vehicle GN68 YNU was encountered by Police and DVSA Examiner. A construction and use check were conducted and an encounter was recorded. A PG35EC was issued.

5. The Public Inquiry:

Attending Public Inquiry on 2nd July 2024 were Directors Surjeet Bharji and Jaspal Bharji represented by Catherine Gilder, solicitor. Directors Harbhajan Singh Bharji and Pritpal Singh Bharji did not attend the hearing.

This case is called under sections 26 and 28 of the Goods Vehicles (Licensing of Operators) Act 1995, and specifically:

• Section 26(1)(c)(iii) – prohibition notices
• Section 26(1)(ca) – fixed penalty notices
• Section 26(1)(e) – re inspection intervals and maintenance provider
• Section 26(1)(f) - not honoured undertakings signed up to when applied for licence: vehicles would be kept fit and serviceable; drivers would report promptly any defects or symptoms of defects that could prevent the safe operation of vehicles, and that any defects would be promptly recorded in writing; record keeping.
• Section 26(1)(h) - material change: that you may no longer meet the requirement regarding fitness and the appropriate financial requirement.

The operator produced financial documentation in advance of the hearing demonstrating sufficient finance.

6. Summary of the Evidence

On 13th June 2023 a Traffic Examiner Visit Report was carried out, with Jaspal Bharji present (page 109 in bundle). Neither tachograph evidence nor infringement reports were produced to the TE at the time of the visit. Two PMI records were produced for vehicles LN64 CHO and YC64 AWA. The TE requested that the tachograph data be sent for analysis. At the time of the visit, Mr Bharji informed the examiner of a water leak above his filing cabinets which held the vehicle documents.

In an email dated 29th June 2023, five attachments were received of RAW data for vehicles LN64 CHO (sent twice), LN16 LWA and GN68 YNU. Analysis showed locked company cards and missed downloads.

On 6th December 2023 vehicle GN68 YNU was stopped by DVSA examiners. Driver Bhupinder Singh had failed to conduct manual entries of daily rest and weekly rest. Mr Singh was issued with a fixed penalty of £50 for failing to keep records. Analysis also showed that the number of days since the last download was 180 days and was missed by 90 days.

On 30th January 2024 Jaspal Singh was interviewed under PACE. A relevant section of the interview is below:

It appears you have not been conducting downloads of your vehicle unit tachograph recording equipment in the vehicles listed on your operator licence. Can you explain why?

Q. Negligence, I think it was about around the time of lockdown when he bought the vehicle it was something we should have kept up on, we know it should be done.

Q. Do you know what the legal requirements are for downloading vehicles?

A. Yes.

Q. What is it?

A. 3 months. 90 days.

Q. So please explain why this was not conducted?

A. Probably just too busy.

Q. When I visited the company, you shoed me a company card, number BO000000371060Z2 in the name of H&S Builders Merchants Ltd, do you still have this cards?

A. Yeah, we got the company card here.

Q. You also informed me you utilise the Tachomaster system and due to issues whereby vehicles Units were not being downloaded regularly, you were to seek further training in relation to this will stop have you completed any further training in relation to drivers hours analysis via Tachomaster, and have you any evidence of this?

A. Yeah, I have been phoning them every time I download to make sure I do it right. I tried to do the units information and the gentleman helped and showed me how to do it. He logged into my computer and showed over the phone. He told me what to do and how it’s done.

Q. During my visit to the company could not produce any evidence of training in relation to load security, nor any load security policy in place. Has each any training being conducted with your drivers in relation to this?

A. Verbally yes.

Q. Who gave the training?

A. I did.

Q. What qualifications or training have you undertaken have to train your drivers?

A. Just looked on the net. Internet.

Q. Did you use the Gov.uk website?

A. Gov.uk website plus YouTube channels.

Q. Have you any evidence of your drivers conducting further training in relation to load security?

A. I haven’t got it yet, but I have signed up to Croner, who are setting up private drivers handbooks.

A Propose to Revoke letter dated 15th April 2024 was sent to the operator and, by email dated 23rd April 2024, this operator requested a Public Inquiry.

On 22nd April 2024, a DVSA Vehicle Examiner attended the operating centre. Director, Jaspal Bharji was present. The VE requested maintenance records. Mr Bharji told the examiner that the records were kept in a locked office, and that the key to the office was lost/misplaced and that he could not gain access to the office.

The DVSA evidence was accepted by the operator and so I took it as read.

Maintenance documentation was sent to DVSA in advance of the hearing. VE Forshaw considered the documentation and noted:

• No driver defect reports were submitted.
• MOT failure on vehicle GN68 YNU on 19.03.24 for sideguards/underuns.
• Numerous driver detectable defects found at PMI.
• RBT’s usually conducted but often with insufficient load.
• Inspection intervals being exceeded; one was 109 days without VOR noted (YC65 AWA).

TE Mepsted considered driver compliance documentation submitted prior to the hearing and noted:

• There was no evidence of disciplinary, nor explanation of any infringements.
• There were several concerning infringements noted (pages 191 and 192 of the bundle) including driving without a card and failing to record.
• There were also instances of missing mileage that could be attributed to yard movements.

Mr Jaspal Bharji gave evidence that he had Tachomaster, but they were not producing infringement or missing mileage reports. He told me that he knew how to download cards, but he has booked a course for 8th August 2024 on Teams to understand how to work it. I was told that the drivers didn’t do much driving, maybe 4-5 hours a day, so I should be assured that there would unlikely be infringements. Mr Bharji went on that he is thinking about installing automatic download equipment, but he couldn’t be specific when this would be.

I was told that none of the driver have had drivers’ hours training.  He went on “wouldn’t that be on the CPC?”. He told me that he had spoken to drivers about infringements and would be putting it in writing but could not offer any further explanation as to why this has not happened so far.

TE Mepsted further noted in her most recent report: “A vehicle registration: LK65CHJ, being a 32000kgs specified on operator licence number OF2032934 JDS Concrete London Ltd has been utilised by Driver Dumitriu Valeriu Ursache. This driver also operates vehicles specified on H&S Builders Merchants ltd operator licence, swops vehicles during the day to LK65CHJ. LK65CHJ specified on JDS Concrete London Ltd operator licence on 28/9/2020, this vehicle was removed of H&S Builders Merchants Ltd OF2021493 on 29/9/2020. H&S Builders Merchants Ltd would have a margin to operate a hired vehicle during the period analysed. JDS Concrete London Ltd has a Director listed as Jaspal Bharji.”

Mr Jaspal Bharji gave evidence to explain these findings; that he also has a concrete business that operates 1 vehicle. He has one driver Dimitru-Valeriu Ursache who works for the concrete business but sometimes works on this operation.

I received training certificates dated from June 2024 for ‘Safe loading and vehicles checks’ and ‘Digital tachograph manual entries’ courses for Bhupinder Singh, Dimitru-Valerin Ursach, Florin Marolache, Jaspal Singh Bharji and Koorosh Ghasemi. Jaspal Singh Bharji also completed an OLAT course.

In respect of the driver training, I enquired as to the form of the training and was told it started at 10am and lasted 2-3 hours.  It was individual with each driver, and each had about 30 mins to cover the 3 topics in the certificates. I was told that no paperwork was provided to drivers and with some drivers he only spent a short amount of time (about 10 minutes).  I am concerned as to the sufficiency of this training.

Mr Jaspal Bharji told me he had told them previously he had told drivers how to strap loads, but he didn’t have training himself. He gave evidence that he thought they would know how to do it. He went on that he would still give training to drivers going forward.  He told me that he learnt a lot from the OLAT course.

I was told by Ms Gilder that a meeting will be arranged with Bill Street, Transport Consultant, and an undertaking was offered that he would be engaged going forward. I heard evidence that Mr Jaspal Bharji contacted Bill on 18th June 2024 (page 228 of the bundle). There was an acceptance of serious failings.

Mr Jaspal Bharji gave evidence that the vehicles are genuinely operated within a 30-mile radius. He told me that he was aware of the need to download every 90 days but didn’t do it through “laziness”. He told me that he didn’t know who the driver stopped didn’t have tacho rolls, “maybe he cleared his cab out and threw them away” was offered as an explanation. Going forward. I was told that this operator now records the fact that rolls are given out.

Driver walk around training was only given recently I was told (evidenced by the certificate I received). I was told that the operator has just signed up to PreDrive but are not using it yet for driver defect reporting.

Mr Jaspal Bharji gave evidence that he has been told that he should do gate checking going forward but he has not had any training on walk around checks, other than that delivered recently. The form provided to DVSA at page 187 has not been used yet I am told. When further questioned by Miss Gilder, Mr Bhaji accepted that he could use the consultant for this.

In respect of maintenance Mr Jaspal Bharji gave evidence that he had a wall planner, and he was responsible for ensuring vehicles went in for maintenance.  He reiterated that the vehicles didn’t do much mileage. In respect of extended maintenance periods, he said he would “now make an effort”. I challenged this statement given this operator’s mechanical prohibition rate of 71.43% and MOT failure rate.

Mr Jaspal Bharji told me he was looking for a new fitter and had spoken to a couple over the last few weeks. I was offered an undertaking that a laden RBT would be carried out at every PMI.

Regarding the frustrated maintenance investigation Mr Jaspal Bharji gave evidence that the night before he gave the key to someone in the yard who lost it.

The lack of driver defect reports being sent in was explained by Mr Jaspal Bharji as being because drivers would fix a bulb for example and then complete a nil defect report. He told me that the app they are looking to use takes pictures.

I was given an explanation that last week new tyres were fitted and retorque took place, but it hasn’t yet been recorded as the driver still has the tag in his vehicle.

7. Decision

Based on the evidence summarised above, I make adverse findings under section 26(1)(b), (e), (f). Whilst the finance available was sufficient, I deal with section 26(1)(h) below.

I received, and carefully considered, written representations from those representing the operator.

In closing, Ms Gilder sought to persuade me that Mr Jaspal Bharji has been open and honest, albeit it was accepted that he has failed to answer some of my questions. There is acceptance that there has been a significant failure, and the action has not been prompt, but relying on Arnold Transport I was urged to find that it had not been left to the date of Public Inquiry.

It was submitted to me that there has been no intention to circumvent the legislation, but it is accepted this operator has been remiss in several areas. I was told that Mr Jaspal Bharji would now dedicate his time to the operator licence and that this Public Inquiry has hit hard.

Regarding impact, I was told that about 70-80% of their work is deliveries; whilst some customers collect, they are becoming fewer. I was told that generally there is no charge for delivery unless it’s a smaller load. I was not provided with any evidence of financial documentation to support these submissions. I was told that there would be 6 people facing redundancy but then Mr Jaspal Bharji went on that they wouldn’t close the yard and they would allow customers to collect deliveries, so he then accepted that in fact it wouldn’t be 6 people losing their jobs but would be the 3 drivers. I was told that it would make the business far more difficult if they did not undertake their own haulage.

In respect of curtailment, I was urged to consider the large margin. In respect of suspension, I was told that the vehicles are not used at weekends.

I was offered an undertaking as to a compliance audit. I was told that the operator might use RHA; they have recently joined RHA; the certificate confirms a membership starting on 1st July 2024 (invoice dated 19th June 2024 at page 232 of the bundle). I was also told that Mr Jaspal Bharji has signed up for DVSA updates.

Having weighed the relevant elements, I consider this case to fall within the ‘severe’ to ‘serious’ bracket when considering Annex 4 of Statutory Document No.10.

I find that these wide ranging, numerous and serious failings led to undue risk to road safety over a protracted period. This operator has ineffective management control and insufficient or, in some cases, no systems and procedures in place to prevent operator licence compliance failings. I find that this operator failed to act on the advice of the DVSA.

Balancing these negative features, this operator has not had any prior Public Inquiries.

In respect of fitness, I have proceeded to consider the question posed by the Upper Tribunal in 2009/225 Priority Freight (and approved in 213 Redsky Wholesalers Ltd) namely – how likely that operator will comply in future? I am mindful of the breadth and severity of maintenance failings directly impacting road safety and that those failings were not remedied despite DVSA intervention. Even if this operator could say they were unaware of the concerns before the DVSA investigation (albeit that it was their duty to be so aware), they were certainly aware afterwards yet failed to act on the recommendations, which goes directly to the fitness of the operator. Moreover, compliance did not improve even after an interview under caution. Mr Jaspal Bharji told me in evidence that he was aware of the requirements, if this is right, he deliberately ignored them. If this is not right, he failed to acquaint himself with the requirements, despite numerous interventions.  I determine that the other 3 Directors were absent when it came to operator licence compliance. I did not find Mr Jaspal Bharji to be credible in evidence. I find that this operator is not fit to hold a licence.

Going on to consider whether this operator deserves to be put out of business, I do not take such a decision lightly.  However, I am mindful of the submissions on impact which, when analysed, lead me to conclude that this operator would not be out of business without an operator licence. Their business would be undoubtedly impacted but not lost. I conclude that this operator does not deserve to have the benefit of an operator licence. It is clear to me that operator licence compliance has not been a priority for this operator, with serious consequences for road safety and fair competition. I determine that I cannot trust this operator going forward; actions speak louder than words and this operator’s inactions have led me to this conclusion. Any action has been too little, too late.

I therefore revoke this operator licence with effect from 23:45 hours on 5th August 2024 to allow an orderly wind down of the business.

Having revoked this licence, I must go on to consider whether this operator, and its directors should be disqualified from holding an operator licence in future.  There is no requirement to identify additional features for disqualification, but after hearing the lamentable evidence of Mr Jaspal Bharji and noting the omissions from the other 3 directors, reflected in my conclusions above, I determined that disqualification would be a proportionate response to this catalogue of woeful failings. The conduct was such that a period of disqualification is required to emphasise the seriousness and to act as a sufficient future deterrent. There is no tariff system, but the Senior Traffic Commissioner’s Statutory Directions give starting points: for an operator’s first public inquiry, consideration might be given to a disqualification period of between 1 and 3 years, but more serious conduct may merit disqualification of between 5 to 10 years, severe cases may merit disqualification for an indefinite period. I therefore disqualify this operator and all 4 directors from holding an operator licence for a period of 18 months.

Laura Thomas

Deputy Traffic Commissioner