Decision

Decision for Ibrahim Mahmoud T/A The Lim.o (PF2035902)

Published 22 December 2022

0.1 In the Eastern Traffic Area

1. Written Decision of the Deputy Traffic Commissioner

1.1 IBRAHIM MAHMOUD T/A THE LIM.O (PF2035902)

This decision is made in relation to the Public Inquiry that was listed for hearing on 28 October 2022 at Cambridge. The operator, Mr Ibrahim Mahmoud (dob February 1984) had been called in regarding his PSV restricted licence granted on 3 November 2020 with an authorisation of 1 vehicle and 1 disc issued. The application stated it was planned to use vehicle PF57 EHM, a Ford Expedition 12 passenger seat limousine. The operating centre is at Brackendale, St James Road, Goods Oak, Waltham Cross, EN7 6TR and the maintenance provider is Roy Carter with PMIs on a 10 weekly basis.

Mr Mahmoud had been represented by Mr Brown, AMD Solicitors, since the proposal to revoke letter had been issued on behalf of the Traffic Commissioner on 15 July 2022. Mr Brown had requested this Public Inquiry on behalf of his client in response.

Following on from the calling in letter being issued on 23 September 2022, Mr Mahmoud had emailed to request the case was adjourned because he had half term holiday plans with his children. He also stated the vehicle “has been stationary for a while.” He was asked to provide confirmation of the holiday booking, but did not do so and the hearing remained as originally scheduled.

Subsequently, Mr Brown wrote on 19 October 2022 stating; “The operator accepts that since the restricted PSV operator’s licence was granted, there have been material changes to the licence to the extent that with the advent of Covid 19, the operator was only able to work for a period of up to three months. The operator accepts that he is no longer established for the purposes of holding a PSV operator’s licence, and on that

basis, he understands that the operator’s licence number PF2035902 must be revoked. Accordingly, we have been instructed to inform you that Mr Ibrahim Mahmoud will not attend the public inquiry and to invite the Traffic Commissioner to make a decision in his absence.”

2. BACKGROUND

This licence had been granted with one condition and 6 undertakings.

1. The operator will provide the Traffic Commissioner bank statements covering a three month period and other financial details (such as overdraft facility agreements) in the name of IBRAHIM MAHMOUD that show the licence holder has access to the required level of funding. These details to be provided to the Central Licencing Office in Leeds by 31st May 2021 and cover the whole of the months of February, March and April 2020 (this should have stated 2021).

2. Vehicles with eight passenger seats or less will not be operated under the licence without the prior written agreement of the Traffic Commissioner who may require you to agree to certain undertakings.

3. Only limousines and novelty type vehicles with 9 passenger seats or more and issued with a valid Certificate will be used under the licence.

4. The operator shall, during the life of the restricted licence, keep separate records of all time spent and the gross and net income earned monthly by them from all occupations (with supporting detailed records from which these sums are derived) to enable the main occupation to be determined by the Traffic Commissioner at any time. Records shall be supported by primary evidence such as payslips, P60 documents, booking diaries, invoices and tachograph records. Copies of the records shall be made available to the DVSA or OTC officers on request.

5. Should gross income from, or time spent on, the minibus operation exceed that from all other sources for two consecutive months, the operator will apply for a Standard licence.

6. The operator shall advise the Traffic Commissioner of the type and registration numbers of vehicles used under the licence and shall advise of any changes, in accordance with Section 20 of the Public Passenger Vehicles Act 1981.

7. The operator will ensure that all other work is entered via a manual entry on the tachograph and corresponding evidence such as pay slips are kept and made available to DVSA or OTC on demand.

The operator failed to provide financial evidence by the deadline. Despite a reminder letter sent on 7 December 2021, the operator still failed to comply with the condition.

The Traffic Commissioner had requested a Desk Based Assessment (DBA) to be carried out by DVSA twelve months after the grant to ensure compliance, especially with regard to the final undertaking and main occupation. The DBA was conducted by Traffic Examiner (TE) Hughes with a report dated 8 February 2022 marked as unsatisfactory. The operator’s response did not resolve the issues and the report remained marked as unsatisfactory.

In addition, on 7 December 2021 the operator had been sent a letter requesting 12 months of payslips by 23 December 2021. These were provided a week late and showed 10 months of work with Gist Ltd from December 2020 to September 2021. However, there were also payslips from HGV1 Ltd for October and November 2021 indicating a change of main occupation that had not been notified to the Traffic Commissioner. These various matters resulted in the Traffic Commissioner proposing to revoke the licence.

3. THE PUBLIC INQUIRY

As advised by Mr Brown in advance, Mr Mahmoud did not attend, nor did Mr Brown. I have proceeded to make findings in Mr Mahmoud’s absence and to reach my decision. In doing so, I have taken into account Mr Brown’s brief submissions contained in his letter of 19 October 2022;

“We attach a bank statement on behalf of the operator which indicates that he has maintained the test of financial standing since 27 November 2021. We would, however, ask the Traffic Commissioner to fall short of making a finding against Mr Mahmoud’s good repute, given the difficulties which he experienced during the period following the grant of the licence when the pandemic was at its height. We would also submit that this is not a case in which a disqualification of the operator should be imposed.”

The HSBC bank statement confirmed Mr Mahmoud had held funds in that account for the period from 28 November 2021 to 27 July 2022 to demonstrate financial standing. However, no evidence has been provided to show the current position. In addition, there had been a breach of the financial condition because the operator had failed to provide his bank statements for the 3 month period February, March and April 2021.

The DBA evidence is unchallenged. Five of the compliance categories assessed were marked as unsatisfactory. This included drivers hours and tachograph rules as well as checks of drivers licences. driver CPC monitoring, DBS checks, training records, disciplinary systems, journey planning, agency drivers and a working time system. The operator claimed to be using TachoMaster, but working time records were not supplied.

The TE analysed the raw tachograph data from 19 September 2021 to 31 October 2021. He summarised the issues identified on this licence as follows;

“The operator failed to respond to the shortcomings within the 7 day deadline which was due by 16 February 2022. An unsigned written response was received on 18 February 2022 along with the raw vehicle unit data for PF57 EHM, which had previously not been produced. Subsequent analysis of this data identified over twenty occasions of speeding in excess of 100 km/h often for several minutes at a time, which could indicate the speed limiter is not functioning correctly.

Tachoscan also reported six occasions of driving without a card, and the two occurrences on 19 September 2021 are unclear. Kamel Dhaouadi’s driver card was inserted in slot 2 (on ‘POA’ mode) and driven for 1 hour 7 minutes. The card was withdrawn from slot 2, inserted in slot 1 and driven for a cumulative period of 4 hours 24 minutes before commencing a 25 minute qualifying break. Kamel Dhaouadi’s card was then withdrawn and the vehicle driven without a card for 39 minutes, before Ajefor Miah’s driver card was inserted and a further period of 2 hours 9 minutes driving was carried out.

In respect of the undertaking (other work being entered as a manual entry) on the licence, although the raw data shows the operator and two drivers have used the ‘manual entry’ facility, their records do not appear to be complete. The raw data for the operator and drivers show a significant number of days with no activities recorded which the operator failed to explain.

The Working Time summary contains no records for drivers Kamel Dhaouadi and Ajefor Miah, and the screenshots of Ibrahim Mahmoud’s working time records do not correlate with the raw driver card data. Additionally, periods of absence are not included in the calculations. Apart from 18th and 19 September 2021, it is noted all other driving by Ibrahim Mahmoud during the reporting period was carried out in vehicles specified on licence OF1080020 in the name Greencore Food to Go Ltd.

The operator has failed to adequately address most of the remaining shortcomings and any improvement measures given are superficial and lack detail. DBA outcome remains Unsatisfactory.”

The operator had subsequently claimed in correspondence that many of the systems were in place, but there was no supporting evidence produced to that effect.

4. FINDINGS

Clearly there were serious shortcomings in terms of drivers hours and tachograph compliance that were nothing to do with Covid. Instead, it seems that Mr Mahmoud was most likely an inexperienced operator, poorly educated in terms of compliance whose licence started during Covid. Covid was not an excuse for failing to ensure that he and his drivers fully complied with their obligations, including in relation to working time records. The breaches identified by the TE were a potential risk to road safety.

Regarding the grounds set out in the calling in letter, I make these adverse findings;

a) Pursuant to section 17(3)(aa) breach of undertakings, namely:

• to observe the rules on drivers hours and tachographs and keep proper records
• vehicles would be kept fit and serviceable

b) Pursuant to section 17(3)(b) breach of the conditions on the licence, namely:

• a failure to advise of the change to the main occupation.

(Failure to comply with the finance condition was not included in the grounds, so no formal finding is made in that respect.)

c) Pursuant to section 17(3)(e) since the licence was issued, there has been a material change in any of the circumstances of the licence-holder, that were relevant to the issue or variation of the licence, namely:

• a change in the main occupation of the operator

Section 13(3) relates to whether the operator still meets the requirements to hold a restricted PSV operator’s licence, namely if he operates vehicles of between nine and sixteen passenger seats that it is not the main occupation of the person doing so, or that it is not in the course of a business of carrying passengers. The calling in letter required the operator to provide evidence that he still meets this requirement as he had been operating a vehicle of between nine and sixteen passenger seats. Given that no evidence has been produced, it must follow that I make the adverse finding that main occupation has not been satisfied.

With regard to section 17(3)(d) and section 14ZB(a) good repute, overall, I do accept there were difficulties that Covid and the pandemic brought about for this operator. Clearly, like many others, it had a substantial impact on his earnings, as it has been conceded he did not work for some time.

One of my primary regulatory priorities is road safety. I am concerned at the TE’s findings that are based only upon a snapshot 6 week analysis of the records. The wider picture over an extended period was most likely just as bad. Clearly there were drivers hours and tachograph issues that were simply not acceptable, including incorrect use of driver card and more seriously the failure to use a driver card. The vehicle was also recorded as speeding multiple times, although the TE thought this might have been related to a speed limiter issue. If effective analysis had been undertaken, this issue would have been identified, as indeed would all infringements.

Mr Mahmoud elected not to attend the Public Inquiry. If he had attended, he could have provided some explanation for these shortcomings. However, there is no evidence from him regarding these issues nor any evidence to indicate that his systems were improved following on from the DBA. The TE had noted that the operator’s response in terms of any improvement measures were “superficial and lack detail”. Therefore, overall, I conclude that there have been serious failings in terms of drivers hours and tachograph rules, which are unacceptable.

Throughout the period of the licence, Mr Mahmoud has been under an obligation to notify material change, but he failed to do so in terms of main occupation, just as he failed to comply with the finance condition. Had the true picture been provided by Mr Mahmoud it is likely that the Traffic Commissioner would have proposed to revoke the licence at an even earlier stage.

I have given Mr Mahmoud some credit for accepting that his licence is required to be revoked, although it would have been better if he had attended the Public Inquiry to provide more information regarding the grounds upon which he was called in. It might have been in the light of his explanations that I could have taken a different view of this case. However, because Mr Mahmoud elected not to attend, I can only base my decision on the evidence comprised in the brief.

Mr Brown has submitted that I should stop short of making an adverse finding in relation to Mr Mahmoud’s good repute. However, no detailed reasons have been provided to support that submission. Instead, the only reason put forward was that; “given the difficulties which he experienced during the period following the grant of the licence when the pandemic was at its height.” Notably, this comment does not explain the reasons for the drivers hours and tachograph breaches, or any of the other issues, including the failure to notify the Traffic Commissioner of material change regarding financial standing and main occupation.

The operator licensing system is based upon trust. The Upper Tribunal in T/2012/34 Martin Joseph Formby t/a G & G Transport (paragraph 17) stated; “Traffic Commissioners must be able to trust those to whom they grant operator’s licences to operate in compliance with the regulatory regime. The public and other operators must also be able to trust operators to comply with the regulatory regime”.

Since Mr Mahmoud did not attend the Public Inquiry that he had requested, I have been unable to establish the reasons for his failures and also whether he could be trusted with another licence, should he apply again in the future.

In response to the Bryan Haulage (No 2) 217/2002 question; “is the conduct such that the operator ought to be put out of business?”, I am required to look at not only the details of the case, but also the overall result.

Overall, in terms of the balancing act that I am required to undertake, I conclude that there are far more negatives than positives in terms of consideration of Mr Mahmoud’s good repute. Given the adverse findings, including the range and extent of drivers hours and tachograph breaches, I consider in all the circumstances that it is proportionate to find that Mr Mahmoud’s good repute is lost.

In relation to section 17(3)(d) and section 14ZB(b) financial standing, there was no evidence produced by the deadline of 31 May 2021 in response to the finance condition. Consequently, at that stage I find that financial standing was not met.

I accept from the latest evidence of the HSBC bank statement that financial standing has been demonstrated from 27 November 2021 to 27 July 2022. However, there is no evidence in relation to the last 3 months as was required to be produced for the Public Inquiry. Therefore, it must follow that financial standing has not been proved, so I do make an adverse finding on this ground.

5. DECISION

It has been volunteered by Mr Brown on behalf of Mr Mahmoud that this licence will be revoked. I have accepted that there are some issues that have been brought about the difficult situation created by Covid, but these cannot excuse the fundamental breaches of these two mandatory grounds.

Mandatory revocation must follow on from the adverse findings relating to loss of good repute pursuant to sections 17(3)(d) and 14ZB(a) and to financial standing pursuant to sections 17(3)(d) and 14ZB(b).

There are also additional grounds upon which it is proportionate to revoke, namely material change pursuant to section 17(3)(e) and no longer having a qualifying “main occupation” pursuant to the requirement under section 13(3)(b), as well as the other adverse findings pursuant to sections 17(3)(aa) breach of undertakings and 17(3)(b) breach of conditions.

Although I have made an adverse finding of loss of good repute, overall, this is not a case where it is proportionate to consider disqualification.

Should Mr Mahmoud wish to re-enter the industry at a later date, he will need to demonstrate that his good repute can be restored. This will especially involve him establishing that he is much better educated in terms of operator compliance, in particular in relation to drivers hours and tachograph rules, before any application can be given serious consideration.

In conclusion, pursuant to section 17(2)(a), I revoke this restricted PSV operator licence with effect from 23.59 on 16 November 2022. This will allow time for Mr Mahmoud to be notified of my decision and ensure that the vehicle is no longer operated from the revocation date.

Gillian Ekins

Deputy Traffic Commissioner

Eastern Traffic Area

8 November 2022