Decision

Decision for K S Transporters (UK) Ltd

Published 21 July 2021

0.1 IN THE EASTERN TRAFFIC AREA

1. K S TRANSPORTERS (UK) LTD – OF2013857

2. CONFIRMATION OF THE TRAFFIC COMMISSIONER’S DECISION

3. Background

K S Transporters (UK) Ltd holds a Standard National Goods Vehicle operator’s licence, authorising 8 vehicles and 8 trailers. The Director is Rajeev Ramasamy, having been appointed on 10 June 2019. There is currently no Transport Manager attached to this licence.

There is one Operating Centre at Gate 3, Stanford-Le-Hope, Essex SS17 9PD. There are three declared contractors showing on the licensing record: DBS Commercials, Gill 365 Commercials Ltd, AL Engineering & Sons, undertaking Preventative Maintenance Inspections of vehicles and trailers at 8-weekly intervals.

The Director, Mr Ramasamy, was previously connected to RDVS Limited (OF1149009), which held a licence from 8 December 2016 until it was revoked on 14 December 2020. He had resigned as a Director on 1 April 2020 but then made an application dated 1 October 2020 to surrender the licence. The change was not notified. It was then found that the company had entered liquidation on 20 August 2020.

This operator received prohibitions for an inoperative indicator and a fixed penalty for no evidence of training or exemption, on 18 June 2019.

4. Hearing

The Public Inquiry was originally listed for 8 July 2021 in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was not present.

5. Issues

The public inquiry was called for me to consider whether there were 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:

• Section 26(1)(b) – contravention of a licence condition.

• Section 26(1)(e) – failing to fulfil a statement of expectation / false statement.

• Section 26(1)(h) – material change.

• Section 27(1)(a) – to consider whether the operator is still of good repute and is professionally competent.

• Section 28 – disqualification

The operator was directed to provide evidence in support, including the following, by 21 June 2021:

• Financial evidence to demonstrate the availability of the prescribed sum by way of 3-month average.

• Original maintenance records for vehicles GJ13 KHX, DK11 ULP, PO64 UYB, OU65 RXR and 6 trailers for the last 12 months.

• Original maintenance contract(s).

• Evidence of forward planning.

• Evidence of the systems for managing drivers for the last 12 months.

6. Determination

Following the departure of the previous Transport Manager, Mr Minai, on 1 February 2021, Mr Ramasamy sought to nominated himself, in an application lodged on 9 February 2021, relying on his Certificate of Professional Competence obtained in 2015. He offered to undertake Transport Manager refresher training.

However, shortly afterwards, information was received that the operator may no longer be parking at the authorised Operating Centre. The allegations were put to Mr Ramasamy to allow him opportunity to make representations. He was also asked to explain the circumstances surrounding the attempt to surrender OF1149009. In response, Mr Ramasamy requested a Period of Grace for the current licence and provided evidence to demonstrate attendance at a 2-day transport manager refresher course on 16 and 17 March 2021.

In respect of RDVS Limited, Mr Ramaswamy suggested he continued to act as Transport Manager, ‘helping their operations’ when it was taken over, on 1 April 2020. In further correspondence he stated the belief that updates of Companies House records would automatically update the operator’s licence. He learned that the new Director was not operating and asked for his name to be removed as Transport Manager, suggesting an absence of genuine link. When he notified the office, he was informed that he was still listed as the director on the licence. This prompted him to attempt to surrender the licence.

I was not satisfied by the nomination of Mr Ramaswamy and his ability to exercise effective and continuous management. An application was then lodged for an operator licence in a different traffic area on 5 March 2021, with a reference licence number: OK2042717.

A proposal to revoke the existing licence was sent on 19 April 2021, referring to the absence of professional competence. A response was received on 9 May 2021 requesting a Public Inquiry. No Period of Grace was granted but the operator resisted the suggestion that operations should be suspended. The response dated 21 May 2021 admitted that: “RDVS Ltd held a sublet with a third party, to park vehicles at DP World. When Mr Ramasamy began operating as KS Transporters (UK) Limited, he used the spaces previously utilised by RDVS, but did not regularise this with DP World. DP World then asked the company to leave the operating centre with immediate effect and so Mr Ramasamy moved the lorries to the Ground Works in Manor Way, Swanscombe DA10 0LL”. It admitted that the operator’s vehicles were no longer normally kept at an authorised operating centre.

On 1 June 2021, the operator lodged an application nominating a Clive Smith to act as Transport Manager. That application has not been pursued. I am in no position to make a determination in respect of that application and Mr Smith is not present at the Public Inquiry. It remains the case that there is no Period of Grace.

To the operator’s credit, his representative, Carolyn Evans of CE Transport Law, emailed my office on 22 June 2021 to indicate that the operator would not be attending the Public Inquiry and that no further documentation would be forthcoming. The email suggests that Mr Ramasamy had been reviewing the viability of the business since the letter from my office dated 21 May 2021. He then decided that the business was no longer viable, and he is seeking advice on how to wind it up. The correspondence accepts that the licence must be revoked but asks for an additional period to wind the business down in an orderly manner.

In the circumstances it is inevitable that I will make the following adverse findings: section 26(1)(b) – contravention of the condition to notify me of matters relating to the authorised operating centre, 26(1)(e) – failing to fulfil the statement as to where vehicles will normally be kept and to comply with that condition, 26(1)(h) – material change in the lack of operating centre, transport manager and, due to the failure to produce evidence, financial standing. The absence of a transport manager and financial standing requires revocation under section 27(1)(a).

This operator has been without professional competence since 1 February 2021. It has failed to obtain a Period of Grace or to surrender its licence in the intervening period. The Upper Tribunal explained the mechanism in appeal 2014/008 Duncan McKee & Mary McKee: In our view, when considering whether or not to grant a period of grace, Traffic Commissioners will need some tangible evidence, beyond mere hope and aspiration, that granting a period of grace will be worthwhile, and that there are reasonable prospects for a good outcome. Some sort of analysis along these lines will be necessary because, amongst other reasons, Traffic Commissioners have to decide how long to grant. Moreover, as with a stay, there is no point in granting a period of grace if the likely effect is just to put off the evil day when regulatory action will have to be taken. The operator denied me that analysis and in these circumstances its request for a Public Inquiry resembles a device to delay intervention and gain a potential commercial advantage. That conduct is inconsistent with future compliance (reference 2009/225 Priority Freight) and would necessitate its removal from the industry (as per 2002/217 Bryan Haulage), in any event. I make that adverse finding against the operator’s repute under section 27(1)(a).

The operator’s licence will be revoked from 23:345 on 14 July 2021.

To quote the Upper Tribunal in 2013/082 Arnold Transport Ltd: The Tribunal has stated on many occasions that operator’s licensing is based on trust. Since it is impossible to police every operator and every vehicle at all times the Department in Northern Ireland, (and Traffic Commissioners in GB), must feel able to trust operators to comply with all relevant parts of the operator’s licensing regime. In addition other operators must be able to trust their competitors to comply, otherwise they will no longer compete on a level playing field. In our view this reflects the general public interest in ensuring that Heavy Goods Vehicles are properly maintained and safely driven. Unfair competition is against the public interest because it encourages operators to cut corners in order to remain in business. Cutting corners all too easily leads to compromising safe operation. Use of the operator licence system in this way, is to be disparaged. This operator has only narrowly avoided disqualification, by its advance notification, but other operators who might be tempted to try and delay intervention, should take note.

Richard Turfitt

Traffic Commissioner

8 July 2021