Decision

Decision for Leafy Designs Ltd (OF1089625) & Dharminder Singh, Transport Manager & Drivers: Mustak Ahmed Umarji & Harunbhai Daubhai Valibhai Patel

Updated 29 April 2024

1. Background

Leafy Designs Ltd holds a Standard International Goods Vehicle Operator’s Licence authorising 12 vehicles and 8 trailers. The Directors are Harun (Harunbhai Daudbhai Valibhai) Patel and Mustak Ahmed Umarji. The Transport Manager was Dharminder Singh, who was appointed from 28 May 2019. Representations received on 2 March 2022 suggested that he had resigned, leaving the operator without professional competence. Amanpreet Kaur has since been appointed, from 31 March 2022.

There is one Operating Centre at 97 Barkby Road, Leicester LE4 9LG. There was one declared contractor showing on the licensing record: R H Commercial Vehicles, undertaking Preventative Maintenance Inspection of vehicles and trailers at 12-weekly intervals. This was subsequently changed to 8 weeks and M N Commercials added (see below).

Whilst the operator was incorporated on 1 September 2006, it did not lodge an application for a standard national operator’s licence until June 2009. The application was considered at a Public Inquiry on 24 August 2010 due to a proposed operating centre appearing to be in a residential area. The licence was granted with two conditions and one undertaking.

The operator lodged a variation application on 24 August 2021 seeking to increase authority to 19 vehicles and 8 trailers at the existing operating centre. That variation application was subsequently withdrawn by letter received on 25 January 2022.

Written representations referred to Mr Umarji’s background in retail. His shops closed in 2011. His cousin, Mr Patel, came to the United Kingdom in 1997. He established a factory which he ran for three years from 2001. He worked for another company before setting up Leafy Designs, which was incorporated on 1 September 2006, with the intention of establishing a fourth factory. The initial application referred to an operating centre at 24 Evington Lane, Leicester (Mr Umarji’s home address), with a second at 32-34 Siston Street, East Leicester. The Transport Manager at that time was Michael Lynch. The operator moved operating centres on several occasions until moving to 97 Barkby Road, Leicester in October 2019. It consists of a 20,000 square foot compound, with portacabin offices, toilet facilities and parking for 20 vehicles. There are no maintenance facilities at the premises. The application to upgrade to a standard international licence required a new Transport Manager and Dharminder Singh was appointed in May 2019. The main customers are Store Groups e.g., Quiz Retail, Boohoo, Matalan, River Island. One of the largest customers is ‘Quiz’ which involves collections from London, Manchester and Birmingham and deliveries to two distribution centres in Scotland. I am told that Vibe Trends Limited, did not trade until 2019, it is the vehicle used to manage the joint property and to pay dividends.

2. Hearing

The Public Inquiry originally commenced on, 16 March 2022, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was present in the form of Harun Patel and Mustak Umarji, Directors, accompanied Michael Lynch, “transport assistant”, represented by Carolyn Evans of CE Transport Law. It proved necessary to adjourn that hearing, for the reasons touched on below. It reconvened finally on 5 January 2023, in the same location. On that occasion Mr Lynch was not present, but all other parties were, together with Ms Kaur.

I reserved my decision to allow me time to consider the appropriate course and 7 days for Ms Evans to supply additional information relating to current contractual obligations further to the Upper Tribunal decision in 2013/047 Dundee Plant Hire Ltd.

3. Issues

The public inquiry was originally called at the request of the operator and for me to consider whether there were grounds for to intervene in respect of this licence and specifically by reference to the following sections of the Goods Vehicle (Licensing of Operators) Act 1995:

• 26(1)(b) – Condition to notify relevant changes including professional competence

• 26(1)(ca) – Fixed Penalty Notices (page 86)

• 26(1)(e) – statements that the vehicle would be inspected at the declared intervals of 12 weeks and to abide by the licence conditions

• 26(1)(f) – undertakings (vehicles and trailers to be kept fit and serviceable, not overloaded, driver defect reporting, complete maintenance records, drivers’ hours and tachographs,)

• 26(1)(h) – material change:

• 27(1)(a) – good repute, financial standing, professional competence

• 28 – disqualification of directors and operator to be considered

Dharminder Singh was called separately to consider his repute as Transport Manager and by reference to the statutory duty to exercise effective and continuous management – section 27(1)(b), Schedule and section 58. Mr Lynch might think himself lucky not to have been called under the same legislation.

The operator was directed to lodge evidence in support by 2 March 2022, including financial, maintenance and other compliance documentation. Following the initial hearing the operator and parties had opportunity to lodge further documentation, to which I refer below, and no later than 22 December 2022. At the second hearing it was conceded that the operator was unable to supply evidence which would show sufficient financial standing to support the current authority.

4. Summary of Evidence

Following the application, DVSA conducted a Desk Based Assessment, which was completed by 27 October 2021. The Examiners initially engaged with Dharminder Singh, who signed and dated the questionnaire on 24 September 2021. That highlighted the following concerns:

• 12 vehicles in operation but only 9 vehicles specified on the licence.

• Braking performance is not assessed at every inspection. The Operator indicated that ‘This is the responsibility of RH Commercial Vehicle Ltd and Mertrux Ltd’.

• There is no specific inspection interval declared on the licence for trailers, so the specified 12 weekly intervals for vehicles was applied.

• Vehicles/trailers were found to have exceeded the specified inspection intervals on 6 occasions, some by a significant amount of time with no VOR recorded: FJ64KCG exceeded the inspection interval by 30+ weeks. FN63YZP (and trailer C293340) exceeded the inspection interval by 2 weeks, and again by 1 week. A second trailer exceeded by one week and trailer C136342 exceeded by 4 weeks. Those were usually due at annual test shortly afterwards.

• Insufficient VOR system and limited safety defect and recall systems in place

• Driver reportable defects have been left to Preventative Maintenance Inspections with no corresponding driver defect record.

• Driver Defect Records are not adequately completed, and it is not evident reported defects are assessed or rectified.

• The Operator referred to maintenance agreements with RH Commercial Vehicle Ltd and Mertrux Ltd. Mertrux Ltd was not specified on the licence. No evidence of investigation after annual test failures. The operator views the facilities and competency as the responsibility of the maintenance providers.

• Many of the responses indicate: “This is the responsibility of RH Commercial Vehicle Ltd and Mertrux Ltd” and “This is the responsibility of Transport Manager and/or the Administrator who has a National CPC”.

• Limited/no explanation or evidence was produced for systems relating to emissions, wheel and tyre management, load security, security requirements, driver documents, training records and Working Time Directive.

• The operator indicated that tachographs are ‘read’ every 28 days by the Transport Manager or administrator, but the download date for vehicle YN64WRD has been missed by 882 days, and vehicle FN63YZP had been missed by 301 days. The mandatory driver down-load period of 28 days had also been missed. Those vehicles were specified on the licence in May 2018 and March 2019, but not locked into the Company card until after September 2021.

• There was no evidence of a disciplinary system in place.

• It was claimed that Working Time Directive records are printed and kept for 15 months, but no evidence was provided (retention should be 2 years).

• Missing documents included evidence of driving licence and driver CPC checks for 6 of the 9 drivers: tachograph data for FJ64KCG and Drivers Sukhwinder Singh and Ahmed Raja Waqar.

• Identified infringements: 18 June 2021 – Driver Satnam Singh took an insufficient daily rest time of only 9 hours 2 minutes (11 hours required); 8 July 2021 - Driver Satnam Singh took an insufficient daily rest time of only 9 hours 11 minutes (11 hours required); 27 July 2021 – Driver Shiraz Lalan exceeded 4.5 hours driving by 41 minutes with no recorded break; Drivers Haunbhai Daudbhai Patel, Adam Ismail Tutla and Mustak Ahmed Umarji not recording their full duty periods on driver cards.

• Driver walk round checks were found to be recorded for under 10 minutes.

Mr Singh apparently advised that the company has recently installed RHA digivu+ which would make checking more manageable. A subsequent response was received from the Directors. Subsequent representations indicate that it had only recently been installed and the Directors were not aware that it was incomplete. The operator referred to correspondence with RH Commercial Ltd and Mertrux Ltd, and an agreement regarding trailer inspection intervals. The correspondence can be summarised as follows:

• Lack of oversight led to the production of only two Preventative Maintenance Inspection records.

• Delays in trailer inspections resulted from their operation between the UK and Morocco.

• A copy of the service contract schedule with Mertrux Ltd was said to have been sent to the Office of the Traffic Commissioner.

• Invoices were provided regarding wheel and tyre management.

• Recalls are checked at inspections.

• Drivers have been issued with a letter reminding them of their driver defect reporting responsibilities. Group training updates are held with all staff every 3 months.

• A policy is in place for load security.

• A Transport Managers Inspection Record was attached which showed tachographs and vehicle inspections every 28 days. It refers to Michael Lynch, who was removed from the licence in 2019.

• It was stated the Transport Manager/Administrator check the vehicles weekly. Raw data was evidenced along with route planning sheets.

• It was confirmed Working Time Directive records are retained for over 2 years. Employment and Disciplinary policies were attached.

• An invoice for a refresher course was attached along with a certificate. The Transport Manager and Administrator were confirmed to each work up to 20 hours a week.

• The missing raw data for the 3 drivers was attached, though Driver Davinderjit no longer works with the operator.

The DVSA report records a lack of detailed explanations for the shortcomings identified. The letter to the maintenance contractors was not thought to address maintenance standards going forward. There was no evidence of follow up on the driver defect reporting system, with no evidence of additional copies of driving licences or CPC provided. No explanation was offered for the driver infringements, and further breaches were identified from the additional data provided. No Working Time records were produced. Following receipt of representations, which I summarise below and in the course of the first hearing, Dharminder Singh indicated that he had no involvement in the response to DVSA and that he was unaware of the details of that investigation. When I put to him the response signed on behalf of the operator (page 83) he denied that this was his signature. To my untrained eye the signature appeared to be different to that contained in the TM1 form at page 43. It was that reason and given the then hour, that the matter had to be adjourned to a second date, in the interests of justice. I gave instructions for the OTC to seek further details from DVSA on receipt of the correspondence and to allow all parties to consider their positions.

I had previously noted an unenviable compliance standard with a drivers’ hours prohibition rate of 8.33%, overloading rate of 20% and annual test failure rates of 37.21% and 16.28%. It was unclear on what basis it had sought to increase authority to 19 vehicles.

Written representations, signed by the two Directors, were lodged in advance of the first hearing. As indicated above, those referred to the resignation of Dharminder Singh and the proposal to nominate Amanpreet Kaur. I then saw a TM1 application form, a copy of the Certificate of Professional Competence dated 23 January 2019 and an incomplete contract, which failed to provide the fee for the services to be provided, but that was subsequently addressed.

I was told that, to meet the challenges presented during the pandemic, the operator attempted to secure work with Amazon for three vehicles. The operator described a lengthy application process and was eventually told by Amazon that it would not be appointed as a transport provider, unless the operator had at least ten spare vehicles. This is not the first time that this tribunal has been made aware of the demands of that particular supplier, apparently made without reference to the ability of the operator to comply with the licence and safety requirements Amazon’s demands triggered the application, to which I have referred, seeking an increase to a total authority of 19 vehicles. In the event only insignificant amounts of work were conducted and using rigid vehicles only.

The representations acknowledged that the resulting desk-based assessment identified 11 out of the 16 elements assessed as unsatisfactory. Prior to the desk-based assessment, the vehicles were only the subject of a roller brake test at annual test (with the exception of YN64 WRD which had a RBT at every interval as it was subject to a contract with Mercedes). The previous response suggested that emissions were ‘the responsibility of the maintenance providers’. I was told that the Directors understand this error. The vehicles are topped up with AdBlue every Saturday and have asked Invergold to devise a system for monitoring. After the desk-based assessment, the Directors and Mr Lynch (not the Transport Manager) visited the maintenance provider and asked them to conduct a roller brake test at every interval. Mertrux Limited was not specified on the licence. All future maintenance will be undertaken by RH Commercial Vehicles Ltd.

It was acknowledged that the operator did not keep to the 12-weekly inspection intervals and that trailers were maintained in the same way. PE62 POV was involved in an accident and taken off the road in August 2021 to be replaced with FJ64 KCG.

Apparently a number of vehicles and trailers were off the road in 2021, but there was no VOR procedure in place. For some reason it was left to RH Commercial Vehicles Limited to add FJ64 KCG to the fleet planner. It was overlooked and resulted in 43 weeks between inspections until the annual test was due in July 2021. It refers to occasions when it was shortened due to international work. The intervals have now been reduced to eight weeks with a roller brake test at every inspection. This follows the attendance of Invergold Associates to audit the systems. That advised the operator to adopt an in-depth forward planner.

The original representations also referred to the brake system related failures, including the trailer parking brake, with no evidence of an inspection immediately prior to test. WX56 AED failed at annual test on 21 September 2021. I was told that it was the subject of a pre-test inspection, and the operator was invoiced for £1,600 for works, but still failed. I was asked to take account of the two-year history up to that point. I was unclear what the Transport Manager had done to investigate. I make a similar comment in respect of the Prohibitions. The representations refer to an absence of maintenance issues, but that does not illustrate effective management. As DVSA noted, there was no evidence of any auditing and when asked how many hours are committed to the Transport Manager duties, the company indicated N/A. The operator now admits that Mr Singh attended infrequently and fulfilled a supervisory role. Mr Lynch has been carrying out the day-to-day management of the vehicles and drivers. In doing so he has placed his own CPC at risk. He must have known that this was misleading. I was assured that the operator now understands that it is the Directors’ responsibility to oversee compliance. That was before I uncovered the attempt to mislead DVSA, which only emerged at the first hearing.

It was accepted that the Nil driver daily defect reporting system was not being managed as most defects were reported verbally. I was told that Mr Umarji now understands the process and is ensuring that drivers complete the driver defect reports adequately. A toolbox talk was arranged for the Saturday before the hearing, although I noted the absence of any Transport Manager. The operator failed to provide sufficient information on wheel and tyre management or load security. I was told that there is a contract with Tructyre. That contractor leaves torque tags on the vehicle for action and recording. Drivers had been trained on load security, but this was not documented. The representations acknowledged the incidents in September 2020, which prompted training including the yard staff. Mr Umarji normally supervises the loading.

The original representations suggested that the approach has been “completely transformed”, with the purchase of software and the monthly RHA infringement reporting. Drivers had consented to opt out of the Working Time Directive. The records produced included records of 5 review meetings with drivers Minhas Surinder Singh, Shiraz Lalan, Hossain Belayet, Satnam Singh, Adam Ismail Tutla, all counter signed by Dharminder Singh and dated 5 February 2022, but all resulting in no further action.

However, as the updated Case Summary refers, during the course of the first hearing, Dharminder Singh disputed that he had seen or signed any of the documentation lodged with DVSA as part of its desk-based assessment. As a result, and in order to ensure the fairness of proceedings, I adjourned the hearing in order to reserve that material. The Office of the Traffic Commissioner carried out those instructions on 18 July 2022, with an invitation to Dharminder Singh and Ms Evans to make additional representations. Mr Singh eventually allowed his written representations to be disclosed the operator so that I might take them into account (see below).

A response was received from Ms Evans, on behalf of the operator, dated 15 August 2022. That included the statement from Mr Umarji. Admissions were made confirming that Dharminder Singh was retained by the operator in order to upgrade to an international licence, but with Mr Lynch to remain using his National Certificate of Professional Competence. It was apparently agreed that that Mr Lynch would perform most of the Transport Manager duties and ensure that the paperwork was in order.

In addition, Mr Umarji confirmed that the when the DVSA request was received, he passed it to Mr Lynch to start collecting the paperwork required. They apparently tried to contact Mr Singh but were unable to speak with him. As the paperwork had to be returned by 27 September 2021, one of the staff signed on Mr Singh’s behalf. They apparently did not think there was anything wrong with this. It was suggested that Mr Singh had previously authorised someone to do so when, he was unable to attend the office. The documents were only ever collated by Mr Umarji and Mr Lynch. Mr Umarji admitted that he should not have allowed this to occur.

A letter was sent to the operator’s representative on 30 August 2022, requesting comments from the person(s) who signed the aforementioned documents on behalf of Dharminder Singh. Ms Evans responded on 13 September 2022 suggesting that Mr Umarji had spoken to the unnamed member of staff (who responded on two occasions to the request for a signature on behalf of Mr Singh), but he is unwilling to provide a formal statement. The person is apparently concerned that providing a statement might have repercussions and he wished to take independent legal advice. Mr Umarji indicated that the response was signed on behalf of Dharminder Singh by a member of staff and at the request of Mr Lynch’s, but in Mr Umarji’s presence. It was believed that Mr Singh would approve of this course.

Mr Umarji communicated his disappointment in response to evidence taken at the first hearing. He acknowledged that he should have checked that Mr Lynch was doing the job properly. He further acknowledged that Mr Singh did not contribute to the production of the response to DVSA but claims that he was aware of the DVSA interest.

Reference was made to the impact of the new Transport Manager, Ms Kaur. The operator provided an audit report prepared by Invergold Associates Ltd on 20 January 2022. The DBA was carried out in September 2021 and the audit completed in January 2022, at which point the author, Martin Parrack, only made 7 recommendations:

• Adblue - the odometer reading needs to be noted to compare the usage.

• After a tyre change there was no re-torque recorded.

• Records of infringements supplied, printed copies made and drivers debriefed.

• Very minor missing mileage - recommended that the reports are reset to 4km.

• Gatechecks should be recorded and signed.

• Driver health checks and health and safety policies are in place but need to be completed.

• Roller brake testing - recommend laden up to 70% of payload as some still show insufficient load.

On the morning of the reconvened hearing I was provided with 127 pages of updated “Customer Visit Report” by the same consultancy. That visit was apparently completed on 12 December 2022. It refers to Ms Kaur’s engagement for 25 hours per week. It contained 14 photographs as illustration of the way in which drivers’ hours infringements are managed. This includes an infringement report (photograph 17) showing driver’s hours and working time infringements committed by Mr Umarji whilst driving in March and May 2022. 7 blurred photographs were produced to demonstrate the management of missing mileage, but there was only one annotation (a figure had been circled). I saw a note suggesting that “FJ64 was booked for MoT and was with RH Commercial on 12.07.2022”. I saw the printouts but there appeared to be no evidence of the infringements being out to the drivers beyond a single letter (photograph 26) from “Trix Logistics” (the operator’s trading name) to Driver Santran dated 25 September 2022. The photograph does not show who wrote the letter and there is no evident acknowledgement from the driver. In contrast the instruction to drivers dated 2 December 2022 relating to overloading was signed by Ms Kaur. I was referred to one photograph of a schedule suggesting quarterly driver licence and DCPC checks. I also saw photographs of yellow wheel-off tags to show how the wheel security and retorque procedures are now managed. In addition, I was invited to consider:

• 9 x yellow folders with MOT, PMIs, Repairs, Invoices and Tyre Repairs for the following YC60GKX, YN64WRD, FJ64KCG, YT11WSF, MH04GSV, WX56AED, C13642, C136320, C293339.

• Green folder of maintenance agreements, list of vehicles and trailers, Monitoring process of Adblue, Driver handbook, Employment Health Declaration (annual/6 monthly), Driver Health and Eyesight policy

• Green folder of Driver Licence checks

• Blue folder of TM information

• Blue folder of missing mileage, disciplinary action with relevant infringement reports, driver download reports.

• Forward planner.

The “Customer Visit Report” recorded that metred brake tests were conducted on vehicles and trailers apparently at 8 weekly intervals. It refers to CMR producing documentation and invoices to show that they are presented in a laden condition, but that “excessive” weight had been applied in the past. I was able to view the most up to date inspection records produced: KU62 MZD –

• 26 October 2022 – inspection (10+ weeks prior to the hearing) with roller brake test: 35%, 26%, 11% but passed by the inspector. It also refers to defective brake and fog lights, chipped windscreen (again) and oil accumulation (again) around the sump with a Nil driver defect report for the same date.

• 24 August 2022 – inspection with no roller brake test as the “pit was full”. It also records a chipped windscreen (again) and oil accumulation (again) around the sump and gear box but Nil driver defect report.

• 28 June 2022 – inspection with roller brake test: 73%, 66%, 24%. It also records a chipped windscreen (again) and oil accumulation (again) but Nil driver defect report.

• 3 May 2022 – inspection with roller brake test: 35%, 28%, 11% but passed by the inspector. It also records a chipped windscreen (again) and oil accumulation (again) but Nil driver defect report.

• 8 March 2022 – inspection with roller brake test: 58%, 49%, 21%. It also records a chipped windscreen (again) and oil accumulation (again) with defects reported on 7 March 2022.

• 6 January 2022 – inspection with no brake test. It also records cab tilt warning on the dash, main mirror insecure, wing top straps missing and a chipped windscreen and oil accumulation with Nil driver defect report.

4.1 FJ64 KCG

• 12 December 2022 – inspection with roller brake test: 50%, 25%, 15%. It also records chassis defects as serviceable and oil accumulation around the rear of the engine (again) but Nil driver defect report.

• 18 October 2022 – inspection with roller brake test: 48%, 22%, 15% but passed by the inspector. It also records outer tyre side wall perished (again) and oil accumulation around the rear of the engine (again) but Nil driver defect report.

• 25 August 2022 – inspection with roller brake test: 58%, 28%, 17%. It also records outer tyre side wall perished (again) and oil accumulation around the rear of the engine (again) but Nil driver defect report.

• 11 July 2022 – inspection with roller brake test: 73%, 27%, 25%. It also records cab door damage (again), outer tyre side wall perished (again) and oil accumulation around the rear of the engine but Nil driver defect report.

• 29 June 2022 – inspection with roller brake test: 53%, 24%, 15%. It also records chipped head lamp (again), cab door damage (again), outer tyre side wall (again) and oil accumulation (again) but Nil driver defect report. Defects were reported on 2 June 2022.

• 4 May 2022 – inspection with roller brake test: 54%, 23%, 16%. It also records outer tyre side wall, cab door damage, mirror hinge (ordered), oil leak, head lamp but Nil driver defect report.

This broadly accords with the assessment of photographs 85 to 96 produced on the day of the second hearing. That “Customer Visit Report” confirms that driver detectable defects are recorded at Preventative Maintenance Inspections. Cuts to tyres appear to be glued rather than the tyre being replaced. The author, Mr Leon, was slightly more positive in respect of the trailers, but driver detectable defects are still recorded. Mr Leon identified instances where insufficient loads were being applied to trailers when presented for brake testing: C199497 and C136320.

I compared that with my initial dip sampling of the maintenance records resulted in the following observations: electronic records with few brake printouts attached. Most appeared with the initials of Mr Lynch:

4.2 YT11 WSF

• 9 February 2022 – inspection with roller brake test: 59%, 54%, 20%. It also records offside top marker inoperative and offside fog light inoperative with no driver report detected.

• 16 November 2021 – inspection (9 weeks from previous) with roller brake test: 43%, 14%, 6%, unladen and no print-out. Driver defect report for 15 November 2021 records light fault but not offside mirror loose.

• 17 August 2021 – inspection with roller brake test: 60%, 47%, 21%, laden but no print-out. It also records a trailer lighting socket as damaged, no discernible driver report.

• 15 June 2021 – inspection (11+ weeks from previous) with road test of brakes and tachograph out of date.
• 23 March 2021 – inspection with no brake test and records nearside rear tyre tread low and indicator stalk faulty, no discernible report.

4.3 Trailer C136320

• 8 February 2022 – inspection with roller brake test: 19%, 12%, unladen with no print-out, also records lamp inoperative (again) and no discernible driver report.

• 16 November – inspection with roller brake test: 42%, 12%, unladen and no print-out.

• 20 August 2021 – inspection with roller brake test: 21%, 12%, unladen and no print-out.

• 2 June 2021 – inspection (13+ weeks since previous) with unladen road test.

• 25 February 2021 – inspection with no brake test and records a light fault.

It was also accepted at the previous hearing that there was no evidence of the quarterly driving licence checks. DVSA reported that either a driving licence or CPC was missing for six out of the nine drivers whose records were produced. The operator has now put together a file to assist in forward planning. All drivers are employed. On driver training, the operator relies on its RHA membership, and I was referred to the training which took place on the preceding Saturday.

The evidence confirmed during the first hearing, that the operator had three analogue vehicles. For the remaining digital vehicle, the drivers produce a printout of their daily driving. Mr Lynch would conduct a manual analysis. Mr Lynch would then report any shortcomings to Mr Umarji, which would be verbally reported to drivers. On my dip sampling of the analogue records, I have concerns as to the limited amount of time recorded, presumably for the driver walk round. There was no software in place until September 2021. RHA analysis systems are used to produce monthly infringement reports for the drivers and identify missing mileage. The infringements by Satnam Singh were committed when undertaking work from Glasgow to Leicester. Satnam Singh understood that he could reduce the daily rest to nine hours but has exceeded this on two occasions. Adam Tutler (Tutla) does not work consistent hours and is not performing any other work. TachoScan disclosed several instances where both directors and Adam Tutla were not recording their full duty periods on the driver cards. The Transport Manager and Mr Lynch failed to identify this. The directors accept that they have not always included all relevant duties. They now understand that they must make a manual entry to include all their duties.

During the first hearing I was referred to the appointment of Amanpreet Kaur. It was initially proposed that she attend for 2 days per week “until the compliance measures outstanding have been implemented in relation to systems”. There was a firmer commitment to Ms Kaur by the date of the second hearing. There were to be monthly and weekly meetings, so that any issues are reported to the directors in writing. I was not shown any examples but assured that briefings are taking place.

Mr Dharmindher Singh told me that he had known both Directors for some time. They attended his home in April 2019 asking for his help in starting this operation to Europe because they needed an International CPC holder. It was suggested that this was for one trip to Romania. He was apparently paid £50 per week for more than a year after which they started paying him £100 per week. He stated in evidence that this was usually transferred into his bank account. Mr Singh suggested that he was unaware that the operator had increased its fleet from six vehicles. He indicated that the new vehicle was not on the inspection schedule for over a year. In evidence he indicated that he had seen the wall planner but that he was not informed when the fleet size increased. He questioned how Mr Lynch had missed this, and on that basis suggested that the business was running without a Transport Manager. The irony of that statement apparently escaped Mr Singh.

They apparently referred to an in-house transport manager, Michael Lynch, who was already looking after the operation. They suggested to Mr Singh that if he came on board as Transport Manager then Mr Lynch would look after the operation. They indicated that they would replace Mr Singh as soon as they found another manager but they agreed with him that he would oversee the operation and all the documents. However when he attended he was not shown anything at all, but they kept reassuring him that everything was satisfactory up to the point when they were called to Public Inquiry. They had assured him that all the drivers records and vehicle records were satisfactory and kept on a personal computer, which he was never given access to even though he asked on a number of occasions, although he referred to the Preventative Maintenance Inspection himself.

Mr Singh was challenged under cross-examination. He confirmed that he initially attended the Operating Centre monthly, usually on a Saturday. As the pandemic developed this increased to every 6 or 8 weeks. I contrast this with the signed commitment to 6 hours on a Monday and a further 6 hours on a Saturday each week, to be found at page 40. Mr Umarji told me in evidence that the visits usually lasted in the region of 10 minutes, which Mr Singh did not dispute. It is difficult to accept that any meaningful examination of the compliance records could take place in that time, even if he had thought to access the vehicle files on the shelf in the office (evident in the photographs produced by Invergold). His answer confirmed that he relied on Mr Lynch to show him anything. He thought it acceptable to rely on assurances from Mr Lynch rather than check himself but would not rely on trust in future. When Mr Lynch stopped analysing drivers’ records by eye in April 2021 and engaged the analysis tool, Mr Singh was shown the new software and was told that it was running well, but probably did not ask him for any specifics.

Mr Singh confirmed his awareness of the desk-based assessment by DVSA in September 2021 but attempted to suggest that he had little or no involvement with collating the paperwork in response. Under cross-examination he could not recall having a conversation with Mr Umarji about the invitation from DVSA to make representations. He denied that he was not contactable when it was suggested that several calls had been made to him after that. I found Mr Singh’s assertion to be inconsistent with his confirmation that he attended the “Customer Visit” conducted by Invergold in January 2022, which was called in response to the DVSA findings, but even Mr Umarji could not remember the detail of his contact with Mr Singh because Michael (Lynch) did most of the paperwork. In Mr Singh’s words, he continued to rely on Mr Lynch to identify any issues and he was under the impression that the Public Inquiry arose because of the failure to have a vehicle inspected. He could not recall the exact purpose of the ‘audit’ by Invergold.

3In response to cross-examination, Mr Singh stated that he had never given permission for anyone to sign documents on his behalf or gave permission for someone to copy his signature. He confirmed that Michael Lynch had once drafted a letter to the drivers, which Mr Singh was to sign. Mr Singh thought that the letter might have a been a warning to one or two drivers about infringements but he could not be sure. Mr Lynch had interviewed the drivers. When I asked whether he had any contact with drivers, he responded “never”, but then stated that he had seen a driver to hand over a warning letter. The driver had been called in especially as Mr Singh was present. Ms Evans then put to him the WhatsApp message of 7 November 2020 referring to as signature being sent to him for him to copy on to a document as he could not attend. It was also suggested that whilst he attended the Operating Centre on occasions, if he was short of time, he would leave a piece of paper with his signature, to be added to any documentation. Mr Singh may not have been “prevented” from seeing the RHA analysis, to quote Mr Umarji, but there was clearly no expectation that he would carry out those responsibilities. Mr Umarji admitted that the response to DVSA was ‘signed’ at the instruction of Mr Lynch, but in his presence and with his knowledge.

Mr Singh gave the impression of an inconsistent witness. Mr Umarji contradicted his denial of having access to the records, but both accepted that his visits were short and infrequent. The evidence and representations were clear, this was intended to be a short arrangement with Mr Lynch actually carrying out the tasks of the Transport Manager pending him requalifying, which never occurred. All the evidence suggests that Mr Lynch was aware and heavily involved. The arrangement was a device from the outset. It was suggested that after I started to uncover the extent of this deception, the parties had come clean. I regret that the evidence does not support that conclusion. At the second hearing I was informed that Michael Lynch had left his employment with this operator in April 2022, shortly after the first hearing. I was only informed of this at the second hearing, but what also emerged was clear evidence of the knowledge and the failure to notify. The attempt to blame the pressures of the pandemic did not live up to scrutiny. The nomination of Mr Singh to support the upgrade to standard international operations was a sham and only possible through the collusion of the Directors, Mr Singh, and Mr Lynch. It was accepted from the beginning, despite the TM1 form, that Mr Singh did not have enough time to be the Transport Manager so they agreed that Mr Lynch would continue, and that Mr Singh would oversee him. That so called oversight amounted to the brief visits described by both witnesses.

The intervention by DVSA gave the operator opportunity to regularise the position. Instead, in response to the request of 27 September 2021, Mr Lynch, in the presence of Mr Umarji, instructed a member of staff to sign, purporting to be Mr Singh. The content had been checked by Mr Umarji and Mr Lynch but purported to show that Mr Singh was involved, meeting the obligations of a Transport Manager and had authorised the response. A similar approach was taken to the request for follow up information. Irrespective of whether anyone could have thought that Mr Singh has agreed to this, there can have been no doubt that this was a false document, and so false that it was intended to mislead. I was initially left with the impression that this had only occurred to the parties once Mr Singh admitted that it was not his signature in response to my examination at the first hearing. That too proved to be misleading. Mr Singh was present at the Customer Visit conducted by Invergold in January 2022. Mr Umarji was not sure if Mr Singh was aware of the content but there was a discussion about the DVSA conclusions in the desk-based assessment. There was an agreement to work together to address the concerns. Mr Singh apparently suggested finding another CPC holder to fulfil the role. The Directors were aware then that they needed help to get compliance up to scratch and they decided to find another Transport Manager. That led to the appointment of Ms Kaur.

Mr Umarji tried to claim that there was no cover-up, but the operator and Mr Singh agreed that he would attend a Transport Manager refresher course. What possible benefit would that afford if he was not actually exercising the Transport Manager functions? I am satisfied that its only purpose was to present to authorities, as it was in advance of the first hearing, to bolster the operator’s claim that it could ensure future compliance, based on the nomination of Mr Singh. Once again, the parties failed to disclose the true position and that continued to a degree until my cross-examination during the second hearing.

5. Determination

The relevant legislation on driver conduct is set out in Sections 110-122 of The Road Traffic Act 1988. The legislation draws a clear distinction between Large Goods Vehicle (LGV) licence holders and applicants and Passenger Carrying Vehicle (PCV) licence holders and applicants.

Section 112 of the 1988 Act provides that the Secretary of State shall not grant to an applicant a LGV driver’s licence or a PCV driver’s licence unless he is satisfied, having regard to his conduct, that he is a fit person to hold the licence applied for. It is section 121(1) which defines conduct:

• in relation to an applicant for or the holder of a LGV driver’s licence or the holder of a UK licence for the Community, his conduct as a driver of a motor vehicle; and

• in relation to an applicant for or the holder of a PCV driver’s licence or the holder of a PCV Community licence, his conduct both as a driver of a motor vehicle and in any other respect relevant to his holding a PCV driver’s licence or (as the case may be) his authorisation by virtue of section 99A(1) of this Act to drive in Great Britain a PCV of any class.

The Administrative Court, on the application of Meredith and Others EWHC 2975 (Admin) 18 explained that, whilst the personal circumstances of the driver are, at the preliminary stage of consideration of fitness, irrelevant to the question whether his conduct as a driver has been such as to make him unfit, save to the extent that those circumstances concern his conduct as a driver. Personal circumstances which go to mitigate the conduct itself (such as illness, or emergency, or momentary lapse of attention, or carelessness) will be relevant, while personal circumstances which would, in the ordinary sentencing exercise by a criminal court go to mitigation of penalty (such as loss of work, or other hardship, or the dependence of others upon the licence-holder) would not.

The representations accept that both directors are now aware of the responsibility to record full duty periods on their card and there is evidence of failing to record a ten-minute walkaround check. They accept they should set an example and by implication that they were not prior to the wake-up call by DVSA. The submissions referring to a lack of cited examples appear to undermine the suggestion that the DVSA intervention has acted as a wake-up call. The examples are available from the operator’s own records and should have been identified by the Transport Manager, including the failure to record walk rounds.

Mr Patel was also found to have committed a speeding offence on 11 March 2019 when travelling to refuel his personal vehicle. He failed to appreciate that the speed limit had reduced from 50mph to 40mph and was using cruise control. This resulted in the Fixed Penalty Notice.

The Administrative Court did not go on to consider the applicability of the principle of deterrence, which was considered by the Court of Session in Thomas Muir (Haulage) Limited v The Secretary of State for the Environment, Transport and the Regions [1999] SC 86, but regulatory action undoubtedly contributes to achieving of the purpose of the legislation. I was told that the Directors currently only drive to deliver vehicles to the maintenance contractor but the impact of my decision in respect of the operation may change that. It will inevitably have a deterrent effect on the Directors in exercise of their vocational entitlements. I have therefore determined to deal with all matters holistically, although these Drivers should be under no misapprehension as to the likely impact of any further offending.

The issues identified by DVSA were accepted by the operator. It is also accepted that management, such as for drivers’ hours was inadequate. It was accepted that the operator failed to download the vehicle units until September 2021. The operator suggested that although the infringements were not reported in writing, they were being managed. There is only their word for this. It was left to Mr Lynch, who should have known better. In that context the move to purchase RHA drivers’ hours software and management systems, immediately prior to the DBA carries limited weight.

I make similar observations in respect of the management of maintenance systems. The representations refer to “fairly rudimentary systems” for load security, wheel and tyre management, and emissions. I would extend that description more widely. The fact that closer management of the maintenance providers is said to have improved compliance only goes to illustrate the misplaced arrogance of the response to DVSA, drafted by Mr Lynch. For the avoidance of any doubt a future application involving Mr Lynch will need to be referred to a Traffic Commissioner for consideration of the events recorded above.

Paragraph 58 of Statutory Document No. 3 on Transport Managers explains: One of the purposes of the legislation is to avoid a situation where the transport manager acts in name only and does not have continuous and effective management of the transport operation. As per the appellate Tribunal in cases such as 2010/049 Aspey Trucks Ltd, 2009/307 Anne Jones Edwards and Edward Anthony Jones, a Transport Manager must always be more than just a transport manager in name and a transport manager risks their repute if they find themselves in a position where they cannot meet the statutory duty. It is also true that persons who control an entity which operates heavy goods or public service vehicles must have sufficient knowledge to exercise proper oversight. These requirements apply equally to all operators regardless of the size of the organisation and are an important part in maintaining the relationship of trust upon which the licensing system is based.

Mr Singh refuted the operator’s suggestion that he did not conduct his duties properly but went on to confirm that he relied on their assurances rather than checking himself. He was told that Mr Lynch was undertaking those duties, but he came to realise that Mr Lynch was not employed in-house. Mr Singh views this is a breach of his trust and claimed that the Directors had used him and then threw him out. He referred to attendance at their solicitor’s office and advice that he would require separate representation. Mr Singh described having been trapped which he attributed to the trust he placed in the Directors. He suggested that he regrets that now and referred to his qualification and the refresher course undertaken in July 2020.

An operator must supervise and monitor the actions of a Transport Manager by, for example, checking the maintenance inspections, the annual test pass rate, the number of prohibitions issued, the DVSA Operator Compliance Risk Score, the arrangements for securing compliance with the drivers’ hours’ rules and tachograph regulations etc. All that was handed over to Mr Lynch. The evidence confirms that Mr Singh’s appointment was a clear device to allow Mr Lynch to continue to act as de facto Transport Manager, even though he did not hold the requisite qualification to manage international operations. In fact, the evidence raises serious questions about his ability to exercise effective management of any operations. His involvement and subsequent responses are not indicative of a reputable Transport Manager, and I make that finding of loss of repute under section 27(1)(b). The law requires a disqualification of no less than 12 months. This is not just a case of failing to manage compliance, the evidence suggests such poor judgement of Mr Singh’s part that it is difficult to conceive of an effective rehabilitation measure. He expressed his apologies and indicated that he has one dependent child, currently in school, but he is not currently relying on his Certificate of Professional Competence. I have therefore imposed a disqualification of 12 months but also direct that a future application to nominate Mr Singh as Transport Manager would need to be referred to a Traffic Commissioner in order to assess his ability to act in that capacity.

In assessing whether the operator can be trusted to ensure future compliance, as per the Upper Tribunal in 2009/225 Priority Freight, I have attempted to describe the apparent improvements, and the involvement of Ms Kaur. She told me that she regularly attends the Operating Centre, whilst also working from home, at times. Ms Kaur only saw Mr Lynch once, when she applied for the role. She has read the latest Customer Visit report from Invergold and assured me that Directors act on her advice. I noted the significant improvement in the management of drivers’ hours infringements, although some drivers are still not returning the analysis sheets supplied to them. Concerns were expressed regarding a couple of drivers, including Mr Tutla, who was the source of concern recorded above. Warnings have been issued, for instance to Driver Lalan. Drivers have been offered external training, where considered appropriate. She was asked to comment on the previous failure of the Directors to record their hours. I was told that neither Director is driving, except to take the vehicles for inspection. The relevance to my determination was accepted.

I was told that the operator needed a ‘wakeup call’. The inspection records suggest that roller brake testing is still not consistent with vehicles being presented under-weight. On Mr Umarji’s evidence arrangements for trailers to be loaded have only been engaged within the fortnight before the second hearing, despite the considerable gap between the two hearings. After the second hearing I was provided with a brake test report for FJ64KCG, showing 67%, 25%, 24%. The secondary brake reading was not transposed on the Preventative Maintenance Inspection record completed by M N Commercials. I was told that drivers undertake walk rounds in the morning and that they have received training. Whilst examining the recent inspection records, it was suggested to me that the named contractor had left driver detectable defects on successive inspection forms because the operator had opted to have the defects rectified elsewhere. Ms Kaur was told that a Director had spoken to the contractor and she has personally checked some of the defects to ensure that they have been rectified. This was not apparent from the maintenance records and there was no written record of any contact with the maintenance contractor. I have subsequently been supplied with a maintenance contract dated 6 January 2023 with MN Commercials. I did not invite additional material beyond ‘actuarial’ evidence of the type described by the Upper Tribunal in 2013/047 Dundee Plant Hire Ltd. It does go to further illustrate that this operator was unable to address importance issues such as these despite the long delay between the two hearings.

I was offered the following undertakings, which I weighed into the balance:

• The operator will arrange an independent audit to be carried out by the RHA, Logistics UK or other suitable independent body by the 1st September 2021. The audit will assess the systems for complying with maintenance and drivers’ hours requirements, and the effectiveness with which those systems are implemented. The audit should cover at least the applicable elements in the attached annex. A copy of the audit report, together with the operator’s detailed proposals for implementing the report’s recommendations, must be sent to the Office of the Traffic Commissioner by email within 14 days of the date the operator receives it from the auditor.

• The directors will attend an Operator licence awareness training course within 14 days and provide evidence of attendance to the Office of the Traffic Commissioner within 14 days of the course. The course is to be provided by a trade association (Logistics UK/RHA /BAR /CPT), a professional body (IoTA / CILT/ SOE / IRTE), or an approved exam centre offering the management CPC qualification.

The operator apparently anticipated an outcome which would permanently curtail the fleet to the margin. From the outset of proceedings, the operator acknowledged the serious issues identified by DVSA. What it apparently failed to appreciate is that I was misled by the operator’s statement regarding professional competence. Prior to the first hearing it was suggested that I might find this case to fall within the ‘Moderate’ category. The operator then acknowledged in writing that Mr Singh attended the Operating Centre approximately once per month, but that his role has been largely supervisory with most of the tasks performed by Mr Lynch. The full extent of the efforts to mislead only became apparent during the second hearing when evidence emerged of the repeated failures to come clean in the face of the obvious. The suggestion following the first hearing that the operator had only just woken up to the seriousness of its position was not supported by the evidence and I am satisfied that it persisted with a device which was intended to mislead, to its own commercial advantage.

The operator submitted that this is a case falls into the ‘Serious to Moderate’ category, relying on the improvements identified in evidence. It is worth noting that at the first hearing it was seriously suggested that I would allow a situation with a new Transport Manager for only 2 days a week but with Mr Lynch continuing in his role. In fact, Mr Lynch’s involvement was reduced during the pandemic when he suffered from the virus and carried out most of his work from home, overseeing documentation which was supplied to him electronically. I take account of the impact of the covid restrictions. I was told that this had a significant effect on the business and that goods movements slowed and many of the vehicles and trailers were parked up. Work has now picked up, and the 9 vehicles and 8 trailers are being operated. The operator has not been able to renew the fleet, as planned. However, MHO4 GSB, is due to be replaced in the next two months. This will be followed by WX56 AED.

As Ms Evans’s email of 10 January 2023 confirms, I allowed 7 days to provide better evidence of the impact of regulatory action. I was also then provided with further submissions suggesting that I might satisfy myself as to future compliance by the operator’s decision after the hearing to engage MN Commercials. That action is inconsistent with the suggestion that the operator has used the 18 months since the investigation commenced to ensure full compliance with the basic requirements of the operator’s licence. I referred to the excel spreadsheet of expenses for November and December 2022, detailing the outgoings. The covering email accepts that a curtailment to the margin is not appropriate given the categorisation of this case, but I was asked to depart from the starting point given the improvements, which I have attempted to describe. The correspondence confirmed that arrangements are underway to assign the majority of the UK business to a third party, ‘in hand within 28 days’. However, the operator wished to retain the international element of the business, requiring 3 vehicles and I was asked to consider allowing international operations to continue.

However, I returned to the impact on trust and particularly reliance on the Directors to ensure future compliance. The Senior Traffic Commissioner’s Statutory Document on Repute refers to the relevant case and clearly states that all operators have a positive duty to co-operate with the authorities and any attempt to deceive a traffic commissioner is serious conduct that cannot be condoned, particularly where an operator and/or applicant relies on a document that has been altered so that it might mislead a traffic commissioner. Operators who deliberately deceive and present false evidence to traffic commissioners, either in correspondence or at public inquiry, may be liable to prosecution.

This may have been the operator’s first Public Inquiry, but it consisted of two hearings separated by 9 months, during which the operator had adequate opportunity to put things right. A licence is issued to an operator on trust that the operator will comply with the requirements. As was suggested by the Upper Tribunal in 2014/008 Duncan McKee and Mary McKee and 2006/277 Fenlon, 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 operators 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. Other operators looking at the facts of this case would be entitled to question their efforts to comply if deterrent action were not to be taken as per the Tribunal in 2019/025 John Stuart Strachan t/a Strachan Haulage. I have set the revocation date to allow for an orderly and safe run down of the operations and by reference to the representations received following the second hearing.

For all the reasons summarised above, the operator’s actions have so eroded my trust that I have concluded that the operator must be removed from the industry and that accordingly I have recorded a loss of repute, pursuant to section 27(1)(a). I have referred to the device employed by the operator and the continued failure to admit the extent of the deceit. I have recorded deliberate acts that undermined the jurisdiction and were intended to afford a clear commercial advantage, so that the case fell within the ’Severe’ category. As the Tribunal explained in 2005/457 Leslie John Ings, the purpose of the jurisdiction is to regulate the conduct of operators so as to ensure, first and foremost, compliance with the legislative framework of operator’s licensing. There is no requirement to identify additional features so as to consider disqualification, but in this case, the conduct is such that a period of disqualification is required so as to emphasise the seriousness. 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. In setting the period I have taken account of the recent improvements and have settled on a period of 2 years for the operator. I can distinguish between the actions of the two Directors. They were both clearly aware of the initial devise and of the attempts to mislead me. However, Mr Umarji was present when the false signature was applied to the response to DVSA. Accordingly, Mr Patel will be disqualified for a period of 12 months, whilst Mr Umarji will be disqualified for two years.

R Turfitt

Traffic Commissioner

12 January 2023