Decision

Decision for MK BUILDERS MERCHANTS LTD

Published 23 December 2021

1. WEST MIDLANDS TRAFFIC AREA

2. DECISION OF THE TRAFFIC COMMISSIONER

2.1 PUBLIC INQUIRY HELD ON 17 NOVEMBER AND 8 DECEMBER 2021

2.2 OPERATOR: MK BUILDERS MERCHANTS LTD LICENCE OD1107024

3. Background

MK Builders Merchants Ltd holds a restricted goods vehicle operator licence (OD1107024) for two vehicles (one currently in possession), with the authorised operating centre at 160 Rookery Road, Birmingham B21 9NN. The licence was granted in 2011. The directors of the company are Mohinder Singh and (since 18 June 2021) his brother Kulwinder Singh.

In June 2019 DVSA vehicle examiner Gary Ollis carried out a maintenance investigation into the operator. His resulting report marked the operator “unsatisfactory” as a result of the following issues found during his visit:

• Three roadworthiness prohibitions out of four encounters, for an inoperative direction indicator (in each of the three prohibitions) and a leaking brake valve;

• multiple MOT failures. The operator’s (then) current vehicle PE09 EVP, specified on the licence in February 2018, had failed its MOT both in 2018 (sideguards, underrun and bumpers) and 2019 (condition of tyres). The previously specified vehicle (PO58 HYX) had failed its MOT in 2015, 2016 and 2017, on the last occasion for a large number of serious issues (lamps, condition of tyres, brake systems and components, service brake performance, axles/stub axles/wheel bearing, electrical wiring & equipment);

• a prohibition for overloading;

• vehicle maintenance records showed that no meaningful brake test was being carried out.

Later in June 2019 Mr Ollis received a reply from the operator. In it director Mohinder Singh wrote that “We confirm that all records and safety measures and mechanical maintenance are all met in the coming future”.

In July 2021, DVSA vehicle examiner Austin Jones carried out a follow-up visit (much delayed by Covid). He found that:

• the vehicle was not being parked at the authorised operating centre in Handsworth but at a premises in Smethwick, across the city;

• the six week inspection interval was not always being adhered to, with intervals of up to nine weeks;

• there was still no evidence of any meaningful brake tests, just road tests;

• the tachograph in vehicle PE09 EVP should have been recalibrated by 4 February 2021. Successive safety inspection records dated 15 May and 26 June 2021 recorded the vehicle’s tachograph as out of calibration, with “advise tacho out of date” written on the sheet. It had finally been calibrated on 14 July 2021, two days before Mr Jones’s arranged visit;

• the records frequently showed driver detectable defects such as broken lights and mirrors, suggesting that driver defect reporting was ineffective;

• there had been a further MOT failure for PE09 EVP in October 2020, for indicators, service brake, secondary brake and suspension).

VE Jones noted that much the same issues had been identified during the 2019 investigation and compliance did not appear to be improving: indeed it appeared to be worse. He concluded that “Mohinder Singh can only at best be described as ineffective in relation to the management required for the operation of HGVs”.

Although VE Jones sent his report by email to the address given to him by Mohinder Singh during his visit, and sent reminder letters dated 4 and 16 August 2021 chasing a response, no reply from the operator was received.

4. Public inquiry

Concerned by this report, I decided to call the operator to a public inquiry. The call-up letter was sent on 8 October 2021. In preparing for the inquiry I noted that PE09 EVP had failed its MOT yet again on 20 October 2021, this time for service brake performance and rear markings and reflectors. This was the fourth failure out of four for this vehicle, making a total of seven failures out of seven since 2015.

The inquiry was held in Birmingham on 17 November 2021. Present were director Mohinder Singh and transport consultant Charlie Ahmed, of Invergold Associates, representing. A Punjabi interpreter was also present, as Mr Singh had requested one.

Mr Ahmed made the following points on behalf of the operator:

• the company held a restricted operator’s licence, meaning that HGV operation was not its core business and therefore knowledge and expertise in HGV operation were lacking;

• Mohinder Singh had recently attended a new operator seminar but owing to his poor English had not understood much of it;

• the operator had relied heavily upon its maintenance contractor, Action Garage Midlands Ltd (“AGM”). AGM did not prepare vehicles properly for MOT but simply submitted them for test to see what needed repairing. After effecting the repairs and submitting the vehicle for a retest, AGM simply gave the pass certificate to the operator. Mr Singh had not been aware of the high MOT failure rate;

• the company had now changed maintenance provider at the suggestion of Invergold;

• Mohinder Singh’s poor English had prevented him from properly reading and understanding the vehicle safety inspection records. He had just assumed that AGM were doing a competent job;

• Invergold’s audit of the operator had shown that it was not downloading and analysing tachograph data. Mr Singh had not known what to do, so he had simply taken printouts from the vehicle unit. Invergold had conducted an analysis for 2021 and found only one weekly rest offence, and no missing mileage (although the period which could be analysed for missing mileage was only about three weeks, owing to the operator’s failure to lock data in when the vehicle was acquired in February 2018). The operator had now entered into a contract with Trutach to provide tachograph analysis;

• Mr Singh had pulled out all the stops since Invergold had come in to advise: Mr Ahmed was sure that the company would honour its undertakings from now on.

I asked Mohinder Singh why he had not realised in 2019, when DVSA had produced its first unsatisfactory report, that AGM were not doing a good job, since the report had explicitly referred to the 100% MOT failure rate and the absence of any meaningful brake tests. Mr Singh said that he had relied on AGM who had assured him that they were doing everything correctly.

Pressed on how he could have confidence that AGM were doing everything correctly when the 2019 report clearly showed that they were not, Mr Singh said that he would look after everything properly from now on. Mr Ahmed added that AGM told a convincing story about their competence to non-experts like Mr Singh.

I reminded Mr Singh that he had made exactly the same promise of future compliance in his response to DVSA of June 2019. Could he point to anything specific that he had done to make sure this promise was kept? Mr Singh said that he had placed reliance on AGM and on his brother Kulwinder Singh, who was doing an operator licence management training course the next day (18 November 2021). There had been some miscommunication between him and his brother.

I asked why the company was parking its vehicle at a place which was not its authorised operating centre. Mohinder Singh stated that he had had a problem with his neighbour at the Handsworth operating centre and had therefore parked it elsewhere (in Smethwick, at another MK Builders Merchants’ premises). He had not realised that he needed to make an application apply to change operating centres.

Mr Singh further stated that the vehicle had sometimes gone beyond its inspection frequency because he had relied on AGM to tell him when it was due. Sometimes they had been busy and so had not taken the vehicle in until after the six week interval.

Mr Singh had not realised that the tachograph calibration was out of date. He had left it to Kulwinder Singh to look at the safety inspection sheets. I noted that Invergold’s audit had also reported that the vehicle’s LOLER certificate was out of date. Mr Singh apologised for not having seen that either.

I asked about vehicle BX56 MVE, which had been on the licence between October 2020 and April 2021. Why was there no maintenance documentation available? Mr Singh said that the wrong registration number had been entered into the database. It should have been XM07 MKM. This had been corrected in April 2021: the vehicle had remained specified until 7 August 2021. I noted that no maintenance records had been supplied for this vehicle either. Mr Singh said that it had been off the road.

Asked about the vehicle overload incident, Mr Singh said that just one more pack had been added to the vehicle. The distance that day was a long one and they had needed to take the extra pack.

Asked why he had failed to respond to VE Jones’s report and chasing emails, Mr Singh said that he had never received them. Mr Jones (not present at the inquiry) subsequently stated to my clerk that he had not received any “undelivered” message.

4.1 Concluding remarks

Mr Ahmed said that this was the operator’s first public inquiry. The message had now sunk in. The maintenance provider AGM had been responsible for many of the problems: the operator had now contracted with a more reputable company with better facilities, which would include roller brake tests for the vehicle at each safety inspection. The operator had also contracted with Invergold to give support for the next 12 months: Invergold would visit monthly to check compliance, give advice etc.

Revocation or a lengthy suspension would have serious consequences for the business, which relied on the use of an HGV to make deliveries. Business and contracts would be lost. Mr Ahmed suggested that a suitable regulatory outcome might be a curtailment of the licence from two vehicles to one, with cancellation of the curtailment dependent on a satisfactory audit in 6-12 months time.

The operator was very sorry for its poor record. Mr Singh was very anxious about the future. He had made great efforts in recent weeks and Mr Ahmed believed that I could be confident that the operator would continue to comply. Mr Singh would appreciate one last chance to get it right.

4.2 Inquiry adjourned

I adjourned the inquiry at this point in order to take a written decision and to await the operator’s production of the driver defect book(s) covering the period August to October 2020 (from my examination of the maintenance records I suspected that vehicle PE09 EVP had been operated during September 2020 while it was out of MOT).

Immediately after the inquiry, Mr Ahmed came to see me in my office to complain that the standard of interpretation into and out of Punjabi had been very poor and that Mohinder Singh had not had a full opportunity to get his case across. While the standard of interpretation had clearly not been excellent, I noted that on several occasions Mr Ahmed had rephrased my questions in Punjabi to make them more comprehensible for Mr Singh. I noted that I had fully understood the gist of Mr Singh’s argument, which was that he had relied on AGM and, to a lesser extent, on his brother Kulwinder, and that he was very sorry and promised to do everything right in the future. If there was anything else which he wished to add, I suggested that he put it in the form of a written submission which I could then consider. I asked for this to be sent to me by close of business on Friday 19 November (two days after the inquiry).

While I accept that the interpretation could have been better, I have to say that Mohinder Singh did not aid the interpreter with his very long answers. I stressed to him on several occasions that he needed to break up his replies into shorter sentences and wait for them to be translated before carrying on. He proved incapable of complying with this request and proceeded each time to give long answers which no interpreter could possibly remember in full.

4.3 Further submissions

Friday 19 November came and went with no submission being received. The next week my clerk received a communication from Mr Ahmed stating that a relative of his had died on 20 November and that he had had to deal with this. He asked for more time. Although I could not quite understand why this unfortunate occurrence had prevented a submission being made by 19 November, I agreed to extend the deadline until 0900 on Monday 29 November. Shortly after this deadline passed, Mr Ahmed handed in some documents in person.

The documents were:

• A safety inspection sheet dated 26 November 2021 for vehicle PE09 EVP completed by the new maintenance provider MJB Truck Services Ltd. The inspection sheet recorded 22 defects, of which some 13 should have been spotted by the driver on his walk-round check. I noted that one defect, “Adblue injector pipe not connected to injector”, had been identified on the previous inspection sheet from AGM dated 4 October 2021 when the action had been to “advise”. Clearly the operator had done nothing to rectify the defect more than seven weeks later. Throughout that period the legally required AdBlue system had not been functioning;

• the driver defect book for PE09 EVP over the period August to October 2020. This clearly showed that the vehicle had operated throughout September 2020, after its MOT had expired on 31 August 2020 (benefiting from a three month extension from the original expiry date of 31 May 2020) and before it eventually regained an MOT on 5 October 2020 (after initially failing on 2 October). During the period the vehicle was out of MOT, it had travelled 2107 km;

• a submission from Mr Ahmed in which he reiterated his complaint about the quality of the interpretation and gave some examples where Mohinder Singh’s reply had been incorrectly interpreted;

• a personal statement from Mohinder Singh in which he indicated his dissatisfaction with the interpreter and his view that her inadequacies had prevented him from getting his points across to me. For instance, even when he had told her that he wished to make a point to me, she had not communicated that fact correctly and so he had not been able to do so.

I noted that Mohinder Singh’s personal statement did not actually contain any point additional to those he made at the inquiry, even though I had told Mr Ahmed that if he had any such points then he should include them. I also noted that the “correct” answers to my questions given in Mr Ahmed’s submission did not substantively change the tenor of the inquiry.

4.4 Inquiry reconvened

Nevertheless, for the sake of fairness, I decided to reconvene the inquiry briefly with a different interpreter so that Mohinder Singh could answer my questions again and add anything he wished to.

The inquiry was reconvened in Birmingham on 8 December 2021. Present again were Mohinder Singh and Charlie Ahmed; a different Punjabi interpreter had been engaged.

Mr Ahmed presented further documents, including a training certificate showing that Mohinder Singh had attended an operator licence management course on 18 November 2021, photographs of a new 61-plate vehicle which had now replaced PE09 EVP, and a first use safety inspection report for the new vehicle.

I asked Mohinder Singh what the points were which he believed the interpreter had failed to get across to me on 17 November. He stated that he had relied on AGM: they had told him that everything was fine. Again I asked how he could believe that when DVSA’s June 2019 investigation had very clearly showed that everything was not fine. Mr Ahmed again stated that AGM were very convincing to non-experts about their competence. I asked Mohinder Singh if he could point to any specific action he had taken following his June 2019 letter to DVSA to ensure that the promises in that communication were fulfilled. He could not.

I asked Mr Singh why PE09 EVP had been operated throughout September 2020 without an MOT. He said that he had been confused about the MOT extension dates and that AGM had not been able to book the vehicle in for an MOT until early October 2020. They had told him it was all right to continue operating in the meantime.

Mr Ahmed reeled off a list of improvements the operator now intended to introduce. These included:

• frequent and remote downloading of digital tachograph cards and units;

• a newer vehicle (already in service);

• visits by Invergold twice a month (could be three times);

• the possibility of bringing on board a transport manager CPC holder;

5. Findings

Having considered all the evidence before me, I make the following findings:

• the operator has used an unauthorised operating centre (Section 26(1)(a) of the 1995 Act refers). The vehicle has been parked at a premises in Smethwick rather than at the authorised centre in Handsworth;

• the operator’s vehicles have incurred prohibitions (Section 26(1)(c)(iii) of the 1995 Act refers). There have been three roadworthiness prohibitions and one overload prohibition within the last four years;

• the operator has not fulfilled the promise made on application that vehicles and trailers would be given a safety inspection every six weeks (Section 26(1)(e) of the 1995 Act refers). There have been several intervals of up to nine weeks;

• the operator has failed to fulfil its undertakings (Section 26(1)(f) of the 1995 Act refers):-

a) to ensure that vehicles would be kept fit and serviceable. Vehicles have failed every annual MOT since 2015 and have clearly been in an unroadworthy and illegal condition;

b) to ensure the observance of rules relating to drivers’ hours and tachographs. No downloads of driver cards or tachograph units or analyses of drivers have ever been carried out until Invergold did an analysis on 2 November 2021. The operator has had a digital tachograph vehicle in its possession for nine years, since 2012. Drivers’ hours infringements were therefore neither identified nor addressed during that entire period;

c) to ensure that drivers report defects promptly in writing. The numerous driver detectable defects on the periodic safety inspection reports (and on the vehicles at the times they have incurred prohibitions) show that drivers were failing to identify and record what should have been obvious defects;

d) to ensure that the laws relating to the driving and operation of vehicles were observed. The specified vehicle was operated for several months while out of tachograph calibration and after its LOLER certificate had expired. It operated throughout September 2020 while out of MOT and in an unroadworthy condition.

• The company’s response to the unsatisfactory marking it received from DVSA after the June 2019 maintenance investigation was wholly inadequate. Although Mohinder Singh promised that everything concerning safety, maintenance and records would be done correctly in future, in practice he did almost nothing to make sure that this would be so. He continued to rely on the assurances of the maintenance provider (AGM) which was responsible for the very shortcomings (100% MOT failure record and absence of brake tests) identified in the DVSA investigation. Mohinder Singh never subsequently checked what was happening to the vehicles at MOT or whether meaningful brake tests were now being done. This negligence is inexcusable.

5.1 Balancing act

I carried out a balancing act. On the negative side of the balance are the above findings. I attach significant weight to the very bad MOT record, the absence of brake tests at safety inspections, the failure to have any kind of system for monitoring drivers’ hours, the failure to be aware of deadlines concerning MOT, tachograph calibration and LOLER certification, the failure to read safety inspection reports and therefore the failure to take action to rectify serious defects (eg the faulty AdBlue system) and to the operator’s failure – despite its promises - to take any substantive corrective action following DVSA’s criticisms in 2019.

On the positive side of the balance are the fact that, upon being called to this public inquiry, the operator engaged the services of Invergold Associates who carried out a “warts and all” audit (and there were plenty of warts); that Mohinder Singh attended an operator licence management course after the inquiry; that the operator is prepared to have another audit in 6-12 months time. A mitigating factor for the failure of drivers’ hours systems is that, for 2021 at least, the actual rate of driver infringement (once identified by Invergold) appears to have been low (although it is impossible to get a full picture owing to the inability to download historic data from the vehicle unit).

My conclusion is that these positives are too little and come too late. DVSA found in 2019 that Mohinder Singh was wholly ineffective in the task of managing an HGV operation. Instead of heeding this wake-up call he did nothing, continuing to leave compliance to others, assuming (against the overwhelming body of the evidence which was clearly available had he bothered to look) that everything was being well managed. The result was that the vehicle continued to operate in a frequently unroadworthy condition, posing a threat to the safety of other road users and to fair competition against others in the sector who pay for proper brake tests, do not operate unroadworthy vehicles, and exercise proper oversight of drivers’ hours.

I asked myself the Priority Freight question of how likely it is that the operator will comply in future. I conclude that this is highly unlikely. Because Mohinder Singh’s assurances of future compliance in 2019 turned out to be worthless, I attach little weight to the same assurances given now. Even allowing for interpretation difficulties, I find it impossible to conclude from the inquiry that Mr Singh has the necessary understanding, ability and drive to ensure compliance in the future. His tactic of blaming everyone but himself for his inaction and relying wholesale on “Charlie” (Mr Ahmed) for future compliance did not impress me. I do not think that Mr Singh has it in him to run a compliant operation: even today he shows little understanding of what is involved.

A negative answer to the Priority Freight questions tends to suggest an affirmative answer to the Bryan Haulage question of whether the operator deserves to go out of business. In this case we are talking of a builders merchant with a restricted operator licence, so the business might be able to survive using third party haulage or smaller vehicles. But if it cannot, then this will be a merited outcome for non-compliance on this scale and over such a period of time, and the failure to seize the chance in 2019 to correct it.

6. Decisions

6.1 Operator licence

I find that the operator is not fit, for all the reasons set out above, to hold a licence. Accordingly I am revoking it under Sections 26(1)(a), (c)(iii), (e) and (f) of the 1995 Act, with effect from 0001 hours on 9 January 2022.

6.2 Company and director Mohinder Singh – disqualification

For the reasons outlined above, and having performed the same balancing act described therein, I conclude that MK Builders Merchants Ltd and Mohinder Singh should be disqualified under Section 28 of the 1995 Act from holding a licence in the future. In deciding upon the length of the disqualification, I have taken account of paragraph 103 of the senior traffic commissioner’s Statutory Guidance Document 10. This posits a starting point of between one and three years for a first public inquiry (which this is). The duration and extent of the operator’s roadworthiness failings have been very significant: a mitigating factor is that Mohinder Singh’s complete failure to manage a compliant operation has been through gross incompetence, negligence and ignorance rather than malign intent. At long last and far too late he appears to have realised the seriousness of his situation and I give him some credit for this. I have accordingly fixed upon a disqualification period – 12 months – at the lower end of the range suggested by the senior traffic commissioner. Because throughout this period (up to 18 June 2021) Mohinder Singh was the sole director and controlling mind of the company, I make no distinction between them.

If the company wishes to re-apply for an operator licence at the end of its disqualification period, the chances of such an application being granted would be increased if an additional (or replacement) director was appointed with special responsibility for (and knowledge of) HGV operations.

Nicholas Denton

Traffic Commissioner

9 December 2021