Decision

Decision for Mukhtar Ahmed (PB2004796), Mukhtar Ahmed (PB2052599)

Published 24 June 2022

0.1 In the North East Traffic Area

1. Written Decision of the Traffic Commissioner

1.1 Mukhtar Ahmed PB2004796 (‘the Operator’)

1.2 Mukhtar Ahmed PB2052599 (‘the Applicant’)

1.3 Mukhtar Ahmed (‘the Transport Manager’)

2. Public Inquiry Hearing 27 April 2022

The Operator, the Applicant, and the Transport Manager - Mr Mukhtar Ahmed in each case - attended the Public Inquiry hearing on 27 April 2022, represented by Ms Carolyn Evans, Solicitor. Ms Evans had helpfully produced an indexed bundle of documents for the Public Inquiries (the ‘Mr Ahmed Bundle’).

The parties had not requested the attendance of DVSA Vehicle Examiner(‘VE’) Neil King or DVSA Traffic Examiner (‘TE’) Clare Haymer at the hearing, and the DVSA officers’ evidence, which had been added to the Brief for the Public Inquiry prepared by the Office of the Traffic Commissioner for the Operator (‘the Operator’s Brief’), by the letter from the Office of the Traffic Commissioner (‘OTC’) to Mr Ahmed dated 8 April 2022 and its attachments, was not challenged by or for Mr Ahmed.

The issues to be considered by me at the Public Inquiry for the Operator were set out in the letter to the Operator from the OTC dated 22 March 2022 calling him to Public Inquiry, contained in the Operator’s Brief at pages 6 to 13, and the further OTC letter, referred to in paragraph 5 above, of 8 April 2022.

The issues to be considered by me at the Public Inquiry for the Applicant were set out in the letter to the Applicant from the OTC dated 22 March 2022 calling him to Public Inquiry, contained in the Brief for the Public Inquiry prepared by the OTC for the Applicant and Transport Manager (‘the Application Brief’) at pages 6 to 12.

The issues to be considered by me at the Public Inquiry for the Transport Manager were set out in the letter to the Transport Manager dated 22 March 2022 calling him to Public Inquiry contained in the Application Brief at pages 16 to 24. As the application to act as the Transport Manager for Mr Longstaff had since been withdrawn (see further below) the issues in relation to that application set out in the Transport Manager’s call up letter no longer remained relevant.

Having received the Mr Ahmed Bundle, heard the representations and submissions of Ms Evans and the oral evidence of Mr Ahmed, the Public Inquiry hearing was closed on 27 April 2022, and I reserved my decisions on the matters before me. I have to apologise for the delay in producing this decision, which was the result of other commitments.

3. Background

The following summary of the background to my considerations is drawn from the Traffic Commissioners’ operator licensing records, Companies House records, the Operator’s Brief and the Application Brief, the representations and submissions made and supporting documentation produced for the Operator, Applicant and Transport Manager (in the Mr Ahmed Bundle and by Ms Evans at Inquiry and the evidence of finance produced for the Operator and Applicant), and the oral evidence of Mr Mukhtar Ahmed at the Public Inquiry. I have also referred to the relevant legislation and case law and relevant guidance contained in the Senior Traffic Commissioner’s Statutory Documents.

The Operator holds a restricted PSV operator’s licence with authority to operate one PSV issued on 13 December 2017 by the Traffic Commissioner for the North East of England. The Operator is a sole trader whose main occupation is stated as ‘self-employed taxi driver.’ One operator licence disc is in issue under the restricted PSV operator’s licence.

By section 13(1) of the Act, a PSV operator’s licence may be either a standard licence or a restricted licence. By Section 13(3) of the Act a restricted PSV licence authorises the use (whether on national or international operations) of—

(a)public service vehicles not adapted to carry more than eight passengers; and

(b)public service vehicles not adapted to carry more than sixteen passengers when used—

(i)otherwise than in the course of a business of carrying passengers; or

(ii)by a person whose main occupation is not the operation of public service vehicles adapted to carry more than eight passengers.

In this case, the Operator’s application for the restricted PSV licence relied on Section 13(3) (b) (ii) of the Act to operate vehicles with 9-16 passenger seats.

By Section 16 of the Act the maximum number of vehicles that can (except in prescribed cases not relevant in this case) be authorised under a restricted PSV operator’s licence shall not exceed two. Accordingly, if an individual or other legal entity wishes to lawfully operate more than two PSV under the authority of an operator’s licence, they will require a Standard PSV operator’s licence in their name to do so lawfully.

The Operator’s application for this restricted licence was considered by the Traffic Commissioner at a Public Inquiry on 13 December 2017, due to concerns regarding his ‘main occupation’ for the purposes of section 13(3) (b) (ii), financial standing, and arrangements to comply with the law regarding the driving and operation of vehicles. At the 2017 Public Inquiry, Traffic Commissioner Mr. Blackmore issued the licence as applied for but with the following three additional undertakings attached in addition to the standard undertakings given during the application process:

• The operator shall, during the life of the restricted licence, keep records of time spent and income earned from all occupations to enable the primary occupation to be determined. Records shall be supported by primary evidence such as payslips, P60 documents, invoices, and tachograph records. Copies of the record shall be made available to the DVSA or OTC officers on request. For the first three years of income earned from both occupations [taxi driver and mini- bus accounts separated out], are to be made available to the OTC by the 30th of May each year.
• Should income from, or time spent on the minibus operation exceed that from all other sources for two consecutive months, the operator will apply for a standard national licence.
• Mr Ahmed is to undertake OLAT course by 31st of March 2018. Certificates of attendance to be produced to the OTC within 14 days.

Mr Ahmed completed an Operator Licence Awareness Training (OLAT) course as required by the third additional undertaking on 15 February 2018. The Certificate of attendance was sent by him to the OTC after a reminder letter was sent to him by the OTC in August 2018.

The OTC also wrote to Mr Ahmed on various occasions during 2018, continuing up to December 2019, to ask him whether he had access to a vehicle and what his intentions were regarding the operator’s licence. In the last such letter sent to him by the OTC in December 2019 it was noted that a disc remained in issue under the licence but that since the licence was granted no vehicle details had been provided and that the Operator had consistently stated he was yet to commence operating under the licence. The Operator was asked, again, to confirm whether he had access to a vehicle and his intentions regarding the operator’s licence and advised that if the position remained unchanged his case would be referred to the Traffic Commissioner for consideration.

On 31 January 2020, the Operator emailed the OTC with a scanned V5C for PSV vehicle LF60 XHN, a Ford Transit minibus, advising in the email that: ‘I am attaching a V5C document to confirm I have bought a vehicle and I will be in touch soon when I have more details about my school run.’ The V5C provided showed that he took possession of the vehicle on 29 January 2020.

The Operator’s explanation at the Inquiry for the above notification is that he was concerned his PSV operator’s licence would be terminated if he failed to provide any vehicle details to the OTC. He did not want to surrender his licence. He explains that Mr Tahir Mahmood (his brother-in-law and provider of the taxi work undertaken by him in his main occupation and himself the holder of a restricted PSV operator’s licence for two vehicles) offered to transfer one of his minibuses into Mr Ahmed’s name (LF60 XHN) so that he could provide details of this vehicle to the OTC. It was agreed between them that whilst Mr Ahmed waited for his own PSV work to pick up, Mr Tahir Mahmood would continue to use the mini bus in connection with his business, Skyline Taxis. The minibus would remain as part of the Skyline fleet insurance and would be driven by Skyline drivers. The vehicle LF60 XHN remained specified against the restricted PSV licence held by Mr Mahmood trading as Skyline Taxis (PB1121586) until 21 October 2021, when both vehicles specified against that licence to be in his possession were removed.

This arrangement, it is accepted in the representations made, gave Mr Mahmood access (it is admitted, at least since October 2021) to a third minibus licence disc in circumstances where two operator licence discs were already in issue and in use under his own restricted licence for two PSV. This therefore assisted Mr Mahmood to enjoy the competitive advantage of operating a third vehicle with apparent authority without the additional burden and costs associated with applying for and maintaining a standard PSV licence, including the additional financial standing required and the costs of retaining a qualified transport manager.

Mr Ahmed now accepts that the impression he sought to give the OTC (and DVSA officers subsequently, as considered below) is that he owned the minibus registration LF60 XHN and that this was not accurate.

In March 2021, Mr Ahmed passed the examinations to gain the Certificate of Professional Competence in passenger transport.

On 13 September 2021, the OTC issued a letter to the Operator requesting the provision of documents and evidence to demonstrate his main occupation required to be kept and produced on request pursuant to the first additional undertaking attached on issue of the licence.

An email response to the 13 September letter was sent by Mr Ahmed to the OTC on 16 September 2021. The response stated that due to the COVID-19 pandemic, the Operator had not been operating and had been solely working on his main occupation as a taxi driver. As a result, the Operator stated that he only had access to accounts of his main occupation (taxi driver).

As a result of this response, the OTC wrote to the Operator again on 26 October 2021, stating that the Traffic Commissioner had reviewed the Operator’s response and was also aware that the Operator had been nominated to act as the transport manager on two new applications for standard PSV operator’s licences. This was with reference to the applications to become the nominated Transport Manager on applications made by Leslie James Longstaff t/a Bliss Limousine Hire (a party bus service) (PB2047431- made 17th August 2021) and TEESSIDE CARS 875875 LTD trading as SKYLINE TEESSIDE CARS (PB2048336 – also made on 17 August 2021). The sole director and shareholder of the second applicant, TEESSIDE CARS 875875 LTD trading as SKYLINE TEESSIDE CARS is Mr Tahir Mahmood, his brother-in-law. That application was to authorise the operation of up to three PSV.

The Traffic Commissioner was concerned that time spent on the Operator’s main occupation might be reduced in light of those two applications and the main occupation criteria may no longer be met. The Operator was subsequently requested to provide clarification regarding his intentions moving forward.

On 28 October 2021, the Operator sent an e-mailed reply to the OTC stating that he had no intention of surrendering this licence and attaching a letter from his (now former) Solicitors, Dennings Solicitors Ltd.

Solicitor Anthony Schiller of Dennings stated that the Operator had been undertaking private hire pre-booked work for up to 30 hours per week spread over seven days and that he planned to work for 3 hours per week in connection with the transport manager duties for the two operators.

Following receipt and consideration of the Operator’s response by the Traffic Commissioner, Mr Ahmed was called to attend an OTC Senior Team Leader ‘virtual’ meeting, to be held online using Microsoft Teams software, on 6 January 2022, due to concerns regarding the main occupation criteria, the operator’s intentions as a transport manager, and his intentions to commence work as a restricted PSV operator’s licence holder.

Senior Team Leader meetings are conducted by an OTC Senior Team Leader accompanied by another OTC officer to assist with notetaking.

On 6 January 2022, Mr Ahmed attended the virtual OTC Senior Team Leader meeting held by Ms. Daisy Towers accompanied by Mr Lee Betts. Mr Ahmed was asked whether he had operated any vehicles in connection with his business under the authority of his restricted PSV operator’s licence and the evidence of the OTC officers is that he confirmed he had not.

On 12 January 2022, at the request of the Traffic Commissioner, Ms. Helen Norman conducted a search of the NAS ANPR database (page 50 of the Operator’s Brief). The search showed 923 sightings of vehicle LF60 XHN between 31 August 2021 and 6 January 2022. This appeared to be at odds with the account given by Mr Ahmed to OTC Senior Team Leader Daisy Towers on 6 January 2022.

On 15 January 2022, Mr. Ahmed made an application to the Traffic Commissioner for the North East of England for a Standard PSV licence (PB2052599) for one vehicle. He is also the nominated transport manager for this application.

On 23 February 2022, Mr Ahmed was the subject of an unannounced DVSA maintenance investigation by VE Neil King, made on the request of the Traffic Commissioner following receipt of the ANPR data. In the opinion of the VE, the outcome of the visit was assessed as ‘unsatisfactory.’ The VE reported that, despite the Operator possessing the vehicle since 29 January 2020 (taken from the V5C document) there were only two safety inspections made available to him, for June and November 2021. The vehicle was not being maintained by the authorised provider for this licence stated on application and had failed its previous two MOTs (annual tests). The vehicle was however inspected by the VE at the visit and found to be clear of defects. It had a flat battery and in the opinion of the VE there was no evidence of it being recently used.

In response to the lack of safety inspection records, the VE reports that the Operator stated that as the vehicle was not being used for hire and reward safety inspections were not necessary. There were however no documented systems in place to evidence that the vehicle had been declared off road (‘Vehicle Off Road’ often referred to as a VOR declaration) during the period of Mr Ahmed’s ownership. The vehicle had failed MOTs (annual tests) both in November 2020 and November 2021 during the period since January 2020 when Mr Ahmed told the OTC he owned the vehicle and had been the registered keeper on the DVLA national record of keepers. The vehicle failed the annual test on multiple items on each occasion and then passed on presentation for re-test.

Mr Ahmed advised the VE that the vehicle had not been used for hire and reward and had only been used by the local mosque for charity work and by his brother, the VE noting that the vehicle had been specified on his brother’s licence between 16 August 2018 and 21 October 2021. This taken to be a reference to his brother-in-law Mr Mahmood.

The VE used MOT odometer reading records and the odometer reading on the vehicle at his visit to estimate the distances covered by the vehicle. He estimated that, as at the date of his visit

• The vehicle had travelled some 36,661 km since Mr Ahmed took ownership of the vehicle;

• Between the MOT on 25 November 2021 and the date of his visit the vehicle had covered 6088km. As the vehicle had been SORN’ed from 23 January 2022, the period between the dates of the SORN and last MOT was 59 days, equating to average use of 101km per day, if used 7 Days a week.

• The Operator’s response of 1 April 2022 gave details of compliance systems and records to be put in place for the restricted PSV licence and, in relation to the lack of records, change in maintainer and 100% MOT fail rate, variously stated:

• ‘As the vehicle has not been operated by me,…’

• ‘The reason for the lack of records was due to the non-operation of the vehicle by myself.’

• ‘There was a failure to notify the Office of the Traffic Commissioner as to the change in maintenance provider and I apologise for this. However, as I believe the vehicle was not being operated by the licence holder, I did not appreciate the need to notify.’

• ‘The MOT fail rate is indicative of poor maintenance standards which I do not wish to repeat. The vehicle has subsequently been sold for parts.’

• ‘I have not implemented [much of what had been learnt from the Transport Manager CPC qualification] due to what I believe to be the lack of operation of vehicles.’

The Operator completely failed to address the observations made by the VE concerning his ownership of the vehicle and the distances travelled by the vehicle during the period since 29 January 2020 and, particularly, since the last MOT in November 2021.

On 15 March 2022, the Operator was the subject of a DVSA TE visit by TE Clare Haymer. In discussions, the Operator confirmed to the Examiner that he:

• Purchased vehicle LF60 XHN from his brother-in-law at Skyline Taxis on 29 January 2020;

• Had used the vehicle since he acquired it on three occasions only, for personal/family use, including a trip to Manchester Airport. He had also taken the vehicle to the MOT centre for MOTs. He had loaned the vehicle to a local mosque to charity work. He had not used the minibus for any paid employment due to COVID restrictions. He had not operated the vehicle for hire or reward;

• Stressed that his failure to keep relevant maintenance and tachograph/drivers’ hours records was due to purchasing the vehicle around COVID and being unable to work, meaning his use of the vehicle was limited and he had not realised records needed to be kept and checked;

• Had failed to keep any records of drivers’ hours or to download driver cards or the vehicle tachograph unit as he did not appreciate that he was required to do so;

• Had sold the vehicle to M D Vehicle Services on 3 March 2022. and produced a bill of sale and proof of notification of the sale to DVLA;

• Was working for Skyline Taxis on a self-employed basis. He was paid a percentage of fares taken and then paid his fuel out of this and the rent of the operator’s premises he shares with Skyline Taxis back to Skyline.

• In his written response to the TE dated 1 April 2022, the same date as his response to the VE, the Operator details arrangements and training to be put in place for future compliance and variously reiterates that:

• ‘I state I have not operated the vehicle for hire or reward and no money or payment in kind has changed hands.’
• ‘As the vehicle was not operating for hire and reward,…’

The actual ownership of the vehicle and its use by his brother-in-law was not revealed to the DVSA TE.

At Inquiry, the Operator explained the 923 ANPR sightings of PSV vehicle LF60 XHN between 31 August 2021 and 6 January 2022 as follows. He had continued to work as a taxi driver for Skyline Taxis, using LF60 XHN only on a handful of occasions for personal use, transporting family members ‘not for hire and reward’. He described how the vehicle was also loaned, by Mr Tahir Mahmood, to the local mosque who used the vehicle for charitable purposes a handful of times, some 10-12 occasions. It also was taken for the annual tests. On the remainder of the occasions when the vehicle was sighted, it was being used commercially by Mr Tahir Mahmood, trading as Skyline Taxis.

Mr Ahmed now explains that whilst he permitted his brother-in-law to use the disc issued under his licence in a third PSV vehicle on occasions when his brother-in-law was very busy, for example running up to Christmas, he did not believe this was ‘significant or serious’. Put simply he knew it was wrong but did not realise it was so serious.

The Operator states that he remains a self-employed taxi driver, driving a Vauxhall Vivero, DS13 COU, which is an 8-seater vehicle, receiving his work through Skyline Taxis. He receives payment directly from his customers and, occasionally, from Skyline Taxis for school contract runs undertaken by him for Skyline. He had held his hire and reward taxi licence entitlements since 2016, issued by Middlesbrough Council and Stockton at Tees Borough Council. He has provided me with a copy of his short unaudited accounts for the year ended 5 April 2021 consistent with self-employed taxi driver being his only and ‘main occupation’.

I note the explanation of his taxi work income given to the DVSA TE at the investigation visit. His account of this at Inquiry was inconsistent to that given to the TE and after cross examination the concluding position ascertained was that he pays ‘rent’ to Skyline taxis of [REDACTED] per week for the radio he uses in his own vehicle to receive work from Skyline. [REDACTED].

The Operator expounds that he has not kept any record of the time spent and income earned from the restricted PSV operator’s licence PB2004796 because he has not received any such income. The only occupation he had was that of a taxi driver.

It is accepted, through the representations made, that Mr Ahmed should have explained during the STL interview on 6 January 2022 that LF60 XHN had remained on the Skyline fleet and described the arrangements he made with Mr Tahir Mahmood.

The two applications to act as the transport manager on the applications by each of Leslie James Longstaff t/a Bliss Limousine Hire and TEESSIDE CARS 875875 LTD trading as SKYLINE TEESSIDE CARS were withdrawn by Mr Mukhtar Ahmed on 24 April 2022, shortly before the Public Inquiry hearings of 27 April 2022. (A third application made known to me very shortly before the Inquiry commenced was also withdrawn after Ms. Evans took instructions from her client during a break in the Inquiry to do so.)

After OTC wrote to TEESSIDE CARS 875875 LTD trading as SKYLINE TEESSIDE CARS on 23 May 2022 reminding the company that it needed to nominate a replacement transport manager by no later than 25 May 2022, or the application would be refused for lack of professional competence, the director Mr Tahir Mahmood withdrew that application.

Mr Ahmed was advised by Ms Evans on taking legal advice in January 2022 that the agreement he had reached with Mr Mahmood must desist and that (at least) since 21 October 2021 the arrangement amounted to loaning his operator licence disc to Mr Mahmood. The Operator assures me that he acted promptly upon this legal advice and that from 23 January 2022 the minibus was kept in the Operator’s garage and was SORN from that time, until it was sold to MD Vehicle Services on 16 March 2022.

The Operator accepted at the Inquiry that despite the implication that the vehicle had been sold by him, consistent with him being its owner, the vehicle had been sold by his brother-in-law. Mr Tahir Mahmood.

The matter of the disappearance of the tachograph unit in the minibus LF60 XHN remains at large, which clearly limited any further investigations into the vehicle’s use using the tachograph data which may otherwise have been recovered from this. I have no evidence as to the circumstances of its disappearance, only the report of the speculative comment made by the purchaser of LF60 XHN to the DVSA TE that its tachograph unit was probably stolen from their yard.

My review of operating licence records reveals a very chequered PSV operator licensing history associated with family members of Mr Ahmed, including Mr Tahir Mahmood and another brother-in-law, Mr Muhammed Tufail, including instances of licence lending. I have not taken that history into account and carefully and impartially limited my considerations for the purposes of this decision solely to the particular facts and circumstances of this case, as set out in this decision.

4. Considerations and Findings

4.1 Restricted Licence

Having considered the evidence before me I conclude that Mr Ahmed has on various occasions mislead the Traffic Commissioner and DVSA officers by his statements and by his omissions in providing all relevant information to DVSA and the Traffic Commissioner, as follows.

I find that Mr Ahmed mislead the Traffic Commissioner by stating in his email of 31 January 2020 that he had bought the Ford Transit minibus LF60 XHN and by supplying a V5C for this vehicle which showed him as the registered keeper of the vehicle from 29 January 2020. Whilst I find that the national register of keepers is maintained primarily to identify vehicles and their keepers – to assist law enforcement and the collection of taxes and to facilitate improved road safety- and is not proof of legal ownership, the provision of the document accompanying the statement that the vehicle had been bought clearly purports to demonstrate that the vehicle was owned and being kept by him. This is contrary to the true situation. He gave evidence at Inquiry that he had never purchased the vehicle and that no money was paid to Mr Tahir Mahmood to purchase the vehicle. The minibus, in reality, never left the possession of Mr Mahmood. He did not, in reality, keep the vehicle (it was at the Mary Street address but that was also the address of his brother-in-law) or act as owner of the vehicle (it was insured and continued to be maintained and used by Mr Mahmood). I am drawn to conclude that the arrangement made with his relative Mr Mahmood was an artifice to mislead the Traffic Commissioner and that the communication of 31 January 2020 made by Mr Ahmed to the OTC was untrue and a deliberate attempt on his part to mislead.

I accept the witness statements of the two OTC officers concerning the evidence given by Mr Ahmed to them on 6 January 2022. I find these witnesses to be professional, objective, and impartial and whose evidence is drawn from not only their own recollections but from contemporaneous notes. At the time of that meeting the ANPR evidence had yet to be obtained. Mr Ahmed’s explanation for failing to disclose to them that he was not in fact the owner or keeper of minibus LF60 XHN as he had declared in January 2020, or its use by his brother-in-law in his business, was that he was ‘not asked’. I do not consider this to be a reasonable explanation as the Senior Team Leader had no knowledge of his wrongdoing and his failure to reveal the truth at this time was an omission that continued the pretence put in train by him in January 2020.

Senior Team Leader Daisy Towers then wrote to the Operator by letter on 13 January 2022 (at page 49 of the Operator’s Brief) referring to the meeting of 6 January 2022 including the following:

‘It is noted that during the meeting you confirmed that since the grant of the licence you have not used your Public Service Vehicle Operator Licence and that the vehicle you have access to has been parked up and is not in use..’

The Operator failed to respond to this statement with the full facts as to the vehicle’s ownership and use.

Mr Ahmed now states that he ceased the arrangement with Mr Mahmood with effect from 23 January 2022 after taking legal advice. The DVSA visits were made after such legal advice had been taken. These visits afforded further opportunities to the Operator to ‘come clean’ and reveal the full facts to the DVSA Officers at the time or in the written responses provided after each visit. He failed to do so.

Mr Ahmed has only now acknowledged and admitted the arrangements and that these were wrong and relies solely on his bare assertions that he failed to understand the seriousness of the arrangements and made no financial gain from these. His lawyer submits to me that her client should be viewed as an ‘unsophisticated taxi driver’ and his evidence assessed accordingly.

I do not find Mr Ahmed’s evidence as to a prior lack of understanding of the significance or seriousness of the arrangement with Mr Mahmood and of misleading the OTC and DVSA to be convincing or credible. I do not find him to be ‘unsophisticated’ for the purposes of operator licensing. He had completed an OLAT course in 2018 and then gained his transport manager CPC in passenger transport.in March 2021.

Further, the Upper Tribunal has provided that all operators are deemed to know the advice and guidance that is the public domain (MGM Haulage & Recycling Limited 2021/030). This will include guidance issued by DVSA and the contents of the Statutory Documents issued by the Senior Traffic Commissioner.

[REDACTED]

[REDACTED]

I have considered the positive features that I find in this case. I find that - * The Operator has no prior adverse compliance history as an operator, this is his first operator’s licence and his first Public Inquiry; * The Operator has demonstrated financial standing for the licence; * Since taking the advice of Ms Evans in January 2022 the Operator then sought to regularise the arrangements with Mr Mahmood and assures me that he ensured the disc issued under this licence was no longer made available to Mr Mahmood to use in his business, Skyline Taxis. This account is supported in part by the evidence produced that he declared vehicle LF60 XHN as off road to DVLA (Statement of Off-Road Notification or ‘SORN’) on 23 January 2022 and the DVSA VE found that the vehicle had a flat battery when he inspected it on 23 February 2022.; * Mr Ahmed belatedly, but finally, admitted his wrongdoing at the Public Inquiry; * Mr Ahmed has completed further training and taken transport consultancy advice as described above; * Mr Ahmed has taken legal advice from an experienced transport solicitor and appeared before me at this Public Inquiry. He also cooperated with the DVSA investigations undertaken by VE Neil King and TE Haymer, including the provision of his driver’s digital tachograph card, and participated in the OTC Senior Team Leader virtual meeting.

Balanced against this, I find the following material negative features:

• Insufficient or no systems and procedures in place to comply with operator licence requirements, including VOR records and vehicle tachograph unit downloads, which among matters prevented DVSA and the Traffic Commissioner from ascertaining the use of the minibus LF60 XHN between 29 January 2020 and the date of its sale in March 2022;
• The Operator failed to be forthcoming, open, and honest with the OTC and DVSA on several occasions continuing up to his responses to DVSA of 1 April 2022. Any attempt to deceive a traffic commissioner or DVSA officers is serious conduct that cannot be condoned;
• Mr Ahmed’s actions in lending the licence disc issued under this licence to his relative gave that relative an unfair commercial advantage through operating 3 PSV without the additional requirements of a standard national PSV operator’s licence.

I have considered the appropriate weight to be afforded to these various factors in the balance. I find that substantial weight is afforded to my negative findings of the repeated occasions during which the Operator failed to be open, forthcoming, and honest with DVSA and OTC as well as the lending of his disc to his brother-in-law knowing this was to be used in his business to his competitive advantage. This was not I find an isolated ‘mistake’ but a deliberate course of conduct that continued without disclosure to the DVSA or OTC of the true facts between 31 January 2020 until at least 1 April 2022, despite the various opportunities presented during correspondence and meetings with DVSA and OTC to ‘come clean’ and explain the true situation.

Integrity and transparency are fundamental features of the trustworthiness required to be of good repute for the purposes of operator licensing. In the decision on the appeal 2015/002 Shoretime Limited (later Leigh Rushworth Ltd, the Upper Tribunal concluded that if an individual carried on acting in a way he knew to be illegal, it is difficult to be confident that he would never adopt a similar approach again. I consider the principle also applies in the case of an individual being untruthful and then continuing to fail to be open, forthcoming, and wholly truthful with the OTC and/or DVSA continuing the pretence or ruse in question.

I give no material reduction in the negative weight attributed in the balance to the evidence of his repeated errors and omissions in the facts disclosed to DVSA and the OTC and the lending of the disc issued under this licence, by reason of the explanation that he ‘failed to understand this was so serious.’ It is clear from the Senior Traffic Commissioner’s Statutory Documents that both misleading the Traffic Commissioner and DVSA and loaning a disc are serious matters.

The ANPR evidence revealed Mr Ahmed’s lack of openness in the meeting with the OTC STL, and it was only after this was put to him and after the call to Public Inquiry that he finally admitted the truth to this Office. Truth so very late in the day, at the Inquiry, I find carries far less weight in the positive balance compared, for example, to an early, unprompted admission of fault by an operator at the first opportunity provided, with credible and full explanations and assurances provided for the wrongdoing.

I find that the combination of negative features of this case significantly outweigh the positive factors and I consider that the conduct is so serious that regulatory action against the licence must be considered.

Section 17(2) of the Act allows a traffic commissioner to direct that an operator’s licence be revoked, suspended, or curtailed on the grounds in section 17(3) of the Act. I find that grounds have been made out by my findings on the evidence before me that would entitle me to make a direction under section 17 (2).

I have considered the guidance given in the latest Senior Traffic Commissioner Statutory Document No. 10 on ‘The Principles of Decision Making and the Concept of Proportionality’. The legislation governing this jurisdiction exists to ensure the promotion of road safety and fair competition and traffic commissioners will have regard to the relevant decisions of the higher courts and the principle of proportionality in deciding what intervention is commensurate with the circumstances of each individual case. I consider this to be a ‘severe’ case for the purposes of Annex 4 of that Statutory Document., that is the Operator’s conduct falls into the category of:

Deliberate or reckless act(s) that compromised road safety and/or gave the operator a clear commercial advantage and/or the operator permitted driver offending and/or any attempt by the operator to conceal offences or failings.

The relevant starting point provided for considerations of regulatory action in such a case is:

• Revocation with detailed consideration of disqualification

• Revocation

• Suspension for an extended time period that materially affects the transport operation

• Significant indefinite curtailment that materially affects the transport operation.

I then pose myself the question suggested by the Transport Tribunal in its decision upon appeal 2009/225 Priority Freight Limited and Paul Williams, namely, is the operator someone I can trust to ensure future compliance, my conclusion is ‘No.’

I have then asked myself the question suggested by the Tribunal decision upon the Appeal 217/2002 Bryan Haulage Limited:

“. . . the question is not whether the conduct is so serious as to amount to a loss of repute but whether it is so serious as to require revocation. Put simply, the question becomes “is the conduct such that the operator ought to be put out of business?” (My emphasis).

I answer the Bryan Haulage question, as emphasised by me above, in the affirmative.

In cases of deception traffic commissioners are entitled to ask: would other operators who have heard of this ruse consider the perpetrator to be of good repute (Upper Tribunal decision in the appeal 1996/H46 Mark Anthony Browne trading as Brownes Transport, as approved in 2002/009 George Gollop and Direct Movement Services Ltd). I consider it more likely than not the answer would be ‘no’ on the facts and circumstances of this case.

I then, finally, determine that the Operator has lost his good repute for the purposes of operator licensing and that the public interest in maintaining the integrity of the operator licensing system requires me to revoke this licence, and that it is not disproportionate to do so in this particular case, balancing in my determination the Operator’s evidence that he is not operating and has effectively never commenced business requiring the operation of a vehicle under this licence, but also recognising that a loss of good repute would also affect his plans at this time to change his occupation from taxi driver to a full time transport manager and an operator of a small PSV business under a standard national licence using a third party driver, as considered in relation to the Application below.

In light of the unlawful use of the operator’s licence by Mr Mahmood, as enabled and permitted by Mr Ahmed, it was, reasonably, accepted in the representations made for the Operator that the restricted licence would be revoked.

Having revoked the Licence, I have then considered whether an order of disqualification is appropriate in this case against the Operator under Section 28 of the Transport Act 1985. In this case I do not find that the objectives of the system, the protection of the public and fairness to other operators require I take the additional step of making any orders of disqualification recognising that some positive steps have been taken since January 2022 to regularise the wrongdoing following legal and consultancy advice and the (belated) admissions made on the day of Inquiry.

I have ordered as in paragraph 1 above in relation to the Operator.

4.2 The Application

The onus is on the Applicant to satisfy me that he, Mr Mukhtar Ahmed, satisfies the fundamental requirement for holding a Standard National PSV Operator’s Licence, including the requirement to be of good repute – section 14ZA (2) (b) and schedule 3 of the Act. Section 14ZA(2)(b) of the Act, as amended, provides that the mandatory requirement to ‘be of good repute’ when applying for a standard PSV operator’s licence is to be determined “in accordance with paragraph 1 of Schedule 3 to the 1981 Act”. Article 6 of Regulation 1071/2009 also applies.

Despite the previous adverse compliance history leading to my revocation of his restricted PSV licence. Mr Ahmed seeks to persuade me to grant the application made by him for a Standard National operator’s licence to authorise the use of one vehicle. Although it was accepted that Mr Ahmed had not been fully open and honest concerning his ownership and the use of vehicle LF60 XHN and permitted the use of his disc in the vehicle whilst operated by Mr Mahmood/Skyline Taxis, it is put to me that Mr Ahmed did not appreciate the significance or importance of this until he took the legal advice in January 2022. It is submitted that this was a mistake and that as a young man of only 38 years old with no previous experience before this licence, and having learned lessons from this, he merits a ‘second chance’ to operate a single vehicle with appropriate undertakings in place to monitor and support his compliance.

It has been shown to me that since January 2022, Mr Ahmed has attended a number of courses and taken advice from a Transport Consultant. Mr Ahmed completed the Transport Manager CPC in passenger transport on 26 March 2021 and he completed a two-day Transport Manager CPC Refresher course on 7 and 8 April 2022. Appropriate systems and records are described to comply with licence undertakings, designed with transport consultancy support, and ongoing consultancy support is promised on a monthly basis with an independent audit to be completed after a period of 5 to 6 months’ operation.

If the application is granted, Mr Ahmed represents that he is able to obtain work in respect of the school runs through a third party, although that party is not named in the representation made.

The Operator’s licence system relies upon the open and accurate provision of truthful information and records to the Traffic Commissioner and the enforcement authorities at all times. It is essential that any operator can be trusted to comply with all of its licence obligations and to operate vehicles strictly and only within the terms of the law including the requirements of the Act. The matter of repute is accordingly central to the integrity and efficacy of the system for the licensing of all PSV operators.

This current application was made by the Applicant on 15 January 2022. The vehicle specified in the application was minibus LF60 XHN. I note that on 21 January 2022 the Central Licensing OTC (‘CLO’) wrote to Mr Ahmed, as part of the application process, raising questions on the application which included a request for a copy of the V5C ‘as proof of ownership for your vehicle’. The Applicant in his response email of 23 January 2022 provided the CLO with the V5C for minibus LF60 XHN. No statement was made to CLO by the Applicant at the time or subsequently, until this Inquiry, that he was not the owner of the vehicle or that it was no longer available to him when its actual owner Mr Tahir Mahmood sold it in early March 2022.

Having concluded the Applicant’s previous licence should be revoked for the reasons above and, in the context of this then also considered the matters addressed in paragraphs 77 to 82 above, I find that the Applicant has failed to discharge the burden of proof on him to satisfy me that, on the balance of probability, he is of the required good repute in this case at this time. I find no reasons to consider his good repute as the nominated transport manager for this application in any different way. Put simply the submissions, assurances and undertakings offered in support of the application do not overcome the loss of my trust in this individual at this time.

Having so found, I have I have ordered as in paragraphs 2 and 3 above, without determining if the other requirements of the Act are met, or not, for this application.

FIONA HARRINGTON, LL. B (Hons), Solicitor

Deputy Traffic Commissioner

for the North East of England

4 June 2022