Decision

Decision for R & J Transport PVT Limited and Transport Manager Mr Darren Coot

Published 24 March 2022

0.1 IN THE SOUTH-EASTERN & METROPOLITAN TRAFFIC AREA

1. R & J TRANSPORT PVT LIMITED OF2019075

2. TRANSPORT MANAGER – DARREN COOT

2.1 GOODS VEHICLES (LICENSING OF OPERATORS) ACT 1995

3. TRAFFIC COMMISSIONER’S WRITTEN DECISION

4. Background

The background set out below is a matter of record from the Public Inquiry bundle. Mr Jasbir Singh (‘Mr Singh’) was the Director of a previous licence held by R & J Transport PVT Limited - hereafter R & J - (OF1139186) when it was revoked on 12 November 2018 for failing to respond to a “loss of transport manager” letter. The current Licence was granted by way of an interim after a Public Inquiry on 12 March 2019. Mr Mason (Solicitor) represented Mr Singh at that hearing. Deputy Traffic Commissioner Marcia Davis decision included: “I am satisfied that the applicant wants to get things right but am concerned that he has failed to understand and appreciate his responsibility to get the standards to be complied with and to have the required skill and knowledge to not only manage the licence but the Transport Manager as well”. The interim was granted on 11 June 2019 after Mr Singh (i) attend a 2-day Transport Manager CPC Refresher; and (ii) appointed a second transport manager. A strong warning was given that if there was non-compliance during the interim Licence then full grant would not follow. Mr Mason agreed to reinforce this with his client outside the PI room.

On 22 October 2019 Mr Singh resigned as a director of Maximus Haulage Limited (OF1143223) leaving his cousin Mr Kulwinder Singh Sandhu as the sole Director. On 14 November 2019 Mr Singh was driving vehicle AY66TMV when encountered by DVSA. When asked by the Traffic Examiner, Mr Singh said he was working for ‘Maximus’. The vehicle was displaying a Maximus disc but was specified on R & J’s Licence. Mr Singh then said the vehicle had previously belonged to R & J. When the Traffic Examiner told Mr Singh that the sole purpose of the visit was to conduct checks on R & J Transport PVT Limited, Mr Singh did not mention that he was the sole Director and a transport manager for R & J. Instead, Mr Singh told DVSA that the ‘boss’ was enroute. On 21 November 2019 vehicle KY12LZK was stopped. The driver initially said that he worked for R & J but then changed this to say he worked for Maximus. The driver told DVSA that Maximus and R & J were one and the same and Mr Singh provided his work instructions day to day. The vehicle was displaying a Maximus vehicle disc, but the vehicle was specified on SSP Haulage Limited (a company from which Mr Singh resigned as director in October 2018) from 22 October 2019.

During the Traffic Examiner investigation Mr Singh admitted that although a nominated Transport Manager and Director he did not assign any time to the transport activities. Mr Navdeep Sandhu suggested he spent approximately 8 hours per week on the transport manager role. The Traffic Examiner concluded that Mr Singh remained heavily involved in Maximus as well as R & J albeit the arrangement between them was unclear and this was all impacting on R & J’s compliance.

A Vehicle Examiner conducted a maintenance investigation alongside the Traffic Examiner. The Maintenance Investigation Visit Report was marked unsatisfactory because PMIs were not fully completed, no brake test results recorded, the Operator was not using the specified maintenance contractor (instead relying on a mobile mechanic service) and there was no driver defect sheet auditing – more detail can be found at page 145, 146, 150 and 151 of the 2021 PI bundle. The Vehicle Examiner’s report concluded he was concerned by the catalogue of failings in all areas. The DVSA vehicle encounters on 14 November 2019 and 21 November 2019 and the subsequent Examiners’ Reports were referred to OTC. On 1 February 2020 Mr Darren Coot was nominated as Transport Manager. He is also the Transport Manager for Maximus Haulage Limited.

Whether or not to grant the full Licence was considered at a further Public Inquiry, which commenced on 27 August 2020 and reconvened on 9 October 2020. Mr Mason again represented Mr Singh. The Traffic Examiner was e mailed data in advance and noted some ongoing shortcomings: driver licence checks were erratic and driver cards were being downloaded beyond the 28-day statutory maximum. There is reference to time sheets for Mr Kulwinder Sandhu (Director of Maximus) working for R & J in July 2020 with shifts of 21 hours on two occasions. Mr Singh said Mr Sandhu was not working for R & J on these long days but could offer no more as Mr Singh admitted he did not read the infringement reports in any detail; nothing more than a skim read at best. That said the Traffic Examiner accepted that these aside it was an improved picture albeit not necessarily down to Mr Singh.

The Deputy Traffic Commissioner reviewed maintenance records at the Public Inquiry. The PMIs continued to show driver reportable defects with no corresponding driver defect sheet. Without wider explanation the audit trail indicated a ‘strong need’ for the driver walk round check system to be improved. Mr Singh suggested that all the PMI driver reportable defects were not there when the drivers’ started duty, but he could point to no evidence of any contemporaneous scrutiny. Mr Singh admitted that he was too busy to check drivers as they do their checks or even random gate checks. Mr Singh suggested that if drivers miss something they get a warning but as there was no checking it is unclear how that would come to light as there was no evidence PMIs or driver sheets are checked or audited. The Deputy Traffic Commissioner found Mr Singh’s unable to offer clear answers other than he should make more effort himself.

Mr Singh was asked about his current involvement with Maximus Haulage Limited on 9 October 2020. He initially stated that he had nothing to do with it after he resigned as director to focus on R & J. He then clarified that he did still drive for Maximus after his resignation. When asked who he was referring to as the R & J ‘boss’ on 19 November 2019, Mr Singh said he was referring to “Harvinder” as the boss of Maximus. This makes no sense as Harvinder Singh resigned as a director of Maximus and sold his shares in 2016 but was not explored any further, apparently being accepted as part of his wider communication challenges (see below).

Mr Mason’s submissions on behalf of the Operator said that Mr Singh ‘…accepted his failings and is determined to learn from his mistakes…’, indicating that most of the problems before March 2020 arose because he and the then second Transport Manager (Mr Navdeep Sandhu) were driving full time instead of devoting more time to their transport manager roles. It was averred that the appointment of Mr Coot (with Mr Singh’s subsequently resigning as transport manager) and a move away from driving had benefited compliance since February 2020 and that would continue. This did not fully account for the non-compliance because the records produced for the hearing post-dated Mr Coot’s involvement. However, Mr Coot was able to explain some of the Traffic Examiner issues. Mr Coot told the PI that further improvements were still a work in progress as it took some time to dissuade Mr Singh from driving (regular up to September 2020) but Mr Amrit Singh (a cousin of Mr Singh) had been a real help. The Deputy Traffic Commissioner gave a lot of weight to the involvement of Mr Amrit Singh (see page 158 of the bundle), including his transport background, recent CPC qualification and assisting Mr Singh who ‘..had some difficulties in communication in English…’. Further explanations and assurances included:

• A move away from driving with more focus on compliance.

• A move to using main dealers as opposed to independent garages including Welch’s (supported by the fact the Operator had already moved away from a mobile mechanic conducting PMIs at the yard with no facilities).

• Roller brake testing will be done properly.

• Mr Singh does now check infringements and driver defect sheets.

• Mr A Singh explained some more about the Kulwinder Sandhu’s offence (see para 8 above) and how they looked on the Clockwatcher system (although this does not account for Mr Singh’s own response at the hearing with the benefit of an interpreter).

• On 14 November 2019 the change in vehicle specifications was not straightforward because it cannot be done online on an interim Licence. I point out here that it is done by e mail with Leeds and Mr Singh’s own evidence to DVSA was he had not noticed the issue at all.

• More robust systems based on technology were or would shortly be in place across the board.

Taking all the above into account the Deputy Traffic Commissioner gave credit to Mr Singh’s changes after the DVSA findings in January 2020, in particular the appointment of Mr Coot and the intervention of Mr Amrit Singh. The technological changes would mean Mr Singh would be less dependent on linguistic skills and more on visual acuity. The decision includes:

“Whilst I found at times that he struggled to articulate what he wanted to convey and often missed the point of my question; I was nevertheless satisfied that it was not an attempt at obfuscation. It was in fact a demonstration of his difficulty with communication in its truest sense.”

The full Licence was granted from 2 November 2020 but suspended from the 24 December 2020 for 7 days. The presiding Deputy Traffic Commissioner set out her decision in full and some detail (28 pages) on 19 October 2020. The decision included an undertaking to ensure all maintenance providers were specified on the Licence and the VOL record kept updated. There was also a Statement of Intent that Mr Singh would not undertake driving responsibilities on this or any other Licence whilst managing the Licence of R & J Transport PVT Limited. In the very last paragraph, the Deputy Traffic Commissioner states “Mr Singh is reminded that this is the last opportunity to ensure that this Licence is managed to a standard of near perfection. Anything less will not do and result in a return to Public Inquiry where the Operator’s repute will be very much in question”.

Shortly thereafter the Operator lodged an application (16 November 2020) to increase the authorisation from 6 vehicles and 6 trailers to 11 vehicles and 8 trailers. The supporting bank statements called into question financial standing, the average only just meeting the existing authority. A more updated statement met the sum required for the increase. However, the caseworker noted large financial transactions, including with Maximus Haulage Ltd which, without wider explanation, were indicative of more than arms-length trading. Separately, two companies (Chief Haulage Ltd and L2L Haulage Ltd) came to my attention. Some of the evidence indicated that the former’s Licence and latter’s application may have been “fronts” for Mr Singh to operate more vehicles whilst the application (for full grant) of R & J Transport PVT Limited was ongoing. The evidence appeared to go behind responses at the 2020 Public Inquiry. A Propose to Revoke letter was issued on 15 January 2021 and responded to the same day. After subsequent exchanges, I retained concerns that the Company may have operated illegally prior to the grant of its full Licence; potential ongoing links with Maximus Haulage, how this may impact on compliance with the Licence terms, and unsatisfactory financial standing, I decided to call the Operator and Transport Manager to Public Inquiry. This decision was notified to the Operator on 23 April 2021, including the fact that the request for an interim increase in authorisation was refused. The formal call up letters issued on 27 May 2021.

5. Hearings

On 23 April 2021 the Central Licensing Office in Leeds notified the Operator that I had called it to Public Inquiry and that there would be no interim on the variation application in the meantime. A copy of the call-in letter was sent by email on 27 May 2021 and the call-in letter and public inquiry bundle were sent to the Operator and Transport Manager by tracked post the same day. The Public Inquiry commenced on 12 July 2021 with Mr Singh and Mr Coot in attendance, represented by Paul Mason Solicitor. A Punjabi interpreter was also provided to assist Mr Singh. Mr Singh gave evidence on his own behalf and through Mr Mason for nearly 2 hours on the financial records, invoicing, operating links with Maximus Haulage, driver agencies and Bluestar Haulage Limited. At the end of the session the evidence was at best confusing, with an overriding impression of reticence to answer direct questions. The case was adjourned part heard with Case Management Directions to be complied with before we reconvened on 23 August 2021 to try and overcome the challenges of that first hearing. Those Case Management Directions included the requirement for Witness Statement(s) to cover the specific areas dealt with on 12 July 2021, annexing documentary evidence in support. The missing financial standing bank statements were also to be produced.

On Thursday 19 August 2021 some documentation was received from Mr Mason. Mr Mason advised that more was awaited from the Operator. Mr Mason did not want to finalise the Witness Statement until he had seen everything, but he would do so the following day. On 19 August 2021 my clerk notified that the financial calculator demonstrated financial standing was not met and that the fuel card invoices were not readable. On Friday 20 August at 13:05 Mr Mason notified my clerk that he had been advised by Mr Singh on the evening of 19 August that he was suffering from some COVID symptoms. Mr Singh was advised by Mr Mason to get a PCR test and Mr Mason also organised his own PCR test on 20 August 2021 which was fortunately clear. What happened in relation to Mr Singh is less straight forward, but I granted a short adjournment until the 6 September 2021 for Mr Singh to produce evidence of his PCR test and for the case to reconvene.

On 6 September 2021 Mr Coot and Mr Mason attended but Mr Singh did not. It was stated that Mr Singh was not well enough to attend even virtually but there was no evidence as such. A copy of my decision on 6 September 2021 is attached, marked Annex A. In short, I suspended the Licence from 23:45 on Tuesday 7 September 2021 until the reconvened hearing or an earlier date agreed by me in writing. I issued a Section 26(6) direction stating that the vehicles should not be used or specified on any other Licence during the period of suspension. The suspension was not lifted until the 23 September 2021 at 13:11 because it took that long for the Operator to lodge sufficient extant documentation. At the same time, I directed that at least 7 days before the reconvened hearing the Operator lodge evidence that the vehicles did not move during the period of suspension.

On 27 September 2021 Mr Coot notified my office that without his knowledge or consent (being on holiday from 11-20 September inclusive) the specified vehicles were operated during the suspension period. On 1 October 2021, I directed the Operator/Transport Manager to send the digital data for the whole period by e mail to DVSA “…by return”. This never happened. Mr Coot was unable to access the raw data but did send the print outs he had taken before the notification on 27/9/21. Mr Coot’s evidence is that he was told by Clockwatcher that the Director had cancelled his access. The Public Inquiry Hearing concluded on 4 November 2021, and I gave Mr Mason until 12 November 2021 to lodge written closing. The complexities of the case, Mr Singh’s approach to the hearings and evidence, and a period of ill health have meant this take decision has taken longer to produce that usual. Considering the frank nature of Mr Mason’s closing submissions, it is unlikely any delay has prejudiced Mr Singh.

6. Documents and Evidence

Prior to preparing this decision I have reviewed the following: -

a. Original Public Inquiry Brief for the hearing on 12 July 2021;

b. Documents received and communications with the parties and Mr Mason between 12 July 2021 and 6 September 2021;

c. My decision dated 6 September 2021;

d. Documentation received and communications with the parties between 7 September 2021 and 4 November 2021;

e. Written closing submissions from Paul Mason;

f. Written closing submissions from Darren Coot Transport Manager;

g. South Bucks District Council and another V Porter (FC) (2004) UKHL33, English v Emery Reimbold & Strick Ltd [2002 EWCA Civ 605 and Bradley Fold Travel Limited & Peter Wright v Secretary of State for Transport [2010] EWCA Civ 695 in relation to written decisions generally;

h. Upper Tribunal Decisions and other guidance I consider relevant to this determination as listed elsewhere in this Decision; and

i. The Senior Traffic Commissioner’s Statutory Guidance and Statutory Directions (‘SGSD) current versions.

7. Issues

The challenges in demonstrating financial standing are admitted. By 4 November 2021, there is a shortfall by one vehicle. It continually failed to demonstrate sufficient financial standing for the variation application. If finances were a single issue, then a short Period Of Grace would have been allowed for the limited shortfall for the existing authority. Accordingly, I do not make a formal adverse finding, but a marker is laid for future applications, if any. Mr Singh has wasted a great deal of OTC resource because of the continual failings – financial standing is an ongoing obligation. Mr Singh and Mr Coot acknowledge that there remain deficiencies in the systems to ensure that the undertakings on the Licence are complied with for maintenance and drivers’ hours, tachographs, and Working Time Directive. Mr Singh has admitted continuing to operate his vehicles during the period of suspension from 23.45 on 7 September 2021 to 23 September 2021. Mr Singh denies any licence borrowing or operating more vehicles than authorised whether in relation to Maximus Haulage Ltd, L2L Haulage Ltd or Chief Haulage Ltd. It is for me to determine what action, if any, to take on the existing Licence and if the Licence continues whether to grant the variation application in full or in part. Mr Coot’s good repute as Transport Manager also falls to be considered.

8. Approach

From March 2020 Operators have been challenged, along with the rest of the nation, on coping with the unique circumstances of Covid-19. On 17 March 2020, a full week before the national lockdown the Senior Traffic Commissioner issued an emergency SGSD setting out detailed legal and practical advice for Commissioners, Operators, Transport Managers, and those who support them. It includes the following:

What is physically possible may change during the course of the outbreak, but the Office of the Traffic Commissioner has issued additional guidance to operators throughout the course of the restrictions to date: https://www.gov.uk/government/publications/advice-heavy-goods-and-public-service-vehicle-operators-covid-19 The Senior Traffic Commissioners directs that this must now form part of the decision-making process. In considering the positive and negative aspects of an operator’s approach during the lockdown and subsequent restrictions, traffic commissioners may also have regard to:

• the employment of effective management based on sound risk analysis for instance in the management of maintenance;

• a risk-based approach to the testing of vehicles in prioritising the inspection of older and/or historically problematic vehicles in the transition back to business as usual…

These should be supported by evidence.

Operators and Transport Managers have deemed knowledge of advice and guidance in the public domain, 2012/030 MGN Haulage and Recycling Ltd.

There is clear and consistent case law from the Upper Tribunal that a Traffic Commissioner is entitled to treat the conduct of a sole director effectively as the conduct of the Limited Company and good repute or fitness is determined accordingly. Such an approach has received approval from the appellate tribunal on several occasions, such as 2013/008 Vision Travel International Limited and T2013/61 Alan Michael Knight. As well as the operator licensing obligations, a company director must exercise his or her statutory duties of demonstrating independent judgement, skill, care, and diligence, as per sections 173 and 174 Companies Act 2006.

‘Fronting’ was helpfully defined in the case of 2012/071 Silvertree Transport Limited, where the Upper Tribunal stated: ‘.. ‘fronting’ occurs when appearances suggest that a vehicle, (or fleet), is being operated by the holder of an operator’s licence when the reality is that it is being operated by an entity, (i.e. an individual, partnership or company), which does not hold an operator’s licence and the manner in which the vehicle is being operated requires, if the operation is to be lawful, that the real operator holds an operator’s licence.

I have set out the background in some detail above as it is relevant to the current position. I have not set out all the evidence as it is a matter of record in the papers and by way of transcript. I have referred to material evidence relevant to my findings.

9. Consideration and Findings

The starting point in this case must be the decision of Deputy Traffic Commissioner Marcia Davis in October 2020. The Deputy Traffic Commissioner gave Mr Singh a last chance to ensure that the Licence was managed to “…a standard of near perfection”. Transport Manager Mr Coot was fully aware of the Deputy Traffic Commissioner’s disquiet and requirements for future compliance, having been present and given evidence at the October 2020 hearings. The Deputy Traffic Commissioner noted Mr Singh’s admission of working with Maximus after he resigned as a director (despite averring he would fully concentrate on R & J) because he had continued to drive for Maximus. The Deputy Traffic Commissioner’s decision sets out the undertakings and statement of intent (no driving for anyone, not even R & J) as a foundation for a refreshed approach to compliance. Mr Singh attended a virtual New Operator Seminar on the 3 December 2020 and page 148 of the Public Inquiry bundle sets out training previously undertaken before the October 2020 Public Inquiry. My decision requires consideration of several areas, and each are dealt with separately below.

It was originally the Operator’s intention to provide a witness statement from Mr Sandhu – the solicitor’s e mail to my office dated 19 August 2021 (for the hearing on 23 August 2021) includes: ‘I had hoped to supply statements from Mr Singh and the director of Maximus Haulage Ltd on Monday but they have had difficulty in locating the various documents which have been asked of them, including those requested by the Traffic Commissioner at the last hearing. I have been loath to finalise the statements unless I know whether these documents will be available. Either way, I will send these over tomorrow.’ Mr Mason wrote on to my office on 3 September 2021: “Notwithstanding my earlier optimism, no further documents have been provided to me despite chasing for them, nor have I had either statement returned to me or their contents confirmed as accurate, which prevents me from forwarding them to you”. No statement or additional documents from Mr Sandhu were submitted by the Operator prior to the hearing commencing on 4 November 2021.

From observing Mr Singh and listening to his evidence in July 2021 and November 2021 I did not find Mr Singh a credible or compelling witness. Mr Singh’s demeanour was guarded, and he became unsettled whenever I asked for corroboration and/or detail. Where there is a conflict of evidence with Mr Coote, I prefer that of Mr Coote who was open and straightforward in his evidence. Where Mr Singh’s oral evidence conflicts with documents contemporaneous to the issue, I have given the documents more weight. The reasons will become clear below.

9.1 Has there be a proper separation from Maximus Haulage Limited?

For the benefit of the wider audience of this decision, Mr Singh, and Mr Kulvinder Singh Sandhu (sole director of Maximus Haulage Limited) are cousins. Mr Singh describes the relationship as more akin to brothers. Despite the findings of the Deputy Traffic Commissioner in October 2020, Mr Singh has subsequently repeated his assertion that after he resigned from Maximus as a Director, he had no further role with that entity. I fail to understand why this assertion is repeated (see page 116) after the Deputy Traffic Commissioner agreed to draw a line under the encounter in November 2019 with AY66TMV (see page 2 of the Public Inquiry bundle). After the 2020 Public Inquiry Mr Singh knew that all future arrangements with Maximus Haulage/Kulvinder Sandhu had to be transparent, arms-length and beyond question.

It took a great deal of time before and during the two hearings for Mr Singh to try and demonstrate how the R & J invoices produced tallied with payments from Maximus Haulage. The whole afternoon on 12 July 2021 was spent trying to get a straightforward answer just on the bank statement entries and R & J invoices to Maximus. Considering the Deputy Traffic Commissioner decision this should not have been anything other than straight forward. Even if the work was undertaken prior to the 2020 hearing, the payments/ record keeping from that point on should have been robust. My case management directions and questions posed on 12 July 2021 were designed to receive evidence of proper arms-length sub-contracting i.e effective separation. Mr Singh’s evidence, written and oral, lacked detail and clarity to a significant degree.

Mr Singh told the Inquiry that Maximus and R & J did not know whether it was a Maximus or R & J vehicle/driver was doing each job as the day-to-day control came from Maximus’s client. Maximus would tell R & J how many additional vehicles it needed on any given day and that was it. R & J agreed a day rate for a vehicle/driver. The invoices to Maximus just say ‘sub contracting work for [a given month]’ – not even the number of days or number of vehicles. There are two invoices for identical amounts for work stated to be undertaken in August 2020 (see pages 91 and 92 of the PI bundle) with two different invoice numbers. In his witness statement dated 7 September 2021 and on 4 November 2021, Mr Singh says this is a ‘mistake’ and he forgot to change the month in the template for the November dated invoice (RJT0014). This contradicts his evidence on point on 12 July 2021, namely that it would be a reminder invoice for monies not yet received. It is impossible to tell if either is a version of the truth as the Maximus online transfers to R & J did not include any references. Mr Singh also contradicted himself on the inclusion of ‘Driver Expenses’ on those same invoices. In July 2021 he said it would cover if the drivers were asked to undertake additional work such as an additional load or lorry washing, and this would be agreed in advance. In his witness statement dated 7 September 2021 and on 4 November 2021 Mr Singh said it was to cover the drivers costs of getting to site in their own vehicles or accommodation costs. There was meant to be a ‘balancing exercise’ at some point for actual work done when Maximus received the ‘tickets’ from the main contractor but this reconciliation never happened. R & J never saw the ‘tickets. My case management directions at the end of 12 July 2021 required the witness statement to be accompanied by full supporting documentary evidence. The ‘tickets’ were only received during evidence on 4 November 2021. I excluded them as I would not have time to properly analyse them in advance and to include them risked the hearing not concluding that day after an already lengthy adjournment. The arrangement as described by Mr Singh left control of the R & J drivers with Maximus and thereby the main contractor. When I pointed out that such an arrangement was unacceptable in terms of effective management and control Mr Singh tried to amend the evidence to suggest far greater day to day direction of the drivers, but the claw back was not convincing.

In addition to payments linked to invoices there are transfers of sums between R & J referring to loans etc. The explanation in correspondence and Mr Singh’s oral evidence of ‘mistakes’ being made on transfers is again questionable. In his e mail dated 11 July 2021 Mr Sandhu says he meant to make a payment of £1800 for insurance and mistakenly sent £18000 to R & J. This ties in with Mr Singh’s correspondence of 11 February 2021. I fail to understand how a sum of £18,000 can be mistakenly transferred. £10,000 was sent separately the same day. It adds to the credibility challenge when the reference on the repayment to Maximus on 11 November 2020 is ‘Borrow’ (‘Borrow’ is the reference Mr Singh uses when he means loan on his own capital payments in and out of the same account). The reference is said by Mr Singh to be another of his ‘mistakes’. These monies were going in at the time R & J was making the application to increase authorisation but did not have the finances to support it. In my judgement it is more likely than not that this was lending to artificially boost R & J’s financial standing and not ‘mistakes’.

The overall impression remains one of Maximus and R & J continuing to be run as connected companies in a fluid manner rather than separate legal entities, as required to meet operator licensing obligations in the last months of 2020. This demonstrates that the assurances given to the Deputy Traffic Commissioner in October 2020 were founded on sand. I am told that all work, sub-contracting or at all, ceased at the end of 2020 but I am not able to simply take Mr Singh’s word for that considering my overall assessment of his evidence across two hearings.

9.2 Has the Operator used more vehicles than authorised whether own account; use of Maximus Licence; fronting by Chief Haulage Ltd and/or attempted fronting via L2L application?

I turn now to Mr Singh’s current evidence in relation to vehicle KY12LZK (see paragraph 5 above for the evidence relating to a stop on 21 November 2019 in October 2020). Mr Sandhu sent an e mail to Mr Coot, then forwarded to Mr Mason on 12 July 2021 simply saying the vehicle was parked up after purchase until the MQP Leicester franchise was resolved but there is no timescale. Mr Singh states that that vehicle always belonged to Maximus, and it was never used or operated by him in any guise except for a few weeks before he resigned. The vehicle was effectively never really anything to do with him. Mr Singh avers that Mr Sandhu acquired the vehicle for Maximus even though not a director or shareholder on 1 March 2019 with a view to obtaining a franchise at MQP Leicester. The latter did not materialise ‘….and the vehicle was unused until it was specified on the Maximus Licence on 16 September 2019’ (see Mr Singh’s witness statement dated 7 September 2021). Mr Singh’s name and home address on the V5 from 1 March 2019. The witness statement suggests Mr Sandhu did that because Mr Singh was the director. Mr Singh says Mr Sandhu sold the vehicle to SSP Haulage Limited on 22 October 2019 and repeated that it was never anything to do with him. The DVLA record confirms that the registered keeper did not change from Mr Singh/Maximus until a disposal date of 1 July 2020 (see page 114 of the PI bundle). The V5 is not proof of ownership but it is a strong indicator and Operators are fully aware of the need for a nexus with vehicles operated. The vehicle was never registered to SSP Haulage Limited albeit the vehicle was specified on its Licence between 22 October 2019 and 13 January 2020. On 1 August 2020 Chief Haulage Limited became the registered keeper.

To ensure accuracy, before concluding this decision I asked for the actual specification dates for KY12 LZK on the Maximus Licence. The VOL record shows that 16 September 2019 is the last date it was specified on the Licence, but it was not the first time. In April 2019 Maximus was granted an interim increased authority to 6 vehicles and on 29 April 2019 vehicle KY12 LZK was added to the interim Licence. The terms of the interim were for a financial review within 6 months to ensure financial standing was still met for the increase before full grant. The review demonstrated sufficient only for 4 vehicles, the original authorisation. In September 2019 the interim was revoked, and the variation application refused. The Operator had to confirm which vehicles were to remain on the Licence for the new reduced authority. By e mail dated 12 September 2019 the Operator provided the list of 4 vehicles to Licensing, including KY12LZK. The October 2020 PI referred to the vehicle being added on 16 September 2019, but it was in fact a technical exercise, having been authorised under the Licence since 29 April 2019. That vehicle was only previously added on the interim and therefore its prior specification is not longer shown on the Vehicle History tab but is shown on the VOL Change History tab. Maximus effectively confirmed that the vehicle was still needed on 16 September 2019 even with a reduced authorisation rather than it only starting to be used in September 2019. This is relevant because it provides additional context - Mr Singh was the sole director throughout the period of specification and it was use over many months not 3-4 weeks. Further the vehicle was removed on 9 October 2019, when Mr Singh was still a director. The uncorroborated sale from Maximus to SSP is said to be same day as Mr Singh resigns. It is also the date the vehicle was added to the SSP Licence. This undermines Mr Singh’s evidence that the vehicle was never anything to do with him.

It is in this context I now review the evidence in relation to who was operating KY12LZK on 21 November 2019 and thereafter. In November R & J only had an interim Licence, having been given an opportunity to demonstrate it could be trusted with a full Licence. A check of the VOL record confirms that R & J did in fact have a margin at this point which is a positive indicator that it was not the de facto Operator on 21 November 2019. The driver on that date made no mention of SSP Haulage Limited. He originally said that he worked for R & J and then changed it to Maximus and then said they were one and the same and he got his day-to-day instructions from Mr Singh. Mr Singh did not cut his ties with Maximus after resigning as a director. The vehicle then features in relation to Chief Haulage Ltd and L2L. The vehicle was added to Chief Haulage on 25 February 2020. On 1 October 2020 Manjit Singh, who regularly drives for R & J becomes a director at Companies House, but the Licence was revoked on 29 October 2020 for failing to nominate a new Transport Manager by the deadline. It follows Mr Singh/Maximus was the registered keeper for most of the SSP and Chief Haulage operational period. On 16 November 2020 R & J applies to increase authorisation to 11 vehicles and 8 trailers. On 12 January 2021 I refused an application for a Licence by L2L Haulage Limited. The director was Mr Amardeep Singh, a former Transport Manager (in name only) for Chief Haulage Limited. His evidence was Chief Haulage was a ‘front’ for Mr Singh who was the actual owner of Chief Haulage and the vehicle specified on the Licence, which brings us back to the keeper check. Mr Singh suggests that he has been mistaken for the former director or R & J, Mr Jagjit Singh but offers no explanation as to why that might be.

I have formal records which do not tie in with oral evidence leaving an opaque picture of what this vehicle has been doing since 2019. I refused the L2L application because I found Mr Amardeep Singh completely untrustworthy. At the same time Mr Singh is also not credible or compelling. I accept that there is no direct evidence that R & J was lent a Maximus vehicle. I remind myself that the more serious the allegation the more cogent the evidence must be, as per Re H & R (Minors) CA1994. ‘Fronting’/unlawful operation is a very serious matter which on its own can justify revocation. On balance I do not make an adverse finding against Mr Singh/R & J on this point. However, it remains an example of how Mr Singh’s evidence and arrangements remained less than straightforward and transparent. This leads into his links with Bluestar Haulage Limited.

9.3 Use of the Bluestar Haulage Limited financial accounts for R & J and driver status.

Bluestar was incorporated in May 2019 with Mr Sandhu as Director and Mr Singh as shareholder. Mr Singh remains the PSC but he was also added as a Director in May 2020. In his Witness Statement Mr Singh says that the original idea was to start a van-based delivery service and Mr Sandhu did most of the groundwork. In part due to national lockdown the business was put on hold. Despite my questions it remains unclear as to why Mr Singh therefore also became a Director in May 2020. The Company Accounts to year end 31 May 2020 confirm no trading. I refer to the evidence set out in paragraph 15 above. By the end of evidence on 4 November 2021 there was some clarity, albeit not necessarily helpful to the Operator. Mr Singh failed to notify the Office of the Traffic Commissioner that the bank had closed its accounts unilaterally or was threatening to do so. It failed to do so despite the Senior Traffic Commissioner’s Emergency Statutory Document referred to at paragraph 21 above, which stressed the importance of notifying such issues. Mr Singh said in his Witness Statement that in the “early part” of 2021 the existing bank stopped the bank account for no reason and then subsequently reopened it. There is no evidence that this occurred or the period where there were difficulties. I am told that several direct debits were stopped including payments for fuel card services. Mr Singh confirms that from early March 2021 until the end of May 2021 he was using fuel cards obtained by Bluestar Haulage Ltd, apparently Bluestar having applied for the cards at some point in anticipation of operating. In his Witness Statement Mr Singh states that whenever Bluestar Haulage paid the fuel card bill there was then a matching invoice for R&J to reimburse it. Mr Singh admitted that it was not only fuel but also drivers that were paid by Bluestar Haulage Ltd for a period. Bluestar would then invoice R&J for “driver services”.

There are invoices between Bluestar and R&J which relate to fuel and driver services but that is literally all they say. There is no reference to which driver and for which period, it is just monies passing between the two. It was possible to correlate the fuel invoices but the evidence with regards to the drivers remains opaque. There is no audit trail whatsoever to determine whether drivers truly are self-employed and free to work elsewhere or whether they should be employed. Mr Singh stated that the drivers refused to become PAYE and so he has simply continued to use them as before. However, he has done so without any apparent system to ensure the relevant operator licensing requirements set out in 2019/054 Bridgestep Limited are not impugned. Further, the use of and need for drivers is another area where Mr Singh’s evidence was fluid. When answering questions on financial standing Mr Singh explained that R&J had struggled to show sufficient evidence for the variation application over a long period from November 2020 because of the trading climate. Mr Singh told me that all the vehicles were not always out; there wasn’t always sufficient work and some of the vehicles might be parked up - yet at the same time he wanted to increase the fleet by 50%. When the topic was the impact of regulatory action Mr Singh said that a curtailment reducing business capacity by 50% would not allow him to reduce operations accordingly whilst he sought work elsewhere but would put him out of business.

Mr Singh refers to the Company having an account with online banking provider Tide but says that it was not active at that time. That time appears to be again between early March and the end of May. The bank statements for Tide corroborate this in that there is a balance as at the end of June of £0. The Tide account is used for a period but according to Mr Singh by this time the issues with Lloyds had been resolved. The Lloyds bank statements produced in advance of the hearing on 12 July 2021 or after show no evidence that the account was closed and reopened or that there was an interruption in banking services. Further there is evidence of Bluestar being paid for fuel services and R&J paying fuel card services direct. By way of example on 7 March 2021 R&J paid Bluestar £4,000 with a reference “fuel service”. On 8 March 2021 R&J paid direct to the fuel card company £5,008.88. On 9 March 2021 there is a payment of £5,000 direct to fuel card services. This pattern continues. Similarly in March 2021 drivers as individuals and agencies are being paid direct from the R & J Lloyds account. By way of example GR Driving on the 8 March 2021, AP Cox the same day and also Freight Europe Ltd. On the 10 March 2021 R&J is also paying Bluestar Haulage for “driver service”. Again, this pattern continues. The April statements also have a conundrum of R&J ostensibly paying Bluestar Haulage for “driver service” of £10,205 but this being returned the same day by Bluestar as “borrow returned”. Ostensibly in Mr Singh’s language return of a loan. On the same day the driver agency is also paid direct in the sum of £5,676.

The only evidence of any dispute linked to the Lloyds account is the refund of some direct transfers on the 2, 3, 8, 10 and 11 March. However, there is no other business interruption and there is nothing to suggest that it is a dispute with Lloyds. In any event the ongoing payment into and out of the Lloyds account on a daily basis suggests that the more likely explanation was that it suited Mr Singh for his own business purposes to be using the Bluestar account in tandem with R&J for matters which were only known to him, possibly to build up a credit profile for Bluestar. Mr Singh failed to heed the warning of needing to separate things out from Maximus. Mr Singh says that he stopped subcontracting with Maximus. That may or may not be but instead he started mixing R&J up with another joint enterprise with his cousin, namely Bluestar. This is evidenced by one of the documents he produced, albeit barely legible (and failing to produce a better copy) which refers to a fuel bill for a vehicle which is on the Maximus licence not the R&J licence. Mr Singh said that R & J’s use of Bluestar finances was only intended to be a short-term solution and didn’t appreciate that this may have an impact on the Licence despite the clear references about ‘control’ in Stat Doc. 1, 3 and 7 – put down by Mr Singh as another ‘mistake’.

9.4 Failure to co-operate and assist the tribunal; including producing such documentation as required, when required or at all.

Operators must produce to a Traffic Commissioner such information or documentation required upon reasonable notice. Compliance is an ongoing obligation. The Appellate case of 2010/056 Instant Freight includes: “The Tribunal has stated on many occasions that operator’s licensing depends on trust. One important aspect of that trust is that the Traffic Commissioner must be able to rely on an operator having in place: … (b) a system which ensures that correspondence is fully answered, within any time limit which has been set, or else within a reasonable time and that if documents are requested that they are sent.”

An operator’s obligation to co-operate and engage positively with a Traffic commissioner is a long-standing principle of operator licencing, see for example 2010/064 JWF (UK) Limited.

I make the following adverse findings:

a. The bank statements produced prior to the hearing on 12 July 2021 were incomplete. I declined to make a finding whether financial standing met at the first hearing as a result.

b. Late compliance with the directions issued on 12 July 2021; the e mail trail demonstrates how drawn out this was.

c. The missing bank statements are subsequently received but still show a shortfall despite the patient assistance of OTC Leeds and Eastbourne over many months.

d. Failure to produce evidence of an overdraft and the terms of that overdraft, e.g. see pages 76, 85 and 89 of the Public Inquiry bundle. As per SGSD No.2 on financial standing the onus is on the Operator to adduce evidence and not make mere statements of availability.

e. Mr Singh failed to produce to the Traffic Examiner any of the data required for the Public Inquiry covering the suspension period.

f. Mr Singh did not prepare for the hearing on 4 November 2021. He did not even pre read his witness statement dated 7 September 2021. The overall impression was that he signed the statement that day with the sole purpose of getting the suspension lifted.

9.5 The undertaking to have systems in place to ensure that vehicles are roadworthy.

Since the 2020 Public Inquiry the Operator had an immediate prohibition issued to a trailer on 21 April 2021 for the condition of its tyres. The driver also received a graduated fixed penalty of £100 for an overloading offence. Prior to the Public Inquiry in July 2021, the Operator and Transport Manager were required to provide Preventative Maintenance Inspections (PMIs) for the previous six months for two vehicles together with the relevant driver defect sheets (defects only), invoices for work undertaken and the wheel removal/torque register.

I looked at the records for vehicle SJ12RWN to look at compliance during the hearing. SJ12RWN had a PMI undertaken by Welch’s on 5 January 2021. There are driver reportable items recorded on the PMI sheet, including wipers and headlights. No driver defect sheet is produced indicating that the driver did not notice. The section in relation to brake testing is completely blank. On 8 February 2021 the vehicle has a PMI at the end of a duty day. There are two driver defect sheets, the first one is “nil” at the start and then there is another “during shift”. There is no driver name or signature, simply a reference to take the vehicle to Welch’s in relation to a tyre. There is no subsequent evidence in relation to torque or retorque. There is a roller brake test on the 23 February 2021 but it is not laden. On the PMI Mr Coot has made a handwritten note saying that he has spoken to Mr Singh that the roller brake test must be laden. However, there is no reference to the fact that the roller brake test must also be in the same ISO week. Even more of a concern is the fact that the vehicle was not returned for a laden roller brake test. The vehicle was simply left in service despite having had an inadequate brake test.

The PMI dated 1 April 2021 states “tyre low tread and cuts” with the rectification “customer to replace”. The linked driver defect sheet refers to replacing a lamp but there is no reference to the tyres. The PMI is written on but there is no signature. The roller brake test results are dubious and appear to be added after the manager has signed them off. There is a tyre invoice but no evidence of retorque. On the 12 May 2021 the PMI refers to tyre defects and indicator issues but there is no linked driver defect sheet indicating that these defects were picked up. The roller brake test is inadequate as it is a pass on lock allowance only on the service and there is a significant imbalance. Again, tyres are changed but there is no evidence of retorque. Two other vehicles had trye invoices but none of them had a retorque audit trail. Mr Coot describes a system of wheel nuts retorqued weekly and after 30kms if a wheel removed in his covering e mail with the statutory records dated 5 July 2021 but acknowledges that there are no records. He does say that a retorque record had now been implemented but no evidence was produced. Further Mr Coot is not around to satisfy himself this work has been done on every occasion prior to that new register.

In summary, the documentation produced to Public Inquiry indicates significant basic failings in the maintenance systems. The maintenance contractor is not undertaking proper brake testing (but I am unclear on what direction it has been given by the Operator). The PMIs indicate that drivers are not undertaking effective walk around checks; tyres are being changed with no evidence of torque or retorque and auditing is ineffective. I was told that gate checks and proper roller brake testing are now being done but no evidence was produced. It is inevitable that I make a formal finding of breach of the undertaking in relation to keeping vehicles and trailers in a fit and serviceable condition and effective defect reporting by drivers. It is fortunate that no actual incident has occurred.

9.6 Failure to meet the undertakings with regards to drivers’ hours, Working Time Directive and tachograph

The Operator produced evidence of the current arrangements prior to the hearing on 12 July 2021. The evidence demonstrated that Mr Coot appeared to have good systems in place generally. However, the Operator only employs one full time driver, the rest are agency. As part of my case management discussions at the end of 12 July 2021 I said the witness statement and additional evidence should include and analysis of whether any of the agency drivers should be on PAYE. There is no mention in the witness statement and the additional evidence is merely invoices from a couple of agencies referring to ‘Driving Services’ with no mention of individual drivers and days of work. They only cover the period at the end of 2020 and nothing more recent. This is where the system for this undertaking falls in several respects:

• The Operator uses a regular pool of ‘trusted’ agency drivers but there is no attempt to monitor whether the use is such that any of the individuals should be employed (see paragraph 38 above).

• The agencies used are not certified by any recognised voluntary initiatives (e.g Driver Agency Excellence managed by Logistics UK and the REC Code of Professional Practice). This Operator ‘relies’ on the agency but there is no formal contract, and it does not audit them. The Operator does not check driver declarations that an individual is fit to drive by the driver’s digi card to see when the last duty finished prior to handing over the keys. This is a careless approach to risk management.

• The Operator places ‘trust’ in the agency. I see no good reason for this trust. It defies good health & safety practice. Further, one agency used is Overseas Distribution Limited with director Jagjit Singh – the same individual who allegedly sold him R & J without mentioning the ongoing DVSA investigation in 2018.

The failure to provide the raw data to DVSA for the suspension period also undermines the favourable impression presented for 12 July 2021. If data is not disclosed when it suits the Director, then there is always the possibility of mischief. By failing to provide the data I was denied the opportunity to obtain an independent assessment of the full extent of the unlawful operation in September 2021.

Considering the above it is inevitable that I make a formal finding of a breach of the following undertakings:

• The laws relating to driving and operation of vehicles are used under this licence are observed; and

• The rules on drivers’ hours and tachographs are observed and proper records kept, and that these are made available on request.

9.7 Operating during the period of suspension in September 2021.

On 7 September 2021 at 16:55 the PI caseworker received an email from Mr Mason attaching a signed Witness Statement from Mr Singh dated 7 September 2021 and five WhatsApp screen images from Mr Singh’s phone. At the conclusion of his email Mr Mason states: “I am still waiting on the remaining documents referred to at the hearing on 12 July and those documents referred to in the statement itself, which I will forward when received by me. Whilst it is accepted this is not all the material sought by the Traffic Commissioner, I would be grateful if it could be forwarded to her and the decision made as to whether the suspension imposed yesterday could be lifted, pending the relisted hearing date.” After considering the said attachments I issued the following decision “I have noted the e mail and attachments from Mr Mason. I have listened to the recording. There is no evidence that Mr Singh did any chasing prior to Friday 3 September 2021. The recorded call was only made after my office chased. The person taking the call indicates that the result was sent previously and he should check his spam folder. Mr Singh appears to do this for the first time on 3 September 2021 but he does not show his scrolling down. I remain of the view that Mr Singh has done too little to date and even today I do not have all the documents I listed on 12 July 2021. I am not prepared to lift the suspension until that case management direction has been complied with.” Mr Mason acknowledged the decision shortly thereafter and responded “I have informed my client that compliance with the direction is the quickest route to lifting the suspension”. Mr Mason also attached a copy of Mr Singh’s covid test result, which is said to be dated the 7 September 2021. Mr Mason suggested it therefore seems highly unlikely that it could have been sent out any earlier. Mr Mason indicates a possibly alternative interpretation of the call but it only added to the confusion bearing in mind what I heard from the call as set out in the above decision.

Further documentation was subsequently sent in on 20 September 2021 and 21 September 2021. On 22 September 2021 Mr Mason confirmed that both Mr Singh and Mr Coot would attend the reconvened Public Inquiry on 4 November 2021. On 23 September 2021 at 14:06 the PI caseworker notified Mr Mason that the suspension was lifted with immediate effect. The caseworker also reminded Mr Mason of my direction on 6 September 2021 that I would expect evidence that the vehicles had been parked up prior to any reconvened hearing (paragraph 9 of that decision). With the date of the new hearing set for 4 November 2021, Mr Mason was notified of the following direction “… your client is required to provide evidence, no later than 7 days prior to the Public Inquiry, that the vehicles have been parked up from 23:45 on 7 September 2021 until today.”

On 27 September 2021 at 12:49 my office received communication from Mr Coot including a copy of a previous email to Mr Singh (23 September 2021 at 15:30). Mr Coot checked Clockwatcher on the morning of the 8 September which showed that all drivers had been removed and Mr Singh had told Mr Coot that the vehicles were not in use. Mr Coot states that he had run a Clockwatcher report that morning (23rd) which showed that the vehicles had been in fact been use. Mr Coot sets out the predicament to Mr Singh, namely that he had taken Mr Singh at his word but there was a breach of trust and that they were both going to have to explain the vehicle movements to myself. On 27 September 2021 Mr Coot wrote to the caseworker “I am concerned but have duty to report to the Traffic Commissioner that vehicles on OF20119075 have been operating”. Mr Coot states that he was on holiday from the 11 to the 20 September and ran a fresh report on the 23 September which clearly showed that the vehicle had been moving. He concludes “these operations by the Operator have put me in a difficult position and I feel he is doing as he wants and not as his told”.

On 1 October 2021 I issued the following direction which was sent to Mr Mason but also copied to the email addresses on VOL for Mr Coot and Mr Singh “The Traffic Commissioner has directed that all digital DDD files for all the company’s vehicles for the period from 23:45 hours on 7 September 2021 until 13:00 on 23 September 2021 are to be sent to DVSA, by return. Please sent all of the digital data to (Traffic Examiner direct email address). If you have any questions please contact me”. Within 90 minutes Mr Coot responded to say that he had tried to log in to Clockwatcher to retrieve the raw data for the Traffic Examiner, but he was unable to log in. Clockwatcher informed him that the Operator had cancelled his log in but he offered to forward to my office what he had retrieved the previous week. Mr Coot then sent through the “digital VU KM details summary report”. These are the analysis reports as opposed to the digital data. They are helpful in showing what Clockwatcher has picked up, but it is not a substitute for raw data which DVSA then run on their own system.

On 29 October 2021 my PI clerk chased Mr Mason as DVSA had still not received the vehicle unit downloads. Mr Mason responded the same day “I was informed by the Operator that they had not sent the data, based partly on the fact that the TM sent over the print outs. The TM is still locked out but is visiting the Operator over the weekend so we will see if there is any change. I am putting together an addendum statement explaining why the Operator continued using the vehicles in breach of the suspension”. The Operator subsequently produced a Witness Statement dated 3 November 2021. No data was ever sent to DVSA. If follows that in this section of the decision, that there are two elements, namely: -

• Operating vehicles during a period of suspension i.e. illegal operation; and

• Failure to produce the actual vehicle data to DVSA.

Mr Singh’s statement of 3 November 2021 can be summarised as follows: -

Mr Singh was fully aware of the terms of the suspension prior to it coming in to force on 7 September 2021.

• Mr Singh does not seek to excuse his behavior but provide an explanation of why “I operated in defiance of the suspension”.

• Mr Singh acknowledges that he has “seriously damaged the trust that the Traffic Commissioner is entitled to expect of me as a responsible operator”.

• There is a long narrative around his Covid test and subsequent delays which I have already dealt with elsewhere.

• Mr Singh expressed his surprise when he found out that the Licence was suspended and felt he was being punished for following government advice to self-isolate. He only appreciated that the primary reason for the suspension was failure to comply with direction on 12 July after the event.

• Mr Singh acknowledges he should have approached my office through Mr Mason with more detail of the impact of the suspension, but he acted in “blind panic”. Mr Mason then goes into the nature of the work and contracts across the relevant period and appends some documentation. Mr Singh suggests that his business would collapse overnight if he had complied with the suspension. Mr Singh states “I would hope that the Traffic Commissioner would accept that this was entirely out of character for me. I have always fully complied with my obligations as an operator to the best of my abilities and refer to the fact that I fully complied with the suspension of my licence when it was imposed in October 2020”.

There is much about the Witness Statement that is unsatisfactory but to be fair Mr Singh acknowledges that was always going to be the case. The suspension decision clearly sets out the reason for it. The e mails from Mr Mason show the challenges he had communicating with his client prior to the hearing on 6 September 2021, part of which was said to be because Mr Singh was very ill and not just suffering the symptoms of Covid. Mr Singh makes no mention of that illness being a barrier to communication in his Witness Statement. Indeed, immediately upon notification of the suspension he is signing the Witness Statement and taking all necessary steps to keep his business going in defiance of the suspension. It was open for Mr Singh to attend on 6 September 2021 virtually via Microsoft Teams but this option was not taken up.

This case was originally due to be heard on 12 July 2021 and evidence on the impact of any regulatory action should have been lodged by that time but there was nothing. Mr Singh suggests that he was well enough to make numerous calls to 119, albeit he didn’t take any screen shots. The first time there is any suggestion of doing this recorded is in a call after I have suspended the Licence. Anything said after that point is entirely self-serving. It further contradicts Mr Mason’s instructions that Mr Singh was too unwell to attend any part of the Hearing on 6 September 2021.

Traffic Commissioners have been incredibly careful to assist Operators and their witnesses to ensure that government guidelines are followed and that no one is put at risk. Each Office of the Traffic Commissioner has a bespoke risk assessment to ensure safety. From April 2020 we were undertaking fully virtual hearings and from July 2020 Traffic Commissioners were back at a mix of virtual, in person/hybrid and fully in person proceedings. The guidance is clear that no one should attend if they have symptoms but there is also a process, they must go through communicating with the relevant Office of the Traffic Commissioner to ensure effective case management. Traffic commissioners have sought relevant evidence of steps taken around symptoms because there are some who have used covid as an excuse to delay a hearing. My office has even had the unfortunate event of a fake positive PCR test certificate being adduced. Mr Singh had the benefit of the assistance of a solicitor and his Transport Manager, but he has failed to properly utilise those additional advantages. The suspension of the Licence on 7 September 2021 falls firmly with Mr Singh.

The Witness Statement fails to deal with not providing the original data to DVSA. The covering email from Mr Mason states “I understand that the Operator has not provided the digital data to the DVSA on the basis that it was no longer necessary after Darren Coot sent the analysis. I have informed him that he should have sent it regardless”. In oral evidence Mr Singh said that he had not realised the reference to DDD meant the digital data. Mr Singh suggested that he had sent digital data previously and if it had referred to raw/digital data he would have known what was meant. The explanation is without merit. The direction dated 1 October 2021 refers to “all digital DDD files” and requires the Operator to send “all the digital data”. There is simply no good reason for Mr Singh to be confused as between a download summary report and the actual data itself. If Mr Singh was in any doubt, then he had the assistance of Mr Mason. By failing to send that original data I am deprived of an independent assessment of exactly what went on during the period of suspension. DVSA run on Tachoscan and it is not unusual within Public Inquiries for DVSA to pick up further infringements than those picked up by an Operator. Further by failing to send the data to DVSA, the Agency were precluded from requesting any additional evidence that may have been needed to provide a complete picture.

Mr Singh disputes Mr Coot’s evidence that he cancelled Mr Coot’s Clockwatcher access after Mr Coot realised that the vehicles had been operated. Mr Singh told me that he was unaware Mr Coot’s access was removed and if Mr Coot had told his cousin that message was not passed on. I prefer the evidence of Mr Coot. Quite properly on the 23 September 2021 Mr Coot was checking Clockwatcher to ensure that the suspension had not been breached. When he tried to gain access again, he was unable to do so. The only material change in between was Mr Coot emailing Mr Singh asking why he had operated during the period of suspension and how were they going to explain that to me. Mr Coot told me that he was effectively speaking to Mr Singh through his cousin and that has been the method of communication since the previous Public Inquiry. Mr Coot says far from the cousin not passing the locked access message to Mr Singh, the cousin gave the impression of being fully aware that Mr Coot had been locked out.

Any remorse expressed by Mr Singh for operating illegally is tainted by the failure to cooperate thereafter to enable an independent assessment of how serious that breach was. Mr Singh relying on the fact that he had obeyed a previous Licence suspension is of limited assistance to him bearing in mind you cannot pick and choose when you want to comply. The 2020 suspension was a very different position in any event because it was over the Christmas period where there would effectively be a shutdown or limited trading. His assertion that he has always fully complied with his obligations as an Operator to the best of his abilities belies his history to date

Even the documentation attached in support of his assertion that his business would have collapsed overnight raises as many questions as it answers. There is a contract haulage agreement application with Hanson dated 7 July 2021, but it is just an application. There is no approval to proceed signature from the Regional Transport Manager. Mr Singh has attached the standard terms of trading with Tarmac but there is no interparty contract. The general conditions of contract are available free to download online by anybody. Mr Singh has attached a quarter page of the front of the main contracted haulier agreement but majority of it cannot be seen. It is signed by Mr Singh on the 19 March 2020 but it is not signed by the Tarmac Logistic Services Team Leader. There are payments from Tarmac and Hanson which indicate there is some sort of arrangement, but we also know that previously Maximus and R&J did subcontract this type of work. In any event Mr Singh makes a bare assertion that half of his work is with these two contractors, but he does not provide any financial modeling or independent corroboration of that. Mr Singh knew that the quickest way to get the suspension lifted was to comply with my directions but whilst operating illegally all he sent on 9 September was a Witness Statement lacking in detail, none of the extant documents and some screen shots.

Mr Singh attaches FORS Bronze and FORS Silver certificates, but FORS is a procurement standard with an element of safety. It is not evidence of Operator Licence compliance, and this is clearly stated in FORS documentation such as the audits. Mr Singh attaches his Transport Manager CPC certificate issued in April 2018 but the benefit of that training has been diminished enormously based on his compliance record to date. Similarly for the certificates of other refresher training from 2019 and 2020.

In reality the terms and the reasons for the suspension were clear. Mr Singh did not comply sufficiently with my directions of the 12 July 2021 until 22 September 2021. Mr Singh did not seek an urgent virtual hearing or properly engage with Mr Mason or Mr Coot to provide the necessary assurance. By operating illegally and failing to provide the data, Mr Singh has committed a gross breach of trust and not just by a one off decision but by an ongoing course of conduct over the period from 8 September 2021 through to 4 November 2021. During the Hearing Mr Singh kept saying he now had the data, and he could send it over and that he could provide any further documentation that I wanted. Mr Singh knew from the 12 July 2021, 6 September 2021 and 1 October 2021 what was required, and he failed to deliver either in part or in some cases at all. It is hard to see how Mr Singh considers this appropriate behavior bearing in mind the very clear warning he was given by the Deputy Traffic Commissioner in 2021.

10. Transport Manager

Mr Coot’s pre-hearing representations in the e mail dated 5 July 2021 include: “My time with R & J has been the most testing time since being involved in the transport industry Due to the language barrier and getting them to understand the procedures to become compliant. I have worked with many different operators since 1996 I plan to work with R & J until they are one hundred percent compliant then at the end of the year to retire from the transport industry”. Mr Coot expanded upon this in oral evidence. He would ask Mr Singh for things to be done but his advice was not always followed, such as the example at paragraph 46 above. Mr Coot accepted that his auditing of the maintenance documentation should have been more robust. Mr Coot told me he had mention to Mr Singh that the agency drivers needed to be checked before the start of a shift and the lack of systems made it unmanageable. Mr Coot accepts that he should have put his concerns in writing, particularly considering the October 2020 decision. That said there is evidence that Mr Coot was regularly checking driver licenses, monitoring driver cards for the week an agency driver is with them, and print outs are being done where a driver went over his hours e.g due to an accident. I give credit to Mr Coot for notifying my office of the unlawful operation in September 2021 whilst he was on holiday once he returned and realised what happened.

11. Determination

Mr Singh’s default position is that anything that makes him look non-compliant or untrustworthy is down to communication challenges and innocent mistakes. The DTC gave Mr Singh the benefit of the doubt and accepted this. I now have a wider body of evidence to form an assessment. At all 5 hearings since 2019 Mr Singh was assisted by a professional Punjabi interpreter and on one occasion his cousin took over when the Interpreter had to leave. The Interpreter on 4 November 2021 was carefully selected by my office because of her excellent services over several Public Inquiries. Mr Singh lay the blame for delays in booking a PCR test after 20 August 2021 on language barriers, but the NHS site confirms full interpreter services in 200 languages. Mr Singh avers Clockwatcher misunderstood him, and he did not intend to cancel Mr Coot’s account. This is directly contradicted by the preferred evidence of Mr Coot that Mr Singh’s cousin already knew that Mr Coot’s access had been cancelled. Mr Singh says that he contacted ClockWatcher to ensure that the data was sent to him at the same time it was sent to Mr Coot as he wanted to ensure that it was received. This purported level of diligence is not shown in relation to what came next, namely assuming that the print outs were sufficient and not following up with Mr Mason or DVSA until it was too late. Mr Singh’s evidence has been shown on numerous occasions to change depending on the topic at the time, especially when the veracity is tested.

There are few positives in this case in terms of the Operator. The fundamentals of drivers hours management are in place but blotted by the failings on control of the agency drivers. The statutory records show that Mr Coot and Mr Singh followed up the April 2021 prohibitions with a disciplinary meeting with the driver and a reminder letter to drivers of their responsibilities. I am told that laden roller brake tests and gate checks are being done albeit I am unable to assess their effectiveness. Likewise, I am told of a retorque register but it has not been produced.

Mr Singh has demonstrated over a sustained period that he acts at will, not through any lack of communication skills, but out of his own self-interest. Mr Singh has continued to put commercial efficacy first, regardless of any direction from a Traffic Commissioner, a Deputy Traffic Commissioner, OTC, DVSA or the Transport Manager. In forming this view, I have given significant weight to the following: -

• Ongoing breaches of the Licence undertakings in relation to roadworthiness.

• Failing to co-operate across numerous areas – see paragraph 42 above.

• The ongoing lack of transparency or evidence of arms-length arrangements with Mr Sandhu/Maximus/ Bluestar.

• The ongoing use of agency drivers without robust management systems around fatigue and control.

The following are aggravating features: -

• The delay in complying with my directions dated 12 July 2021, which were designed to bring order and clarity after the equivocating evidence earlier in the day.

• Operating throughout the period of suspension – 6 vehicles and 17,646 kms (19,236 on Mr Coot’s printout less 1590 pre suspension on 7/9/21) – whilst fully understanding the terms of the suspension and the potential consequences for the Operator Licence.

• Failing to seek to vary the suspension order even if it could not be lifted and complying with the order in the meantime.

• Taking steps to prevent data disclosure to DVSA.

Traffic commissioners often say that a case is a bad one. Mr Singh’s failure to heed the very stark warning from DTC Davis in October 2020 and to continue to conduct his businesses giving priority to commercial need over safety, compliance and transparency make this a terrible case. The chronology is such that the starting points is SEVERE in terms of Statutory Document 10 Annex 4. The few positives in this case do not move this down a category or indeed dent my overriding disquiet about the mendacious Mr Singh. Mr Mason does not shy away from this in his written closing, albeit suggesting a starting point of ‘SERIOUS to SEVERE’ and acknowledges that trust remains a challenge. Despite Mr Mason’s valiant efforts to persuade me otherwise, I do not trust Mr Singh to show due regard for the law or those who uphold it. It follows that the suggestion of stepping back from revocation, invoking instead an extended period of suspension followed by a significant indefinite curtailment with a full-time transport manager in post are not persuasive.

Mr Singh has through his acts, omissions, equivocating and inconsistent evidence and illegal operation demonstrated to me that he is untrustworthy to the core. The evidence is overwhelming that the only thing Mr Singh can be trusted to do is to do as he pleases when it pleases him. This is the Operator and Mr Singh’s third Public Inquiry. They were given the benefit of the doubt in 2019 and – just – in 2020 but no more. It would undermine the integrity of the operator licensing system if this Licence continued after the 2021 hearings. The Operator deserves to be put out of business to protect the hardworking legitimate industry. Loss of good repute and revocation are appropriate and proportionate where, as here, there is an “… absence of any objective justification and excuse, there have been long term, sustained, repetitive deficiencies” (2009/041 Waterstone Motors t/s the Green Bus Service). Accordingly, I have reached the decision set out in paragraph 1 above.

12. Disqualification

The relevant case law and principles are set out in Chapter 13 of the Upper Tribunals Digest of Traffic Commissioner Appeals (2021) and Statutory Document No. 10 paragraphs 60 – 64 and 102 – 104. Disqualification is a potentially significant infringement of rights and the Upper Tribunal has indicated that whilst there is no ‘additional feature’ required to order disqualification the Operator/individual are entitled to know the reasons. In 2010/29 David Finch Haulage the then Transport Tribunal said: “The principles that derive from these and other cases on the point can be simply stated. The imposition of a period of disqualification following revocation is not a step to be taken routinely, but nor is it a step to be shirked if the circumstances render disqualification necessary in pursuit of the objectives of the operator licensing system. Although no additional feature is required over and above the grounds leading up to revocation, an operator is entitled to know why the circumstances of the case are such as to make a period of disqualification necessary. Additionally, periods of disqualification can range from comparatively short periods to an indefinite period, and can be confined to one traffic area or be extended to more than one”.

The case law indicates a general principle that at the time the disqualification order is made that the operator cannot be trusted to comply with the regulatory regime and that the objectives of the system, the protection of the public and fairness to other operators, requires that the operator be disqualified. Each case must turn on its own merits: 2009/011 Katherine Oliver and J W Swan & Partners, Catch22Bus Limited, Philip Higgs v The Secretary of State for Transport [2019] EWCA Civ 1022.

Mr Singh’s flouting behaviours, having been given a final chance in October 2020, undermines the bedrock principles for which the operator licensing regime exists – road safety and a level playing field for all. It would be an affront to other compliant and law-abiding operators if, in such a case as this, an order of disqualification is not made. Even if the suspension was complied with, the facts of this case would merit disqualification considering the matters set out in paragraph 70. That alone may place it in the 2–3-year category because of the previous revocation and the number of Public Inquiries. It is necessary to send the message around protecting road safety and fair competition - Operators cannot make promises at Public Inquiry and then revert to previous errant ways.

The aggravating features set out in paragraph 71 are also directly relevant to disqualification. Mr Singh frustrated attempts for an orderly conclusion of the case on 6 September 2021 by failing to comply with the case management directions. When interim regulatory action was taken on 6 September 2021 Mr Singh ignored it. If Operators become tempted to do the same in the hope of not being found out the regime would collapse with catastrophic consequences. In my judgement this is a case which requires a significant period of disqualification. Mr Mason refers to 2019/049 Roger Llewellyn Limited and seeks to distinguish the gravity of it compared to this case. It is only on those rare occasions on which the facts are the same that another decision is likely to be of any assistance on the question of the appropriate length of disqualification: 2012/044 Highland Car Crushers Ltd, 2012/56 & 57 Deep Transport Ltd & Midland Transport Ltd. In 2014/40-41 C G Cargo Limited and Sandhu, the Upper Tribunal drew attention to the suggested range of 5 to 10 years for conduct meriting the description “severe”. The aggravating features land this case firmly in this category and seven years is justified. It is necessary to deter those foolish enough to work in ways that prevent effective and transparent regulation.

Paragraph 61 of Statutory Document No. 10 provides:

In certain circumstances a traffic commissioner may order under section 28(4) that an individual is not only disqualified from holding or obtaining an operator’s licence but also from being involved in management, administration or control of the transport operations of an entity that holds or obtain such a Licence in Great Britain. The Upper Tribunal had regard to a decision of the Transport Tribunal and in particular that a traffic commissioner must “ensure that the purpose of an order is not undermined or defeated by a disqualified person becoming involved with the management of another operator’s licence.” This will be even more important where a traffic commissioner is concerned regarding the risk of “fronting”.

I have included such a provision here because I am concerned that Mr Singh may seek to persuade family members or long-term contacts to help him evade the impact of this decision. They need to understand that if found to have so assisted there may be serious consequences. Accordingly, I have reached the decision set out in paragraph 2 above.

13. Mr Coote

In his closing submissions Mr Coot acknowledges several challenges from the outset, particularly the frustration of having to work via Amrit Singh due to the language barrier. Mr Coot knew this would be an issue even before the October 2020 Public Inquiry. Mr Coot acknowledges that because of this frustration and the fact that he did not have the full cooperation of Mr Singh, he should have set out his concerns in writing and if ignored resigned. Simply put Mr Coot says that walking away is not in his nature and he had made progress. Mr Coot acknowledges with hindsight that he persevered too long.

In light of Mr Coot’s straightforward evidence and candour and otherwise clear history I find that he hangs on to his good repute by a gossamer thread. He can retire with his good repute intact (just) but if he decides to re-enter the industry then lessons must be learnt from this experience.

Miss Sarah Bell

Traffic Commissioner

11 March 2022

14. ANNEX A

Traffic Commissioner Decision – 6 September 2021

The Traffic Commissioner reached the following decision:

1. “Pursuant to an adverse finding under section 26(1)(h) of the 1995 Act - failure to properly respond to my case management directions and co-operate with the hearing - the Licence is SUSPENDED from 24.35 on Tuesday 7 September 2021 until the reconvened hearing on a date to be fixed, or earlier date agreed by me in writing.

2. During the period of suspension, the authorised vehicles must not be used or specified on any other Licence in Great Britain, as per section 26(6) of the 1995 Act. REASONS

3. The PI was due to be concluded today (6 September 2021). The hearing convened with the Operator’s solicitor (Mr Mason) and Transport Manager (Mr Coot) in attendance. A Punjabi interpreter was available to assist remotely. The sole director, Mr Jasbir Singh, did not attend.

4. On 12 July 2021 the case was adjourned part heard until 23 August 2021. That day, I issued case management directions which are case noted on VOL as follows: -

‘…witness statement lodged in advance to include a detailed chronology of events and also the business arrangements with Bluestar Haulage Ltd bearing in mind the financial transactions. Full supporting documentary evidence will be required. Insofar as there is another business bank account for which the statements have not yet been disclosed, these should be provided.’

1. By 19 August 2021 only some documents had been received and no witness statement. Mr Mason anticipated sending the rest the next day. Instead, on 20 August Mr Mason notified my office that Mr Singh had called to say he has Covid symptoms and time was needed for Mr Singh to undertake PCR testing. I adjourned the case to 6 September 2021 for this process. Nothing further was heard save confirmation of a PCR test booked for 23/8/21. Due to the silence, at my request, my clerk chased Mr Mason for the missing documents and witness statement on 3 September 2021. Mr Mason responded that he did not have everything yet. He says ‘I understand from Mr Singh that his illness may have some bearing on this; despite having had a Covid test, he appears to have now (sic) results back as yet. I will continue to chase him, but their absence is going to make it very difficult to present the operator’s case’. The next email did not arrive until 17.11 from Mr Mason saying his client has been calling 119 chasing his results, attaching some undated screen shots. Mr Mason ends saying that he does not know whether his client will be here or not.

2. This morning Mr Coot told me that he is not aware of who is running the business and controlling the transport operations in Mr Singh’s absence. He has been to the operating centre on 28/8/21 and 3/9/21 but could only see the vehicles to walk round. No-one was present. Mr Coot has the PMIs because he receives them from the contractor by e mail but not the driver walk round check sheets (precluding effective auditing). The drivers have his mobile number if there is a problem but that is a reactive system on its own. He did receive a text from Mr Singh 8 days ago asking about the possibility of purchasing a vehicle but nothing more. Mr Singh’s cousin Mr Sidhu remains in the background, but Mr Mason and Mr Coot confirm that from their experience this is in relation to overcoming language barriers rather than operational involvement. I have given since 11.30 this morning for screen shots of actual call logs showing the dates when the 119 calls were made but as at 12.55 none are here.

3. The STC Statutory Document No. 9 at para 58 states: …..The Upper Tribunal declined to criticise a traffic commissioner for suspending a licence pending receipt of appropriate financial evidence. The Upper Tribunal observed that this type of order might be a “powerful spur to rapid action on the part of an operator who may, up to that point, have appeared to be dragging his or her feet. We can also see how it can provide a measure of protection to the public in cases where it appears, on paper, that there are real concerns as to road safety”. However the Upper Tribunal urged caution and that the power should be used sparingly and on occasions in which it is essential in order to achieve a just result. Traffic commissioners should ask: (i) is it necessary to compel the party to do something? (ii) is the threat to road safety so serious that suspension pending action on the part of the party is essential? (iii) is suspension to prompt the party to do something proportionate to the situation?.. (2012/005 AND Haulage Ltd)

4. In my judgment, this is such a case. Adopting the questions posed numbering above:

(i) yes, in light of the delays and lack of communication which have prevented the hearing going ahead today;

(ii) yes, there are 6 vehicles and drivers apparently working at will; and

(iii) yes – Mr Singh needs to provide actual evidence that he is endeavouring to co-operate with this hearing and my case management directions.

In terms of where we are, I still don’t have the witness statement, I don’t have the chronology, I don’t have all of the documents and I don’t have the director. In reality, what we have is someone who has had since the 12 July to provide the documents and to provide a witness statement. I know from Mr Mason’s emails that there has been a draft with his client for some time and documents are still awaited. I don’t know what they say. Mr Singh needs to produce his evidence; he needs to nail his colours to the mast and I remind myself there are six vehicles and six drivers out there working on the face of it unsupervised. On the 20 August 2021 I had to remind myself of the Upper Tribunal’s decision that sometimes a short adjournment saves a long appeal. It was for that reason, even though I didn’t have the witness statement and all of the documents, that I did grant the short adjournment. Yet here we are on the 6 September no further forward and in my judgment therefore this is one of those exceptional cases that requires a suspension.

1. The suspension remains until I authorise in writing that it can be lifted. The vehicles must only be on the road going to or from a PMI or a roller brake test during the period of suspension if attending pre-booked appointments made prior to 10am this morning. That is the only time I will accept those vehicles being out. I will be expecting vehicle unit downloads to confirm that they were parked up before we meet again. I am not re-listing this case until I have something further such as witness statements, chronology, outstanding documents and/or dated call logs for 119.”