Decision

Decision for Sleep Revolution Ltd – OD2013648

Published 14 September 2021

0.1 IN THE WEST MIDLAND TRAFFIC AREA

1. DECISIONS OF A DEPUTY TRAFFIC COMMISSIONER

1.1 Sleep Revolution Ltd – OD2013648

The Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”)

2. Decisions made in respect of an operator’s licence with authority for three vehicles held by Sleep Revolution Ltd

1. Adverse findings are made under sections 26(1)(c)(iii); 26(1)(ca); and 26(1)(f); of the 1995 Act.

2. An adverse finding is made under section 26(1)(h) of the Act in that the operator is no longer fit to hold an operator’s licence.

3. An adverse finding is made under section 26(1)(h) of the Act in that the operator no longer has the necessary financial resources.

4. The operator’s licence held by Sleep Revolution Ltd is revoked with immediate effect.

5. Sleep Revolution Ltd is disqualified under section 28 of the Act from holding or applying for an operator’s licence for a period of 12 months

6. Mohammed Din Ayub is disqualified under section 28 of the Act from holding or applying for an operator’s licence for a period of 12 months.

7. Any application involving Najeeb Sabir is to be brought to the attention of a traffic commissioner with a cross reference to this case.

8. Any application involving HDA Solutions Ltd is to be brough to the attention of a traffic commissioner with a cross reference to this case. The same applies to the two directors shown on Companies House, Hasan Ayub & Imran Gill.

3. Attendance at public inquiry held on 18 August 2021

No one attended the public inquiry. OTC staff have confirmed that the call in letter and public inquiry brief were posted as required, there has been no response.

A telephone call today to the number on the system resulted in a female responding, she said she would get a manager to ring OTC back. This did not happen and OTC staff rang again 15 minutes later. On this occasion OTC staff spoke to a male who was office staff with no knowledge, he transferred the call to a female member of staff who indicated that there were no managers in the office on 18 August 2021. She also claimed that the individual nominated as director on the licensing system, Mohammed Din Ayub, was no longer a director. On being asked who was director she would not provide any more information. OTC staff were told that the email address on the licensing system provided for correspondence by the operator is not one that is monitored.

Companies House records show Mohammed Din Ayub resigned as director on 1 May 2021, after the DVSA investigation, the new director is an individual called Najeeb Sabir who has not notified OTC of any change of director.

An email was sent to the female who OTC staff spoke to, with a request that it be acknowledged. The email was acknowledged however the sender indicated that her occupation title was “Purchase Ledger, HDA Solutions Ltd t/a Sleep Revolution”. In other words, apparently a separate limited company was in control.

4. Background

Sleep Revolution Ltd was granted a restricted operator’s licence in October 2018 at a preliminary hearing. The director Mohammed Din Ayub undertook to attend an operator licence management course which he did. I comment that the director appears to not have listened to advice which would have been provided at that course.

Vehicle stops and a subsequent DVSA investigation revealed serious failings which resulted in this public inquiry being convened.

5. Evidence

Before preparing this written decision, I have reviewed the following:

*Written public inquiry brief for Sleep Revolution Ltd;

*South Bucks District Council and another v Porter (FC) (2004) UKHL 33 in relation to written decisions generally; and,

*Aside from those quoted below, various authorities in relation to the approach to regulation, fitness, proportionality, entities and the burden of proof. – Thomas Muir (Haulage) Ltd v Secretary of State for the Environment, Transport and Regions (1999) SLT 666; Crompton trading as David Crompton Haulage v Department of Transport, North Western Area (2003) EWCA Civ 64; Muck It Ltd and others v Secretary of State for Transport (2005) EWCA Civ 1124; 2009/225 Priority Freight Ltd and Paul Williams; Fenlon 2006/277; Skip It (Kent) Limited 2010/277; and, 2002/217 Bryan Haulage (No. 2).

A report by TE Adrian Prior referred to the DVSA investigation which followed both vehicle stops and an unsatisfactory desk based assessment. On 15 May 2019 a vehicle operated by this operator was stopped at the roadside in Devon, it transpired that the driver was driving whilst disqualified, additionally the driver did not hold the required CPC qualification. Separately, the same vehicle was stopped at the roadside in Wales, on that occasion it transpired that the HGV wasn’t insured.

TE Prior describes various failed attempts to contact the operator in his brief. Eventually director Mohammed Din Ayub called him back and indicated that the telephone number on the TC licensing systems was that of Ibrar Hussain who had left the company in 2020, furthermore Ibrar Hussain had been running the transport with director Mohammed Din Ayub having nothing to do with transport. The TE was told that Ibrar Hussain was also a shareholder.

Despite formal letters requiring production of records to the DVSA, they were not provided by the operator. The director suggested that his son should have sent some inspection records. TE Prior was told that there had been a falling out with Ibrar Hussain who had some company records on his laptop which he took with him when he left.

The vehicle which was the subject of both of the two stops referred in the background, see above, was the only one specified at the time of the investigation. Mohammed Din Ayub stated that the company no longer required an operator’s licence and would be surrendering it (although no such application has been received).

A formal interview with director Mohammed Din Ayub revealed other concerns, he did not have any awareness of the Working Time Directive. The operator relied on its maintenance contractor to notify it of inspections due, there appeared to be little or no pro active management of transport.

Despite having been told to produce written submissions to TE Prior, no response had been received.

6. Findings of fact and material considerations

I accept the accuracy of the evidence from the DVSA, it is not contradicted.

The director attended a preliminary hearing and agreed to attend a specialist course to make him aware of his management responsibilities. Whilst he did attend, the failures identified demonstrate an appalling lack of control. To allow an HGV to be driven by someone who is disqualified from driving demonstrates a lack of control. The fact that the same driver didn’t have his CPC qualification illustrates a lack of any effective checking. The second stop revealed an HGV being on the road uninsured, again that is an appalling failure.

TE Prior’s interview with the director reveals a total lack of appreciation of the responsibilities of being an operator, the fact that the director had attended a course makes it especially serious.

Failing to respond to a DVSA investigation is unacceptable.

There was a slight delay in commencing the hearing as it was due to start at 10 am but I asked that calls be made to double check on service in view of the lack of response from the operator. The email confirming that a company called HDA Solutions Ltd is trading as Sleep Revolution Ltd is a concern. The entity holding this licence is Sleep Revolution Ltd and a limited company cannot trade as another limited company.

Najeeb Sabir has apparently taken over as director of Sleep Revolution Ltd but he has failed to notify the TC of this as required. If the directors of HDA Solutions Ltd, Hasan Ayub and Imran Gill had conducted proper due diligence they would have discovered that Sleep Revolution Ltd held an operator’s licence. Whilst their involvement is insufficient in this case for me to make any order of disqualification under section 28 of the Act, I can and I do require that markers be made so that any application involving either of them is brought to the attention of a traffic commissioner. The same applies to Najeeb Sabir.

In determining the outcome of this case I remind myself of comments in a Stay decision in Highland Car Crushers Ltd

“Other operators, with knowledge of the case, might be tempted to look at the circumstances and say to themselves this operator appears to be getting away with it so why should we bother to incur the expenditure of time, trouble and money to run a compliant operation? It only needs one or two operators to adopt this approach to lead to a greater risk that the operator licensing system, which contributes to road safety, will be fatally undermined”

The Upper Tribunal has confirmed on many occasions that operator licensing is based on trust. Helpful comments were made in 2006/277 Fenlon

“It has been said on many occasions that trust is one of the foundation stones of operator licensing. Traffic Commissioners must be able to trust operators to comply with all the relevant laws, rules and regulations because it would be a physical and financial impossibility to police every aspect of the licensing system all day and every day. In addition operators must be able to trust other operators to observe the relevant laws, rules and regulations. If trust between operators breaks down and some operators believe that others are obtaining an unfair commercial advantage by ignoring laws, rules or regulations then standards will inevitably slip and the public will suffer.”

I have sought to identify both positive and negative features as part of my balancing exercise, it is clear that the two positive features. First, director Mohammed Din Ayub attended as required an operator licence awareness course. Unfortunately he did not absorb what he would have been told. Secondly, there was an indication to a traffic examiner that the operator would seek to surrender the licence, although this did not come about. The negative features are described in this short written decision, they are significant in seriousness.

The failures identified led to financial resources being queried in case there were insufficient funds to maintain vehicles and systems. A lack of response is such that I find that the operator no longer has the necessary financial resources. The failures identified also confirm that this operator is not fit to hold a licence to operate HGVs.

I ask myself the Priority Freight question and answer in the negative. When I ask the Bryan Haulage question, I answer in the affirmative and this business merits closure. Any order other than revocation of the licence would in the circumstances be perverse.

There is helpful guidance from the Senior Traffic Commissioner on the length of any order of disqualification under section 28 of the Act. I have reflected on paragraph 100 of Statutory Document number 10 on The Principles Of Decision Making & The Concept Of Proportionality and consider that an order of personal disqualification for Mohammed Din Ayub of 12 months is proportionate in this case. He has attended a preliminary hearing relatively recently and despite attending an operator licence awareness course he has lacked effective control. I note that he has sought to delegate management of transport to someone else without any effective oversight.

Turning to the limited company a 12 months disqualification is appropriate, in the event of any future application I suspect that a public inquiry will determine matters.

7. Decisions

I make decisions as set out at paragraphs 1 to 9 inclusive, above.

Nick Jones

Deputy Traffic Commissioner 18 August 2021