Decision

Decision for Sumi Travel Ltd and Transport Manager Salman Chohan

Published 28 April 2023

0.1 IN THE NORTH WEST OF ENGLAND TRAFFIC AREA

1. SUMI TRAVEL LTD PC1147021

2. TRANSPORT MANAGER SALMAN CHOHAN

3. DECISION OF THE TRAFFIC COMMISSIONER (REDACTED VERSION)

3.1 In the matter of the Public Passenger Vehicles Act 1981

3.2 Public Inquiry held at Golborne on 18 April 2023

4. Background

Sumi Travel Ltd (“the operator”) holds a standard national public service vehicle operator’s licence PC1147021 authorising the use of 3 vehicles issued in 2017.

The operator’s sole director is Sumair Chohan, and the Transport Manager is Salman Chohan. They are brothers and live at the same address.

In April 2022 a maintenance inspection visit was undertaken by DVSA vehicle examiner Alan Chan. He made several unsatisfactory and troubling findings. These included the fact that inspection records appeared to be incomplete and poorly recorded with some discrepancies calling into question their authenticity. The vehicles inspected during the visit were in poor condition and both were issued with prohibition notices for multiple defects. It was also noted the vehicles had not been correctly submitted for Class 6 MoT tests as required for their PSV categorisation.

The Vehicle Examiner expressed concern about the knowledge and degree of control being exercised by Salman Chohan as Transport Manager in the light of these findings.

The licence was granted following scrutiny of the application at a public inquiry on 16 February 2017. The hearing was called due to concern about links to other operator licences held by members of the Chohan family that had been revoked in recent years. The Deputy Traffic Commissioner granted the application with the following comments,

“I am satisfied from the evidence heard, including from Raymond Brigden [the nominated Transport Manager] that with the undertaking now attached I am able to grant this licence in part. I shall not “visit the sins of other family members” on this operator but require that his father, Tariq play no part whatever in operations. My concerns about capability of this fledgling operator to run a fleet of 6 vehicles immediately is such that I restrict the operator to 3 vehicles but indicate I would be prepared to review- on the basis of the track record then in place- in August 2017 whether up to 6 vehicles might be authorised.”

Mr Bridgen was removed as Transport Manager in October 2017 and replaced by Salman Chohan.

5. The Call to Public Inquiry

The call to public inquiry was issued to the operator on 14 March 2023. This gave notice that the issues of concern to be considered related to Sections 17(3)(a), 17(3)(aa), 17(3)(b), 17(3)(c), 17(3)(e), and14ZA(2) of the Public Passenger Vehicles Act 1981 (“The Act”) as well as the disqualification provisions of Section 28 of the Transport Act 1985.

Mr Salman Chohan was called up as Transport Manager by letter of the same date that gave notice of consideration of the requirement of good repute and professional competence in Schedule 3 of the Act.

6. The Public Inquiry

The hearing was held at Golborne on Tuesday 18 April. The operator was represented by director Sumair Chohan and Transport Manager Salman Chohan. The operator and TM Chohan were legally represented by Tim Culpin, solicitor instructed by CE Transport Law.

Vehicle Examiner Chan also attended to give evidence.

7. Evidence

In advance of the hearing, CE Transport Law submitted representations on behalf of the parties and supporting evidence.

Financial evidence was submitted that showed insufficient funds had been available over the last 3 months to meet the requirement of financial standing. [REDACTED]

I was invited to consider a period of grace. [REDACTED]

VE Chan gave evidence of the findings made during his investigation visit in April 2022 as recorded fully in his written report. Mr Chan described the condition of both vehicles inspected as poor and indicative they had not been maintained as required.

Mr Chan highlighted the failure to submit the vehicles for the correct class of annual test. He questioned Transport Manager Salman Chohan’s claim that he was unaware of that requirement Salm Chohan appeared to otherwise have a good knowledge of requirements relevant to PSVs and Section 19 community permit holders.

The documents presented by the Operator for the public inquiry showed changes had been made to the approach to maintenance since the DVSA investigation and record keeping appeared to be much improved. VE Chan had the opportunity to briefly inspect the documents submitted and he agreed with my assessment that there were clear signs of progress.

I noted, however that the poor annual test history was persisting. One vehicle had failed at first presentation in January 2023 and the second had not been submitted for its annual test in April 2023 after a defect was identified. It remained off road at the date of the inquiry. This suggest the approach to maintenance is still not fully effective.

A question briefly arose during the inquiry as to whether a defect identified on one vehicle had been repaired as required. I noted that director Sumair Chohan was immediately able to answer that question in detail and he then directed Mr Chan and myself to documentary evidence that showed the defect had been promptly and appropriately addressed. I also noted that it was Sumair Chohan who sought to deal with that that matter, and Salman Chohan made no contribution to the discussion.

Sumair Chohan and Salman Chohan both confirmed that they adopted and confirmed the contents of the written representations provided by their solicitors.

Sumair Chohan said that he had dispensed with the services of the original Transport Manager as he lived some distance away from Manchester and he had concerns about his effectiveness. Mr Chohan said that he decided to sponsor his brother Salman to seek his CPC qualification as he was finding great difficulty in recruiting another local Transport Manager. I suggested to Sumair Chohan it could be interpreted from the chronology of events that he had nominated Mr Bridgen initially as a person independent of the family as a device for the purposes of securing a licence and had dispensed with his services once that had been achieved. Sumair Chohan emphatically denied that was his intention.

In the written submissions, I was informed that, “the operator accepts he did not check the paperwork and relied on his transport manager to do this. “. Sumair Chohan confirmed at the hearing this was correct. He said he had not realised the extent of the failings with the maintenance records and believed that they were being checked by Salman Chohan as Transport Manager.

Both Sumair Chohan and Salman Chohan referred to a breakdown in communications between them in the months leading up to the DVSA visit. This apparently related to a personal matter, but they did not expand on that further. That had also weakened their ability to identify and rectify the shortcomings in their approach to maintenance and record keeping.

Sumair Chohan referred to the new record keeping systems he had introduced including ad-blue recording and brake efficiency results. I was told that Sumair Chohan was now introducing monthly roller brake testing and was working to bring down the interval between inspection intervals. Sumair Chohan explained the training he was now arranging for drivers and gave the example of one driver that he had tackled for failing to keep written records.

Sumair Chohan confirmed he has now agreed a maintenance contract with a new provider in the past week and produced evidence of the same. The new provider has PSV trained technicians and a green OCRS rating on its own operator’s licence. I noted Sumair Chohan had also completed Operator Licence Awareness training since the DVSA visit.

I asked Sumair Chohan if (given the challenges he has found recruiting a Transport Manager) he has considered qualifying as a Transport Manager himself. He replied that he had not as he thought it was better to have another person carrying out the role. That is fair comment, and I cannot criticise that approach.

Salman Chohan explained that he worked full time for a pharmaceutical company on a self-employed basis as a “regulatory affairs professional”. He said this took up to a maximum of 40 hours per week between Monday and Friday. When I asked if there was a minimum amount of time he had to spend on that occupation, Mr Chohan said that he could choose. Typically, he finished that work at 4pm on a Friday and then started again at noon on Mondays although sometimes he would not work Fridays and Mondays). Salman Chohan then said he spent 4 hours every Saturday on his responsibilities at Sumi Travel and then 8 hours on a Sunday for his other two licences.

Mr Culpin asked Salman Chohan if he was available to assist his Operators if required when he was working in his full-time occupation during weekdays. Mr Chohan replied that he was, if given notice.

Salman Chohan offered his apologies for the errors he had made. He insisted that he had sought advice on the annual test class required and genuinely believed that a Class 5 test would suffice. It appears the decision to submit the vehicles for Class 5 testing was the responsibility of Salman Chohan as Transport Manager and not one taken by Sumair Chohan as director.

Salman Chohan accepted that he did not give the appropriate attention to the requirements of the licence. He said this was attributable to the breakdown of communication with his brother. On reflection he should have reported the fact he was not acting effectively to my office but said he did not do so because he hoped matters would improve. He denied that the family relationship had played a part in that decision.

Salman Chohan has now attended a CPC refresher course although I note his initial qualification was as recent as 2019 and would not have expected his knowledge of fundamental aspects of compliance to need refreshing after such a period. Although the written submissions referred to Sumair Chohan and Salman Chohan working together to review and address the issues, Salman Chohan did not offer any specific example of a change that he personally had implemented. The impression that I took from the evidence of both brothers was that the changes made had been driven and implemented largely by Sumair Chohan

8. Findings of fact

I do not find that there was any impropriety in the original nomination of Mr Bridgen as Transport Manager. I accept Sumair Chohan’s explanation for the change in Transport Manager. I have taken account of the fact that at the time of the previous public inquiry, Salman Chohan was not qualified to act as a Transport Manager. I consider it unlikely that the Operator planned at that time to appoint him, and the nomination of Mr Bridgen was genuine.

As I indicated at the close of the hearing, I do not find that the inspection sheets were deliberately falsified. Both Sumair and Salman Chohan deny they falsified the records, and the maintenance provider also denied any such wrongdoing when interviewed by the DVSA. I can well understand how the woefully poor standards of record keeping taken with the poor condition of the vehicles led to that suspicion, but the evidence is insufficient to allow me to make a finding of falsification.

Based on the evidence submitted by the operator for the public inquiry, I find the operator lacks financial standing for the purposes of Section 14ZA(2) and Section 17(1)(a)

As a consequence of the decision recorded below in relation to transport Manager Chohan, I find the Operator lacks professional competence for the for the purposes of Section 14ZA(2) and Section 17(1)(a)

The evidence contained in the brief and heard at the public inquiry together with the written submissions made on behalf of the parties has led to the following additional findings:

• statements made when applying for the licence have not been fulfilled namely that vehicles would be inspected at 10-week intervals and that safety inspections and/or maintenance and repair work would be carried out by Superb Motors Limited of Salford as named on the licence. This satisfies the grounds for regulatory action in Section 17(3)(a) of the Act.

• The operator has have not honoured the undertakings signed up to when applying for the licence , namely that vehicles would be kept fit and serviceable, that drivers would report promptly any defects or symptoms of defects that could prevent the safe operation of vehicles, and that any defects would be promptly recorded in writing and that records would be kept for 15 months of driver defect reports, safety inspections and routine maintenance. This satisfies the grounds for regulatory action in Section 17(3)(aa) of the Act.

• The operator’s vehicles have been issued with prohibition notices by the DVSA in the past five years. This satisfies the grounds for regulatory action in Section 17(3)(c) of the Act.

9. Decision

9.1 Sumi Travel Ltd

Having reached the findings of fact recorded above, I have considered the balancing exercise in relation to the Operator and have considered the positive and negative features by reference to the guidance in the Senior Traffic Commissioner’s Statutory Document Number 10.

The Operator’s solicitors asked me to consider the following positive features:

• No Previous PI.

• Transport Manager recently undertaken 2-day refresher.

• Director undertaken OLAT course.

• Maintenance provider changed and further change to happen.

• Class 6 MOTs now undertaken.

• New policies and procedures implemented.

Strictly it is not correct to assert that the Operator has not been to a previous public inquiry as there was a hearing in 2019 to consider the grant of the licence originally. I do however accept that this was the first hearing called to consider regulatory action and that the Operator had not come to Traffic Commissioner attention since grant and until the DVSA inspection in 2022.

I also accept the other positive features have been established and that I have been provided with evidence of changes made to ensure compliance. Those appear to have been effective to an extent although I remain to be convinced, they can yet be said to be sufficient.

It was conceded on behalf of the Operator that several negative features were present. I would further detail these as follows:

• Evidence up to April 2022 of ineffective management control and insufficient systems and procedures in place to prevent operator licence compliance failings.

• Insufficient driver training and ineffective monitoring procedures in the past with regard to the conduct of the driver walk round check and the completion of the driver defect report.

• Limited changes made to ensure future compliance.

• The fact of the prohibitions issued in April 2022.

• The MoT pass rate below the national average and the failure to ensure vehicles were subject to the correct annual test.

It was submitted on behalf of the operator that this is a case which falls into the ‘serious to moderate’ category envisaged by the guidance in Statutory Document 10 with a starting point of “a longer suspension/significant curtailment/revocation.”

I consider those submissions to be realistic given the information that was available before the public inquiry and the evidence confirming those matters received during the hearing. I do consider that the negative features outweigh the positive features to such an extent that regulatory action in the “serious” category must be considered.

I have gone on to consider the Priority Freight question of whether I can trust the operator to be compliant in future. I do recognise that substantial improvements have been made since April 2022 although there is more to be done. I also acknowledge that Sumair Chohan as director persuaded me through his evidence that he is sincere and committed to his efforts to be more compliant.

Reference was made during the hearing to the impact of the pandemic, but I am not sure I understood the causal link between that and the operator’s past difficulties. What was clear however that those difficulties were attributable to the failure of Salman Chohan as Transport Manager and to the breakdown in communication between the brothers. This amply illustrates the potential risk for Operators who rely on family members to discharge compliance related roles such as director and Transport Manager.

With some caution, I am willing to say that I can trust Sumair Chohan and therefore the operator to be compliant in future. This is with the reassurance that regulatory action falling short of revocation will serve as sufficient warning to him of future expectations. I also take into account the undertakings offered for the Operator as detailed above.

This nevertheless remains a case of serious concern and I do consider that regulatory action is a proportionate and necessary response to the evidence I have heard and to underline the expectation for future compliance.

The licence currently authorises the use of 3 vehicles although only 2 are in active use. I consider it would be prudent to limit the number of vehicles that can be operated to those 2 vehicles until such time that the Operator can satisfy me that the issues with its approach to maintenance have been fully addressed and that it is now compliant. A significant step towards providing that reassurance will be the successful outcome of the audit in October 2023 together with evidence that financial standing is restored.

That direction limiting the number of vehicles will not have an immediate effect on the current business. I do not consider that is sufficient action here given the seriousness of my findings. I consider that further meaningful action is necessary to ensure the Operator understands its expectations in future. I have taken account of the guidance offered in Thomas Muir (Haulage) Limited (1999) SC 86 that regulatory action has a purpose in “deterring the operator or other persons from failing to carry out their responsibilities under the legislation However, taking such considerations into account would not be for the purpose of punishment per se, but in order to assist in the achievement of the purpose of the legislation”.

For that reason, I determine that action in the form of a short suspension of the licence for 14 days should also be applied. I will set the period of the suspension so that it coincides in part with the next school holiday period to reduce the inconvenience to the local authority and the passengers carried. This will also allow a period of notice so that any alternative arrangements can be made.

My findings in relation to financial standing and professional competence, mean that the grounds for mandatory revocation in Section 17(1)(a) are met. I am persuaded that a period of grace applying the provisions of Article 13(1) of Regulation (EC) No 1071/2009 can be allowed to rectify the position in both regards.

I refer to my findings at paragraph 13 above in relation to the financial evidence presented. That evidence is sufficient to persuade me that granting a period of grace will be worthwhile, and that there are reasonable prospects for a good outcome, applying the test set out by the Upper Tribunal in 2014/008 Duncan McKee.

The period of grace will be for just over 4 months initially to allow the Operator time to submit a full 3 months of financial evidence showing that financial standing for 2 vehicles has been restored and maintained. [REDACTED]

I am also satisfied that I have heard sufficient evidence to satisfy the McKee test in relation to the recruitment of a new Transport Manager. The Operator has been paying Salman Chohan a very competitive rate for his services and I am sure that will encourage other applicants. I also urge Sumair Chohan to carefully consider the benefits of having a strong independent transport manager to avoid the difficulties that have arisen in the past on this licence.

The period of grace to restore professional competence will be for just over 3 months initially to 31 July 2023. If any application to extend that period is sought, it must be submitted in good time so that it can be considered before the expiry date. Any such application must also be supported by tangible evidence of the steps taken by the Operator since this decision to identify a new Transport Manager.

I remind the operator that in relation to both financial standing and professional competence, if a period of grace expires without the mandatory requirement being met then the traffic commissioner is obliged to revoke the operator’s licence.

9.2 Transport Manager Salman Chohan

I have applied the same balancing exercise as for the Operator in considering the good repute of Salman Chohan.

The positive features in his case are more limited as I do not consider that I heard sufficient evidence to give him personally credit for the improvements that have been made to compliance since April 2022. On the evidence I heard I consider it more likely than not that it was Sumair Chohan who effected those changes. I do acknowledge that Salman Chohan has attended a refresher course in 2022 but again repeat my concern at I do not consider that such a course should have been necessary to avoid a repetition of the troubling matters than arose on this licence previously.

Responsibility for most of the negative features detailed for the Operator above must be attributed to Salman Chohan’s failure to honour his responsibilities as Transport Manager.

The standard of the maintenance records was very poor and should have been immediately obvious to any transport manager undertaking that role with any degree of required diligence and care. Similarly, the failure to submit the vehicles for the correct Class 6 PSV annual test is inexcusable. There is abundant clear guidance available on this point and Salman Chohan failed to explain to me convincingly why he misunderstood the position.

I have reminded myself of the directions on the general responsibilities of Transport Managers set out in the Senior Traffic Commissioner’s Statutory document no. 3. These include:

• to manage, audit and review compliance systems to ensure that they are effective.

• to review any shortcomings such as prohibitions and/or annual test failures.

• to ensure that vehicles are kept in a fit and roadworthy condition.

• to ensure that reported defects are either recorded in writing or in a format which is readily accessible and repaired promptly.

• to ensure that safety inspections and other statutory testing are carried out within the notified O-licence maintenance intervals.

• to ensure that drivers are completing and returning their driver defect reporting sheets and that defects are recorded correctly.

I found no evidence that Salman Chohan was fulfilling those responsibilities up to the date of the DVSA inspection in April 2022. I was provided with the little tangible evidence that he has been doing so thereafter either.

It was recorded in the written submissions that Salman Chohan accepted that errors were made and that he did not give the appropriate attention to the requirements of the licence. He repeated those admission at the public inquiry and offered his apologies. However, his evidence was lacking in coherent explanation of why exactly matters had gone so far awry. Furthermore, although Salam Chohan gave eloquent assurances that he was rehabilitated, other than the attendance at the refresher course, I struggled to identify tangible evidence of steps he had taken as an individual to improve the Operator’s compliance.

I find that it is likely that Salman Chohan’s full-time occupation and other responsibilities as Transport Manager for two other licences served as a distraction to his ability to properly discharge his duties. It is also clear that the breakdown in relationship between Salman Chohan and the Operator meant that he was not exercising effective and continuous management of the licence. Salman Chohan appears to have recognised that at the time but taken no action to correct matters.

In consequence I find that Salman Chohan is not of good repute as a transport manager in the light of all the matters detailed above. As a result, disqualification must follow.

I have undertaken the same balancing exercise referred to previously and conclude that in this respect also the negatives far outweigh any positive features. In deciding upon the length of the disqualification, I have taken account of paragraph 108 of the Senior Traffic Commissioner’s Statutory Document Number 10, and I disqualify him under Schedule 3 from acting as a transport manager for a period of 12 months.

In terms of demonstrating his rehabilitation after that period has ended, I acknowledge that Salman Chohan has already recently competed a CPC refresher course. If considering his appointment in future, I would expect to see evidence that he has sought further training and relevant experience such as by shadowing a more experienced Transport Manager. I make it clear that I would need to have significant assurances before accepting any future appointment as Transport Manager for Sumi Travel Ltd or other family related operation. I would also want to see evidence of how Salman Chohan would better balance the demands of his full-time occupation with any future Transport Manager role.

Gerallt Evans

Traffic Commissioner for the North West of England

20 April 2023