Decision

Decision for Zak Khan-Siddiq (OD2010401)

Published 30 May 2023

0.1 In the West Midlands Traffic Area

1. Written Decision of the Deputy Traffic Commissioner

1.1 Zak Khan-Siddiq (OD2010401)

2. Background

2.1 Licence and transport manager history

Zak Kahn-Siddiq holds a standard national goods vehicle operator’s licence, granted in March 2018, for one vehicle and no trailers. The transport manager at the time the licence was granted was Dilbag Singh: he resigned on 4 July 2018 stating that compliance paperwork and tachograph charts had not been presented to him, despite him asking Mr Khan-Siddiq for them several times. Mr Khan-Siddiq’s version was that there had been a financial dispute between them.

Zahida Parveen was subsequently nominated as transport manager in August 2018. She resigned in November 2019. After an extended period of grace, Paul Johnson was nominated as transport manager in July 2020. He resigned in August 2021. After a further period of grace, a new transport manager Ben Marklew was nominated in November 2021. He resigned on 3 June 2022. Mark Brown was the next transport manager, nominated on 25 July 2022. His nomination was accepted by the traffic commissioner in October 2022 but Mr Brown resigned shortly afterwards, on 10 November 2022. Abbas Farooq was then nominated as the operator’s sixth transport manager in December 2022 and his nomination was accepted by the traffic commissioner in February 2023.

2.2 Variation application

Meanwhile, on 24 November 2022, the operator submitted an application to add one trailer to the licence. The central licensing team in Leeds responded on 29 November 2022, asking for more information and reminding Mr Khan-Siddiq that he must continue to operate within the existing terms of the licence until the application had been determined one way or the other. Following further correspondence, a similar reminder not to operate beyond the existing authority of one vehicle and no trailer was sent on 14 December 2022.

In further considering this application, the Leeds team was noted that Mr Khan-Siddiq had specified a tractor unit as the sole vehicle authorised on his licence on 13 September 2022. Because this gave rise to the suspicion that he might already be operating a trailer without authority, the traffic commissioner decided to propose to refuse the application, and a letter to this effect was sent on 5 January 2023. The letter stated that Mr Khan-Siddiq could, if he wished, request a public inquiry to consider the variation application.

Mr Khan-Siddiq duly requested a public inquiry, which was arranged to take place in Birmingham on 4 May 2023.

3. Public inquiry

3.1 Advance information

In advance of the inquiry, DVSA submitted evidence to the effect that the tractor unit, registration THZ 2377 and subsequently BR07 ERR (a personalised registration number) had been seen by ANPR cameras on the public road on 689 occasions between 1 September 2022 and 31 January 2023. 333 of these sightings occurred after the operator had been specifically told by the team in Leeds on 29 November 2022 that he could not operate beyond his existing authority (ie one rigid vehicle only). Seven photographs were provided of the vehicle on the public road on dates between 14 September 2022 and 5 January 2023. In all of these photographs the tractor unit was pulling a trailer.

DVSA also provided evidence showing that Mr Khan-Siddiq’s vehicle had been issued with delayed prohibitions at each of the two occasions it had been encountered on the road. On 19 March 2019 vehicle GN54 DJJ was given a delayed prohibition for an inoperative obligatory fog lamp and a loose wheel nut, with six inspection notices issued for an oil leak from the engine, body panel damage, a cut to a tyre, an insecure mirror, an insecure battery and an inoperative front lamp. On 21 July 2020 the same vehicle was given a delayed prohibition for damage to an obligatory reflector, an excessively chafed brake pipe, and an inoperative ABS light.

Mr Khan-Siddiq’s MOT pass rate, according to DVSA’s information, was two first time passes out of four presentations. Vehicle GN54 DJJ failed on 30 July 2020 for rear markings and reflectors; on 12 August 2021 it failed on speedometer/tachograph, condition of chassis, and electrical wiring and equipment.

All of the above evidence was included in the inquiry bundle.

3.2 Call-up letter

The call-up letter was issued on 29 March 2023, citing Sections 6, 13A, 13C, 26(1)(c)(iii), (f) and (h), 27(1) and 28 of the Goods Vehicles (Licensing of Operators) Act 1995. The operator was put on specific notice that the issues of financial standing, poor vehicle condition, operating beyond authority and operating without transport managers who were in continuous and effective control, would be discussed.

3.3 Operator representations

Shortly before the inquiry, I received a submission from the operator’s representative, transport consultant Charlie Ahmed, for which I was grateful. The submission accepted that until January 2023 the operator had used a tractor/trailer combination, wrongly thinking that the licence covered this type of operation. A rigid vehicle VA12 EXE had been specified on the licence on 17 January 2023 and had been operated since then.

The submission also stated that Mr Khan-Siddiq “had not been best served” by his various transport managers, although he recognised that it was ultimately his responsibility to manage their performance. Dilbag Singh had departed owing to “a lack of time and an absence of knowledge”; Zahida Parveen had delegated matters to her unqualified partner and had not exercised continuous and effective management; Ben Marklow (sic) and Mark Brown had resigned to pursue better opportunities. No mention was made of Paul Johnson.

Mr Ahmed also supplied a copy of an audit of the operator carried out on 12 April 2023 by his company Invergold Associates Ltd. This recorded “major non-compliance”. Among the audit’s findings were: no procedures in place to download or analyse drivers’ hours and tachograph data; no maintenance forward planner in place; no tyre or wheel management systems in place. The audit also noted that VA12 EXE had been out of tax since 31 March 2023, 12 days previously.

Mr Ahmed also provided a copy of a certificate showing that Mr Khan-Siddiq had attended an operator licence management training course on 3 May 2023, the day before the public inquiry.

Present at the inquiry in Birmingham on 4 May 2023 were the operator Zak Khan-Siddiq, transport manager Abbas Farooq and transport consultant Charlie Ahmed, representing the operator.

3.4 Financial standing

REDACTED

I noted that financial standing was a continuing requirement, not just something to be shown in the two weeks before a public inquiry. Mr Khan-Siddiq said that he would ensure that a minimum £8,000 balance was maintained in the future.

3.5 Maintenance documentation

I looked at the maintenance documents provided. I saw none for vehicle GN54 DJJ, specified on the licence from February 2018 until September 2022. Mr Khan-Siddiq explained that maintenance records had been kept in the vehicle and had therefore been lost when the vehicle had been sold and exported in late 2022.

There were two inspection records available for THZ 2377 (aka BR07 ERR), dated 29 November 2022 and 16 January 2023. There was no record of a first use inspection before it had been specified on 13 September 2022. There was no record of any metered brake check in the period during which it was on the licence: the 29 November 2022 preventative maintenance inspection reported merely “stops satisfactory on road test” (sic). There was one roller brake test for BR07 ERR dated 4 May 2023, but this was five months after it had been removed from the licence.

I then looked at the records for the vehicle currently specified, VA12 EXE. No first use check in January 2023 appeared to have taken place. There was just one PMI, dated 22 March 2023. This reported several driver detectable defects such as inoperable fog and reverse lights, inoperable washers and a rotten and leaking exhaust – i.e. defects which should have been picked up on the daily driver walk-round check rather than await the next six-weekly inspection to be identified and rectified. There was a screenshot of a roller brake test dated 16 January 2023 but no evidence of any metered brake testing since then (the 22 March PMI simply notes that the brakes locked on a road test). DVSA’s Guide to Maintaining Roadworthiness has for several years stated that a road test is not acceptable as a brake test.

3.6 Further submissions and evidence

Mr Ahmed accepted that the picture on maintenance (and on compliance generally) was “a disaster”. But he believed that, especially with the help of Mr Khan-Siddiq’s wife, matters would be much better managed in the future.

I asked transport manager Abbas Farooq why a full set of maintenance documents was not available and why important issues such as brake testing appeared to be being neglected. He said that he had been ill for some 8-10 weeks and had not been able to focus on the operator during that time.

I asked Mr Khan-Siddiq about the many other transport managers on the licence. Had they ever been really present? Mr Khan-Siddiq accepted that they had done very little: he agreed that Zahida Parveen’s husband had been the person he dealt with during her time as TM; he had never even met Mark Brown whose grandchild had been in hospital and who had therefore been unable to carry out his duties.

I noted that Mr Khan-Siddiq and Mr Farooq had signed the TM1 form which (amongst other things) confirmed that they had signed a contract specifying the tasks which Mr Farooq was to perform as transport manager. I noted that the five-line contract which had been supplied amongst the papers submitted by the operator for the public inquiry fell far short of what was required: it specified only the parties to the contract, its duration (18 months) and that the transport manager must “carry out his duties to ensure 100% compliance”. It was not specified what these duties were. I asked Mr Farooq and Mr Khan-Siddiq why they had failed to produce the kind of contract they had confirmed in the TM1 form that they had signed. Neither had an answer.

3.7 Concluding submissions

Charlie Ahmed conceded that it would be impossible to argue that the operator was compliant today. But Mr Khan-Siddiq was determined to do better. He now had a transport manager in place, had attended an operator licence management course, and had the support of his wife. He could be trusted to comply in the future. A 14 day suspension might be survivable; anything more would put him out of business. Mr Khan-Siddiq was requesting a period of grace of three months in which to show financial standing on a permanent basis.

4. Findings

After considering the evidence, I make the following findings:

i) Mr Khan-Siddiq has used a trailer when he was not authorised to do so (Sections 6 and 26(1)(h) of the 1995 Act refer). He continued to operate the trailer for at least a month after having been specifically told this was illegal by the letter of 29 November 2022 from the central licensing team in Leeds. The excuse of ignorance cannot be valid after this date. The ANPR data shows that the trailer was operated on numerous occasions in December 2022 until at least 5 January 2023. The operator has consequently failed to fulfil its undertaking to ensure the lawful operation of vehicles (Section 26(1)(f) refers).

ii) Mr Khan-Siddiq has failed to fulfil his undertaking to keep vehicles fit and serviceable (Section 26(1)(f) refers). Both his MOT pass record and prohibition record are poor. Maintenance is not well documented and adequate brake tests are only sporadically being carried out.

iii) Mr Khan-Siddiq has failed to fulfil his undertaking to keep maintenance records for 15 months. One vehicle’s records were lost when the vehicle was sold; documentation for the other vehicles is sporadic.

iv) There have been two delayed prohibitions of a vehicle operated by Mr Khan-Siddiq (Section 26(1)(c )(iii) refers).

v) Mr Khan-Siddiq lacks appropriate financial standing (Section 27(1)(a) refers). Average available funds over the last three months are £xxxxx, far below the £8,000 necessary to support one vehicle. (sentence redacted). Only in the three weeks before the inquiry have funds reached the £8,000 marker. Financial standing has to be demonstrated on a continuous basis, not just for a public inquiry.

vi) Mr Khan-Siddiq has, in reality, lacked professional competence for most of its life (Section 27(1)(a) refers). The licence was granted in March 2019. For 15 of the 50 months which have passed since then the operator has had to ask for a period of grace when he was without a transport manager (and I am erring on the side of generosity by counting TMs’ appointments from the date of nomination rather than the date of their acceptance of the licence by the traffic commissioner). I find that none of the five predecessors of the current transport manager Mr Farooq has exercised continuous and effective management of the transport side of the business. One sent her partner instead; another never met Mr Khan-Siddiq. None seems to have instituted an effective drivers’ hours monitoring regime, brake testing regime, or system for retaining maintenance records. Mr Khan-Siddiq must have been aware that the nominated TMs were not continuously and effectively managing compliance and were little more than names on his licence, but he took no meaningful action to address this poor performance. Nor does he seem to have learnt from this experience: the contract he has drawn up with Mr Farooq does not specify any of the tasks his new TM to perform, despite both operator and TM confirming on the TM1 form that it did specify such tasks.

5. Balancing act

I carried out a balancing act. On the negative side were the above findings. I attach particular weight to the persistent failure to have in place transport managers who were actually present and carrying out their job; to the operation of a trailer well beyond the date when the operator had been clearly told that he must not do this; to the failure to keep vehicles fit and serviceable and to keep proper maintenance records; and to the lack of financial standing which has meant that vital payments (including to an insurer) were missed.

On the positive side were the fact that Mr Khan-Siddiq has attended an operator licence management course (although very late in the day), has had an audit carried out (although the audit paints a very negative picture) and has engaged a reputable transport consultant. He has made promises of compliance for the future. However, these positives are of very recent nature and in my view are heavily outweighed by the non-compliant and unfunded way in which Mr Khan-Siddiq has operated over a period of several years.

6. Priority Freight and Bryan Haulage questions

I asked myself the Priority Freight question of how likely I considered it to be that the operator would comply in the future. Mr Khan-Siddiq’s history suggests that this is unlikely. He seems to have embarked upon the world of operator licensing without the slightest idea of what is involved and without any knowledge of the function and purpose of a transport manager. He did not inspire confidence in me that he could be relied upon to get things right from now on. A negative answer to the Priority Freight question tends to suggest an affirmative answer to the Bryan Haulage question of whether an operator deserves to go out of business. Because of Mr Khan-Siddiq’s serious and persistent failure to ensure a compliant operation and because of his ignoring of the warnings not to operate a trailer, I conclude that he does.

7. Decisions

7.1 Revocation of the licence

In the light of the above findings, balancing act and consideration of the Priority Freight and Bryan Haulage questions, I conclude that this licence must be revoked. I revoke it under Sections 26(1)(c)(iii), (f) and (h) and 27(1)(a) of the 1995 Act. I will allow the usual 28 days or so for the operator to wind the business down before the revocation takes effect at 0001 hours on 24 June 2023.

7.2 Disqualification

I have also considered whether to disqualify Mr Khan-Siddiq from holding or obtaining an operator’s licence and from being the director of any company holding or obtaining such a licence. In considering this, I have had regard to paragraph 105 of the Senior Traffic Commissioner’s Statutory Guidance Document No 10. This suggests as a starting point a disqualification of between one and three years for a first public inquiry. As this is Mr Khan-Siddiq’s first inquiry, and as I consider that his failings stem more from ignorance and incompetence rather than a deliberate decision not to comply (the operation of the trailer excepted), I am imposing a 12 month disqualification. Under Section 28 of the 1995 Act, Mr Khan-Siddiq is disqualified from holding or obtaining a licence until 24 June 2024.

Nicholas Denton

Deputy Traffic Commissioner

20 May 2023