Decision

Written decision for Eluwumi Elumisu Elusade

Published 9 June 2020

In the West Midlands Traffic Area.

Redacted decision of the Traffic Commissioner for the West Midlands.

1. Decision

The application by Eluwumi Elumisu Elusade for the release of vehicle GN55 CJJ, detained on 4 December 2019, is refused. The reasons for this decision are set out below.

2. Background

On 4 December 2019, DVSA traffic examiners impounded two minibuses, GN55 CJJ and YK04 LWH, operated by Eluwumi Elusade. The vehicles were engaged in transporting schoolchildren to Beis Yaakov primary school in north west London.

Mr Elusade had previously held a restricted PSV operator’s licence PF1096035 which had been revoked on 5 October 2016. Records also show that he began the process of applying online for a standard PSV operator’s licence in August 2019 but that the application was not in the event submitted.

A third minibus NH57 YZT operated that day by Mr Elusade was not impounded because there was evidence to show that it was owned by a finance house.

On 26 December Mr Elusade applied for the return of vehicle GN55 CJJ (but not YX04 LWH). The ground for appeal was that he did not know that the vehicle was being, or had been, used in contravention of Section 12 of the Public Passenger Vehicles Act 1981. Mr Elusade stated that he operated on a cost-only basis transporting pupils to an orthodox Jewish school. The operation was part-time, 10 hours per week, with a travelling distance of only 2.5 miles from home to school.

The applicant did not request a hearing, but I arranged to hold one in Birmingham on 21 January 2020.

3. Hearing

3.1 Ownership

Mr Elusade is the registered keeper of vehicle GN55 CJJ and produced evidence in the form of copy of the bill of sale on his mobile phone. As DVSA’s inquiries had shown that there was no finance outstanding on the vehicle and no other claimant had come forward. I was satisfied, on the balance of probability, that Mr Elusade was the owner of the vehicle.

3.2 Evidence of DVSA

For DVSA, traffic examiner Michael Cheeseman made the following points:

1. GN55 CJJ had been picked up by ANPR cameras on 80 occasions and 27 different days over the period 1 November to 5 December 2019. Most of the sightings were in north west London, but there was also a sighting at Luton Airport on 1 December 2019. It was clear that the vehicle was in frequent use;

2. DVSA had written by first class post and recorded delivery to Mr Elusade on 25 November 2019 warning him that he was potentially in breach of the law by operating PSVs for hire and reward. No response had been received;

3. The drivers of the other two minibuses stopped by DVSA had confirmed that they were being paid by Mr Elusade. The operation had all the hallmarks of a hire and reward transport business;

4. Interviewed under caution on 13 December 2019, Mr Elusade had stated that he was operating three vehicles and that he paid for the costs of the operation (fuel, maintenance, insurance etc.). To the question “Do you have or have you ever had an operator’s licence?” he had replied “yes”. To the next question “Is your operator’s licence valid?” he had also replied “yes”. He had then confirmed that he did not have any operator licence discs for the vehicles and, asked to comment on the fact that DVSA records showed no operator’s licence to be in force, he replied “no comment”.

In Mr Cheeseman’s view, the above points provided very strong evidence that Mr Elusade was operating for hire and reward and knew full well that he needed an operator’s licence in order to do so.

3.3 Evidence of Mr Elusade

Mr Elusade made the following points in support of his appeal to have the vehicle returned to him:

1. He was not making any profit from the operation: he had only sought to cover costs;

2. He was operating the minibuses simply to help out the school and the parents: he had a full-time job as a manager for a courier company;

3. He had driven GN55 CJJ to Luton airport on 1 December 2019 on a private journey to take his niece and sister to the airport.

4. He had never received the DVSA’s warning letter of 25 November 2019;

5. He now knew that he had been completely mistaken, but he had genuinely believed that the kind of non-profit school runs that he was doing did not require an operator’s licence.

I asked Mr Elusade how much he charged parents for the transport (his contract was with parents rather than the school). He stated that it was £xxx per month per child. I noted that, given the three minibuses were 16 or 17 seaters, this amounted potentially to some £xxxxx per month during term time. I asked if Mr Elusade had any evidence that costs matched this level of income. Mr Elusade said that insurance was very expensive but was not able to provide concrete evidence of any costs.

I asked Mr Elusade about a document found by DVSA in the vehicle headed “Beis Yaakov Primary School Bus Information”. In a section headed “Additional Information” the leaflet stated that “Wumibus Express also provides additional transportation for events such as Weddings, Parties, Bar Mitzvah’s (sic), Airport Runs, Day Trips anywhere in the UK”. Mr Elusade said that he had thought of running such trips at some stage but had never in fact done so. He had started the process of applying for the necessary standard operator’s licence but had realised that he did not have the required financial standing and so had not gone through with the application.

4. Findings

I find that Mr Elusade had actual knowledge that he was operating without a licence contrary to Section 12 of the 1981 Act. The reasons l make such a finding are as follows:

1. Mr Elusade previously held an operator’s licence so was not an ingenue in the business;

2. He had started the application process for a licence in August 2019 only to abandon it when he realised he did not have sufficient financial resources. Why would he apply for a licence if he genuinely thought he did not require one?

3. Mr Elusade had been informed by DVSA letter of 25 November that he appeared to be operating without the necessary licence. The letter was sent by both first class post and recorded delivery. I conclude that he did in fact receive the letter and so must have known that he could not operate for hire and reward without a licence. The letter made clear that the hire and reward condition would be fulfilled if payment was made for carriage. It also stated that continued operation for hire and reward without a licence would be unlawful;

4. Asked in interview by DVSA if he had an operator’s licence, Mr Elusade stated that he did. If he had genuinely believed that no licence was required for his mode of operation, he would surely have told DVSA that he did not. Mr Elusade was unable to provide an explanation at the hearing as to why he had claimed to have an operator’s licence when he did not;

5. The income received from the operation of the three minibuses, £xxxx per month for the 16 (named) children carried by GN55 CJJ alone, is not compatible with Mr Elusade’s claim that he was only covering costs. Mr Elusade was unable to produce any evidence of what his costs actually were;

Mr Elusade was clearly advertising general transport services to airports, weddings etc. I am not persuaded that he was limiting his activity to supposedly non-profit school runs.

I am fully satisfied that Mr Elusade was perfectly aware that he needed an operator’s licence. This was why he sought to mislead DVSA by claiming he had one. His claim that he was operating on a cost basis only and believed this to be permissible without an operator’s licence has not been substantiated.

I note in passing that DVSA also found that both Mr Elusade and one of the other minibus drivers that day lacked the correct entitlement to drive minibuses for hire and reward. All three of the minibuses received prohibitions for being unroadworthy: two minibuses received immediate prohibitions and the other one received a delayed prohibition. In DVSA’s judgement, the condition of the vehicles, together with the fact that they were being driven by drivers without the qualification to do so, posed a real risk to road safety. These safety issues are not central to the question of impounding but they do suggest that Mr Elusade takes a less than rigorous approach to compliance with the law.

5. Conclusion

I therefore conclude that the ground for application for the return of the vehicle is not made out: the application is thus refused. This decision will be notified to the applicant and to DVSA and it will be for DVSA to dispose of the vehicle once the period for appeal against this decision has ended.

Nick Denton

Traffic Commissioner

22 January 2020