Decision

Written decision for Thandi Coaches (Red) Ltd (PD0000154)

Updated 1 November 2021

West Midlands Traffic Area.

Redacted decision of the Traffic Commissioner.

Public Inquiry held in Birmingham on 16 September 2020.

Operator: Thandi Coaches (Red) Ltd (PD0000154).

1. Decision

The licence held by Thandi Coaches (Red) Ltd is revoked with effect from 0001 hours on 1 January 2021. The revocation is pursuant to Sections 17(1)(a) and (b) and 17(3)(aa) of the Public Passenger Vehicles Act 1981 (“the 1981 Act”).

The good repute of transport manager Amardeep Thandi is lost and he is disqualified for a period of 12 months, from 1 January 2021 until 1 January 2022, pursuant to Schedule 3 of the 1981 Act, from acting as a transport manager under any operator’s licence.

2. Background

Thandi Coaches (Red) Ltd (“Thandi”) holds a standard international PSV operator’s licence PD0000154 authorising 32 vehicles. The licence was granted in 1992. The directors of the company are Ravinder Soomal and Amardeep Thandi. The nominated transport manager on the licence is Amardeep Thandi.

2.1 DVSA reports

In August 2020 I received a report from DVSA traffic examiner Tracy Love of an investigation she had carried out into Thandi Coaches (Red) Ltd from October 2019 onwards. Her report stated that:

1. the company’s name had been changed from Evergreen Coaches Ltd to Thandi Coaches (Red) Ltd in April 2019, but when she had visited in October 2019 the vehicle discs were all still in the Evergreen name. This material change was not communicated to the traffic commissioner’s office until after her visit;

2. there were numerous instances of drivers driving without a tachograpoh card inserted into the tachograph unit;

3. there were no records of who had driven which vehicle when, so it was difficult to identify the drivers responsible;

4. there were instances of drivers being sent on 12-day rule tours without taking sufficient rest before or afterwards to qualify for this;

5. most drivers were failing to record (as “other work”) trips to and from vehicles away from base;

6. transport manager and director Amardeep Thandi also drove from time to time but never recorded any of his “other work” as transport manager and director;

7. digital downloads were not always being carried out within the legally required intervals;

8. many analogue charts were missing;

9. proper analysis of drivers’ hours was not being conducted;

10. drivers were not disciplined if they committed infringements.

3. Public inquiry

Concerned by this report, I decided to call the company and the transport manager to a public inquiry, and 11 drivers to parallel driver conduct hearings. Call-up letters were issued on 12 August 2020 and the inquiry took place in Birmingham on 16 September 2020. Amardeep Thandi and Ravinder Soomal attended: the company was represented by James Backhouse, solicitor, of Backhouse Jones.

3.1 Financial standing

In advance of the inquiry Mr Backhouse submitted evidence of finances in the form of bank statements from two accounts covering the period 1 July to 8 September 2020. The average amount available to the company over this period was just under £xxxx, far short of the £145,950 necessary to support a licence for 32 vehicles. Mr Backhouse’s covering letter stated that the company’s financial situation was a “perfect example of the profound effect of the COVID-19 enforced lockdown on private sector SME coach and bus operators”. Mr Backhouse acknowledged that the company was not in a position, “as a direct result of the COVID-19 lockdown, to demonstrate compliance with the [financial standing] requirement.” A 12 month period of grace in which to re-establish the financial position was requested. Now that the national lockdown had ended the company was operating a peak requirement of 20 (rather than the three during lockdown) and was generating more income. Meanwhile the company was being funded by its directors/shareholders.

At the inquiry, I said that I was sympathetic to such requests. However, I would like to see evidence of the company’s financial situation over the period 1 December 2019 to 29 February 2020, before the COVID crisis broke, to satisfy myself that the company’s poor financial situation was genuinely a result of the pandemic.

Some days after the inquiry, on 25 September 2020, Mr Backhouse submitted evidence of finances before the March 2020 pandemic lockdown. Bank statements over the period 30 November 2019 to 29 February 2020 in fact showed only an average of some £xxxx. This did not accord with the picture presented to me of an operator whose poor financial situation was solely due to COVID. Mr Backhouse also attached to his email:

1. an extract from a record at the Land Registry showing that Amardeep Thandi was the xxxx owner of a property which had been purchased for £xxxxx in 1999;

2. a letter from the company’s accountants stating that the company’s capital and reserves stood at £xxxxxx on 31 August 2019.

3.2 Drivers’ hours

On the subject of the shortcomings in the company’s drivers’ hours planning and oversight, Mr Backhouse made the following points:

1. the company had been using the Aquarius system for analysing drivers’ hours. Amardeep Thandi had found the system difficult to understand. The company had now moved to Trutac;

2. the nature of the company’s operations, with coaches meeting each other en route at hubs and transferring passengers to each other, had been excessively complex. Operations had now been scaled back and simplified;

3. a 2018 DVSA traffic examiner report had given the operator a satisfactory marking, but it was accepted that in 2019 things had deteriorated. Amardeep Thandi had not managed drivers’ hours well: as director and transport manager he had been trying to do too much;

4. a new cohort of peripatetic drivers had created a management challenge which was not met;

5. in the new scaled back and simplified operation drivers’ hours infringements rates were low at 2%;

6. the specialist consultancy Foster Tachograph was being brought in to deliver drivers’ hours training to all drivers by 31 December 2020;

7. the company would offer an undertaking to be audited by September 2021;

8. a new transport manager would be joining the company in the New Year [on 11 January 2021, I was later informed];

9. Amardeep Thandi’s performance as a transport manager had been poor but he had not been dishonest. His repute was tarnished perhaps but he did not deserve to lose it entirely.

4. Findings

After having considered the evidence I make the following findings:

1. the company does not have the required financial standing (Section 17(1)(a) of the 1981 Act refers). Bank statements provided for both the periods 1 December 2019 to 29 February 2020 and for 1 July to 8 September 2020 show average funds far below those necessary to support 32 vehicles. Indeed, even during the best weeks in these periods they are sufficient only to support some two to three vehicles. Although the company’s accountants state that capital and reserves stood at £xxxxxx on 31 August 2019 I note that the accounts are abridged and unaudited and do not contain information from the company’s profit and loss account. The accounts being unaudited, I cannot take them into consideration. Nor can I take into account evidence as to property jointly owned by Amardeep Thandi, as it is not in the company’s name. The Upper Tribunal has stated that that an operator should consistently have enough money available for the financial standing requirement to be satisfied (2012/017 NCF (Leicester) Ltd). Although I am sympathetic to operators whose finances have been damaged by the loss of income resulting from the COVID-19 pandemic, it is clear that for a considerable period before the COVID crisis Thandi was already far short of being able to demonstrate appropriate financial standing. I am not therefore prepared to allow a period of grace in which to re-establish financial standing;

2. the operator has failed to fulfil its undertaking to ensure the observance of rules relating to drivers’ hours and tachographs (Section 17(3)(aa) of the 1981 Act refers). I find that oversight of drivers’ hours throughout 2019 was largely non-existent. Drivers were assigned to tours which they were not legally able to carry out; drivers drove without cards, undetected by the company; drivers’ frequent trips to and from coaches away from their base were not recorded; the transport manager did not understand how to use the tachograph analysis system used by the company; digital downloads were not being done at the correct intervals; and analogue charts were missing;

3. transport manager Amardeep Thandi has lost his good repute (Section 17(1)(b) refers). In reaching this conclusion, I asked myself what I would expect of a reputable transport manager in charge of a licence of 32 vehicles with at least 20 vehicles operational. Whilst I accept that the chosen pattern of service was a complex one, I would have expected the transport manager to exercise close and effective management of drivers’ hours accordingly. The fact that he was using an analysis system he did not understand, was failing to plan for timely downloads, failing to identify driving without a card, failing to see that drivers were being scheduled for duties they could not legally carry out, failing to ensure that drivers recorded as “other work” journeys to and from vehicles away from base (indeed, failing himself to record “other work”), and failing to educate or discipline drivers whose infringements were detected, leads me to conclude that Mr Thandi fell far short of the standards and performance expected of a reputable transport manager. Indeed, he presided over a chaotic operation in which no real control of drivers’ hours was being exercised at all. This was a substantial coach operation, carrying passengers on inter-city routes and international tours: the passengers (and other road users) deserved better;

4. because transport manager Amardeep Thandi lacks good repute and can no longer act as a transport manager, it follows that the company lacks professional competence (Section 17(1)(a) refers).

5. Decisions

As I have found that the company lacks both professional competence and financial standing, revocation of the licence is mandatory under Section 17(1)(a) and (b) of the 1981 Act. The revocation will take effect at 0001 hours on 1 January 2021, to give the operator time to give the various advance notifications to passengers and contracting authorities.

5.1 Disqualification – transport manager

As Amardeep Thandi has lost his good repute, I must also disqualify him under Schedule 3 to the 1981 Act. I accept Mr Backhouse’s statement that Mr Thandi has not been dishonest, so I am imposing a relatively mild disqualification period of 12 months, from 1 January 2021 to 1 January 2022. Mr Thandi should use this period to acquire greater knowledge of tachograph and drivers’ hours rules and how to manage them if he wants to act as a transport manager again. But he should not seek to combine the roles of director and transport manager in the future.

5.2 Operator

I have decided not to make a disqualification order against the company or its directors. But any future application involving any of these persons must: demonstrate an adequately capitalised business for the number of vehicles applied for; nominate a transport manager whose full attention will be on compliance (and not on any director duties); present a convincing account of how the company intends to ensure the observance of rules relating to drivers’ hours and tachographs.

Nicholas Denton

Traffic Commissioner

2 November 2020