Decision

Written decision for TSB Transport Ltd (OD1109755)

Published 22 October 2020

In the West Midlands Traffic Area.

Redacted decision of the Traffic Commissioner for the West Midlands.

1. Decision

The standard national goods vehicle operator’s licence held by TSB Transport Ltd is revoked with effect from 0001 hours on 19 May 2018, pursuant to Sections 26(1)(c)(iii), (e), (f) and 27(1)(a) of the Goods Vehicles (Licensing of Operators) Act 1995 (“the 1995 Act”).

2. Background

2.1 Operator details

TSB Transport Ltd holds a standard national goods vehicle operator’s licence (OD1109755) for two vehicles and two trailers. There is one vehicle and one trailer in possession. The licence was granted in May 2012. The sole director of the company is Jaswinder Kaur Bassi. The nominated transport manager until 28 May 2017 was Karanveer Singh. The transport manager from 1 August 2017 is Bandna Rai.

2.2 Call to public inquiry

In February 2018 I received a report from DVSA vehicle examiner Paul Matthews. His report stated that the operator’s specified vehicle had been stopped on 1 November 2017 and found to be fitted with an AdBlue emulator device. AdBlue is a chemical which reduces nitrogen oxide (NOx) emissions from diesel engines. Its use is essential for many vehicles to meet Euro IV or better emissions standards. The device found had the effect of turning off the use of AdBlue and disabling the warning light on the dashboard. The stated maximum NOx emission levels of the vehicle were thus being far exceeded.

Mr Matthews’ subsequent investigation found that:

1. Jaswinder Bassi’s husband Buta Singh Bassi (who was the driver of the vehicle and also the person who seemed to be in real charge of the company) had paid £650 for the emulator to be fitted. He had been told it was all right to do this if the vehicle did not go into London;

2. there were gaps in the safety inspection records for both vehicle and trailer. The stated six week intervals were not always being respected;

3. the vehicles was not being given any form of metered brake test;

4. driver defect reporting appeared to be only very intermittent;

5. the vehicle had incurred two prohibitions from three encounters, as had the trailer;

6. the MOT first time pass rate over five years was only 50% (national average 72%);

3. Public inquiry

In the light of Mr Matthews’ report, I decided to call the operator to a public inquiry. The call-up letter was sent on 20 March 2018, citing Sections 26(1)(c )(iii), (e ) and (f) and 27(1)(a) and (b) of the 1995 Act. A letter of the same date also called previous transport manager Karanveer Singh to consider his repute, as it was understood at the time that the fitting of the AdBlue emulator pre-dated Ms Rai’s nomination as transport manager.

The public inquiry was held in Birmingham on 19 April 2018. Present were company director Jaswinder Kaur Bassi, her husband Buta Singh Bassi, ex-transport manager Karanveer Singh and DVSA vehicle examiner Paul Matthews. Mr and Mrs Bassi were assisted by a Punjabi interpreter.

3.1 Evidence of Mr and Mrs Bassi

It quickly became apparent that Mrs Bassi was a director in name only. She had not read the call-up letter or VE Matthews’ report; she did not know what AdBlue was; she said that her husband dealt with all the paper work of the company and that she only signed the cheques. I found that she had next to no knowledge of operator licensing and the goods haulage business. She could not say why she was the company director.

Mr Bassi confirmed that the vehicle had had problems with its AdBlue system and that he had been told “by a friend” that it was all right to fit an emulator if the vehicle did not enter London. Mr Bassi declined to identify the “friend”. He confirmed that current transport manager Bandna Rai was not aware that the vehicle had been fitted with the emulator. Mr Bassi explained that the gaps in the trailer safety inspections were because the trailer was not in frequent use. He accepted that there was no record to show that the trailer had been off the road.

I noted that the trailer had been given a prohibition for four loose U bolts on 1 November 2017 and that the most recent safety inspection on that date was the one carried out on 14 July 2017, some 15 weeks previously. If the trailer had been “off-road” during that period, it should have been given an inspection prior to being brought back into use. It had clearly been put back into service in an unroadworthy condition.

I was unable to examine driver defect reports or any tachograph data because the operator had failed to bring the records to the inquiry, despite being explicitly requested to do so.

I asked whether, in the light of VE Matthews’ recommendation, the vehicle had yet been given a roller brake test. Mr Bassi stated that it had one at the annual MOT but not apart from that.

I asked Mr Bassi if he could give me a concrete example of an improvement made since Mr Matthews’ report. He could not. He apologised for the lapses and said that they would not happen again.

3.2 Finances

I examined the bank statements provided by the company and noted that the average balance over the last three months amounted to just under xxxxx, a long way short of the £12,350 necessary to support the licence or even the £7,950 to support just one vehicle. The company was unable to offer any realistic assurance that the situation was likely significantly to improve in the near future. It pointed to the fact that income was regularly coming in, but equally I noted that expenditure was regularly incurred also.

4. Findings

4.1 Financial standing

At no point over the last three months has the company had a closing balance sufficient to support one vehicle, let alone two. As stated above, the average funds available fall far below those necessary to support a standard licence. I have not seen any evidence that there is any prospect of short or medium term improvement. I therefore find that the operator lacks the required financial standing. Revocation of the licence is mandatory under Section 27(1)(a) of the 1995 Act.

4.2 Good repute

The operator has breached the Road Vehicles (Construction and Use) Regulations 1986/1078, which state that no person shall use a vehicle on the road if, in relation to the emission of NOx (amongst other substances), the vehicle does not comply with requirements relating to conformity of production. Interference with the engine management system (ie fitting an AdBlue emulator) means that the vehicle does not conform with the Euro IV requirements applicable to it (as a vehicle registered in 2008). My colleague TC Kevin Rooney commented recently that he regarded the fitting of an emulator as equivalent, for example, to using a magnet to interrupt a tachograph. Each is an act of fraud and each can kill: one just does it more violently and quickly than the other. To these remarks I would add the following: deliberately interfering with vehicles’ NOx management systems so as to make a Euro IV, V or VI vehicle non-compliant with the applicable emissions limits is to undermine the whole purpose of vehicle emissions legislation determined upon by the EU Council of Ministers. This is progressively over time to reduce NOx emissions from the EU’s vehicle parc and therefore to reduce NOx levels in the air. A moment’s reflection should have been enough for Mr Bassi to realise that he was not acting legally: if what he did was permissible (ie to alter a Euro IV engine so that it no longer met Euro IV emissions requirements), there would be absolutely no point in having such standards in the first place.

A reputable operator would not fit such a cheat device. I find that, through this action, the operator has shown that it is not of good repute: revocation of the licence is therefore also mandatory under Section 27(1)(a).

4.3 Other findings

In addition, I make the following findings:

1. the operator has failed to abide by its promise, made when it applied for the licence, that vehicles and trailers would be given a safety inspection every six weeks. The intervals in the vehicle’s inspection schedule since May 2017 were 9, 9, 7.5, 15 and 6 weeks. The trailer’s inspection interval since July 2017 was 15, 8.5, 6 and 6 weeks (Section 26(1)(e ) of the 1995 Act refers). While the trailer may not have been in constant use, it was nevertheless operating on the public road on 1 November 2017 in an unroadworthy condition (four U-bolts loose) on a date when its last safety inspection had taken place more than 15 weeks previously;

2. the operator’s vehicles and trailers have incurred prohibitions (Section 26(1)(c)(iii) of the 1995 Act refers);

3. the operator has failed to fulfil its undertakings i) to ensure that drivers record defects in writing and ii) to ensure that rules relating to drivers’ hours and tachographs are observed (Section 26(1)(f) refers). No evidence of driver defect reports or tachograph analyses over the last six months was presented;

4. the operator has paid insufficient attention to Mr Matthews’ report which highlighted failings in driver defect reporting and in brake testing. There is no evidence that any action has been taken to address these issues.

5. Conclusions

5.1 Operator

It is clear to me that Mr and Mrs Bassi are out of their depth. The company has insufficient working capital; they have failed to appreciate the seriousness of their use of an AdBlue emulator; they have not responded in any concrete way to VE Matthews’ report; and they have failed to appreciate the seriousness of a public inquiry – Mrs Bassi did not read the call-up letter and accompanying brief while Mr Bassi did read them but failed to bring many of the records requested. I have asked myself the “Priority Freight” question of how likely is it that this operator will comply in the future and concluded that, on the evidence before me, it is very unlikely. Neither the nominal nor the de facto director of the company has much understanding of the requirements of a licence holder and the DVSA investigation has not resulted in them thinking it necessary to improve this understanding and address the compliance issues more urgently. The “Bryan Haulage” question of whether the company deserves to go out of business is thus answered in the affirmative. In any event, because the company lacks financial standing and good repute, revocation is mandatory. It will take effect from 0001 hours on 19 May 2018.

5.2 Disqualification of directors

Because of the fitting of an AdBlue cheat device and the otherwise poor compliance described above, I have considered whether to disqualify the nominal and the de facto directors. Jaswinder Kaur Bassi has held herself out to be the sole director of the company without at any time ever having exercised the proper functions of a director. She took no interest even when the company was the subject of a DVSA investigation and was summoned to a public inquiry. She should not be the director of a company holding an HGV operator’s licence.

The de facto director Buta Singh Bassi is an HGV driver and has more knowledge. But he nevertheless proceeded to fit an AdBlue emulator to his vehicle and failed to ensure that the vehicle and trailer were given safety inspections at the stated intervals. The result is a poor prohibition record. There is no evidence that he has kept proper driver defect records or has analysed tachographs correctly (or at all).

I therefore conclude that both directors deserve to be disqualified under Section 28 from holding a licence in the future. In deciding upon the length of the disqualification, I have taken account of paragraph 93 of the STC’s Statutory Guidance Document 10. This posits a starting point of between one and three years for a first public inquiry but a period of between five and ten years for serious cases where an element of falsification is involved. Although there has been an element of falsification here (the use of a cheat device), I have concluded that a two year period of disqualification will suffice in this particular case.

5.3 Transport managers

Karanveer Singh resigned as transport manager in May 2017. The evidence of compliance failures I considered at the inquiry relates mostly to the period after that. I am therefore not taking action against his repute.

I was initially informed that Bandna Rai’s appointment as transport manager occurred after the AdBlue emulator was fitted: she was therefore not called to the public inquiry. However, evidence emerged in the inquiry that her date of appointment may have been some time before the device was fitted. Moreover, the extended intervals between safety inspections and lack of driver defect reports and tachograph analysis cast doubt over whether she is exercising continuous and effective management of the licence. I intend to call her to a further hearing to consider her repute.

Nicholas Denton

Traffic Commissioner

20 April 2018