0.1 IN THE EASTERN TRAFFIC AREA
1. MAAJ AHMED PATEL – PF20223369
2. CONFIRMATION OF THE TRAFFIC COMMISSIONER’S DECISION
3. Background
Maaj Ahmed Patel holds a Restricted Public Service Vehicle Operator’s Licence authorising 1 vehicle only.
There is one Operating Centre at Unit 7, Premier House, 40 Dorothy Road, Leicester LE2 5DP. There is one declared contractor showing on the licensing record: Leicester City Testing, said to be undertaking Preventative Maintenance Inspections of the vehicle at 8-weekly intervals. In evidence it became clear that maintenance work connected with the inspections is being carried out by Humberstone Motors. The operator also claimed that the vehicle was being inspected at 6-weekly intervals; neither of these changes had been notified.
The licence commenced from 16 December 2019, subject to a finance review to be completed in June 2020, restrictions on the use of small and novelty vehicles under this licence and requiring the operator to maintain records in relation to his compliance with the restrictions on a restricted PSV operator, with a review to be completed on or around 30 June 2020.
## Hearing
The Public Inquiry was originally listed on, 20 September 2021. The operator’s wife telephoned the OTC on 2 September 2021 to inquire about interpreter services. She was asked to confirm the request and language in writing. She was also advised that the operator would be required to speak. If the operator wished to be represented, then he should notify the OTC. She was reminded that evidence was due to be lodged by 6 September 2021. The operator eventually requested a Gujarati interpreter, but the tribunal was unable to secure that attendance. The hearing was therefore delayed and took place today, 12 January 2021, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was present and assisted by an interpreter, Rakesh Khambaita. The language is Gujrati.
4. Issues
The public inquiry was called for me to consider whether there were grounds for me to intervene in respect of this licence and specifically by reference to the following sections of the Public Passenger Vehicles Act 1981:
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17(3)(a) – statement to comply with the conditions on the licence.
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17(3)(aa) – undertakings (laws relating to the driving and operation, rules on driver’s hours and tachographs).
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17(3)(d) and (e) – material change with regards to repute and financial standing.
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28 – disqualification.
The operator requires £3,100 to support the licence. In response to a previous request for financial evidence, the operator referred to a lack of operation, that the operator had to pay for insurance for the vehicle and has been struggling with money. The operator confirmed that he receives no income from this operation. He tried to apply for Government support, but this was refused.
He is now employed full-time for Royal Mail. The financial evidence seen previously was in the name of M A Ahmed, and were an electronic copy. The print outs show there was not sufficient to meet the requirements of the licence. He then provided a screen shot: “I have sent a picture of my current balance through my online banking as the bank statement for this month has not yet been generated”, which could not be taken into account.
The operator was required to lodge evidence in support, including financial documentation, initially by 6 September 2021. Additional financial documentation was provided prior to the last hearing date, including a letter from Mrs Patel indicating that she would loan her husband a large part of the sum required. The bank statements produced were not sufficient to meet even the sum required for a restricted licence. The operator therefore sought to rely on availability through a credit card. However, there was some doubt as to the level of money available on a monthly basis. The financial statements submitted before the substantive hearing showed an average above the required sum. His payslips appear to confirm that he continues to meet the other main occupation requirement for this type of licence. There are signs of payments connected to this operation but not much evidence of income.
5. Summary of Evidence
The Driver and Vehicle Standards Agency completed a desk-based assessment of the operation on 5 January 2021, which was marked as unsatisfactory (pages 43 to 50).
The Case Summary attempts to summarise the findings of the Examiner, Alison Smith, which variously recorded the following shortcomings:
* no copy of driving licence were documents produced, so the Examiner undertook a check undertaken on 23 October 2020. This showed that the operator held a D1 entitlement plus DCPC. A driver requires a D1+E entitlement to undertake hire or reward. This was only issued from 2 November 2020.
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systems in place to monitor the driver’s hours were found to be unsatisfactory. A tachomaster device was only ordered on 12 August 2020. The operator produced vehicle unit data for 1 vehicle (S507 KGF), having been locked in with the company card on 25 January 2020.
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Basic infringement reporting was only evidenced from 17 January to 27 March 2020 although the operator failed to produce a driver card. The vehicle unit data had not been downloaded for 6 weeks. The vehicle unit data showed that the vehicle had been used prior to 25 January 2020. It could be seen that the operator’s card had been used during January and February 2020, with omissions during March 2020. The Examiner compared the data with the ‘travel vehicle log’ which confirmed her findings. She explained that there is no derogation for personal use.
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no documents to show working time directive compliance.
The operator claimed in his response that he had not used the vehicle for commercial purposes since 22 March 2020, which accords with the data provided. However, he failed to provide assurances as to future operation and there was no response to the request for further data.
The OTC subsequently wrote to the operator and put him on notice of the potential seriousness of an apparent failure to comply with the requirements of the operator’s licence (pages 51 to 52).
A response sent from the email account of the operator’s wife and dated 5 April 2021, can be found at pages 53 to 55. It refers to trading as ‘Ahmed Travel’. It claims that the first journey was undertaken in January and that continued until the pandemic in March 2020: “I lost all jobs and had to close my business due to the virus. I have not had a single job after that until today which has nearly been 1 year. I have stopped trading. When everything re opened for a while in August I had 1 job then we were back in lockdown. But until today my business is still closed and hoping to reopen soon when we are able to.” In evidence that was confirmed to be August 2020.
The operator claims not to have received some of the DVSA correspondence, but confirms many of the DVSA findings:
“1.I provided them with my driving licence details. I sent a copy of my driving licence in the email
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Full PSV entitlement was given to me in 2019 not in 2020. When I started trading I was in hold of a full PSV licence
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The tacho master was only ordered in august due to the fact that when I started trading in January I was using a manual system to record all hours, and then in march the transport all stopped due to the virus. Then when I was going to start trading again in august I thought before I start trading I will order the tacho machine due to everything being closed for quite a while I was unable to order anything and also I wasn’t trading so I did not need it all those months. But when borris Johnson announced that lock down will start to ease i ordered it thinking I will restart my business and then I will need the tacho machine. But we went into lockdown again so was unable to start. My driver card I have and all card data was produced in the email and I don`t know if I missed the part to send my driver card to yourself but I have it if you require it. And other than me no one Is entitled to drive my vehicle as it is only myself who is insured on my vehicle. Any time when my van was being used without a card is when I used it for my personal use.
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I have not exceeded my working time directive at any time as I worked 30 hours in my main job and was doing on average about 10 hours a week with my psv licence which then all stopped in march as I have been on furlough from my main job since march 2020. And no business in my Psv licence at all until today
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Any infringements found when I did order the tacho and downloaded all data I have not been able to rectify at the moment as I have been closed as a business and have not been operating. But when I start that’s the first thing I will be looking at.”
The operator forwarded documentation which he states was previously provided to DVSA, this amounts to a Vehicle use log for March, February and January 2020 (jobs on 18 and 26 January 2020); an inspection sheet/ brake test sheet – which was impossible to read due to the reproduction; Weekly timetable logging the operator’s 5 hours and 30mins driving; wall planner; diary; digital manual records, ‘infringement sheets’; photograph of the vehicle disc; driver qualification card, driving licence certification of Driver CPC on 29 April 2017 and Driver hours, WTD and Manual Handling Principles course on 14 July 2018. The documents include an explanation of the operation: “My work involves providing a private transport for members of the public to and from airports, day trips with families and other occasions such as weddings, funerals etc. If anyone comes forward I also aim to provide schools with transport for staff members and students to and from educational trips and day trips.”
A dip sampling of the maintenance records, such as they are, produced in advance of the Public Inquiry do not provide much reassurance: SF07 KGJ
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18 November 2021 (showing next inspection due on 30 December 2021) – inspection with brake test recording 56% and 16% and referring again to the off-side front track rod with excessive play but no evidence of rectification. Odometer reading 179361.
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30 September 2021 – inspection with brake test recording 60% and 20% referring again to the off-side front track rod with excessive play, and offside suspension bush deteriorating. Odometer reading 177680.
In response to my questions regarding the recurring defect, the operator suggested that the defect was ‘advisory’ but there was little indication on the records. He then produced a Preventative Maintenance Inspection form dated 4 January 2022. There was a receipt attached for the same date, issued by Leicester City Testing. It recorded three defects requiring repair, which were ticked off and stamped by Humberstone Motors. The declaration of roadworthiness was signed on behalf of Leicester City Testing, but the operator told me in evidence that Humberstone Motors only carried out the repairs the next day. i.e., 5 January 2022 as there was an issue with the track rod length. The declaration was therefore misleading. It was apparent from his reaction, that the operator had not fully comprehended the need to record all the relevant maintenance.
For the sake of completeness, I saw a wall planner for 2021 and 2022, showing inspections, annual test date, insurance, tachograph calibration. There is a pale blue dot for brake testing on the key, but it does not feature on the planner. The operator admitted that he had left this off. However, in his evidence he was unclear what type of brake testing is being used, why there is no reading for a secondary device.
I refer to pages 56 to 99 of the bundle, which were supplied by Mrs Patel, under cover of an email dated 5 April 2021. A vehicle log shows use of that vehicle from 1 to 22 March 2020 on 19 occasions, many on the same day. This is reflected in the low number of driver defect reports, 15 in total, suggesting a daily walk round check. The vehicle is said to have been used twice in January 2020, with two driver reports. The log suggests 9 occasions in February 2020 with the same number of driver reports. There are some tachograph printouts for January and February 2020 at pages 134 to 137. At pages 138 to 142 there are very brief infringement reports apparently prepared using the TachoMaster system. There now appears to be basic compliance, as against the findings of the DVSA assessment
There are inspection records for March 2020 in the bundle, but these are faintly printed. There is no stamp or other identification to suggest which entity has carried out the inspections. As above, whilst there are percentage readings against the service and parking brake items, there is no print-out or other indication as to how these readings were achieved. Inspection records, for instance 20 March 2020 show defects, in that case the rear offside stop lamp and number plate lights, but no rectification. There was no equivalent driver defect report. The inspection dated 9 March 2020 refers to the parking brake and reverse travel, but no other explanation. In the file produced by the operator, I noted that inspection dates leapt from August 2020 to June 2021, and the odometer reading had increased, although the inspection in July refers to miles instead.
There are relatively few driver reports of defects, that on 24 July 2021 refers only to a dirty windscreen. The reports numbers 334610 to 334615 are illegible because the reports appear to have been over-written when completing the next carbonated report. I am concerned to note driver reports dated 15 and 17 September 2021, which refer to the handbrake and turbo valve respectively, attached to an invoice suggesting rectification possibly on 21 September 2021, whilst the odometer reading increased, suggesting operation. The invoice from Humberstone Motors does not refer to a cracked windscreen, which was recorded on the same day as the invoice.
I put questions to the operator seeking to understand why basic requirements of the operator’s licence had not been implemented or only actioned after advice from DVSA. The answer to many of those question was that he did not know before he commenced operations or that he still did not know about the requirements. I was particularly concerned about the apparent ignorance of the requirement to notify, the requirements for brake testing, and the failure to maintain accurate maintenance records including driver defect reporting. I referred to the limited training attended in 2018, but the general impression was of a lack of fitness and awareness. It proved necessary to ask Mr Khambaita to translate the one page ‘Restricted Operator Summary’ produced by the OTC into Gujrati, to illustrate the licence requirements to the operator.
6. Determination
Based on the evidence summarised above and explained to the operator with the assistance of Mr Khambaita, I made the following adverse findings under sections of the Public Passenger Vehicles Act 1981: 17(3)(a) failure to comply with the conditions on the licence to notify me of relevant changes in operations, the availability of finance and maintenance; 17(3)(aa) – undertakings (laws relating to the driving and operation – namely to keep the vehicle in a fit and roadworthy condition, to employ an effective written driver defect reporting system, and to maintain full maintenance records for a period of 15 months, to comply with the rules on driver’s hours and tachographs). I noted that there had been improvements in the latter, but only in response to the DVSA intervention.
I refer to my general impression of the operator’s knowledge and abilities flowing from my questions regarding his own documentation. I am assisted by reference to the leading appeal cases of 2013/007 Redsky Wholesalers Ltd and 2009/225 Priority Freight and proceeded to pose the question: how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime? Put simply, there was too much wrong and, without the apparent knowledge to ensure compliance with the basics, I saw little future for this operation. At this stage the operator indicated that he might wish to surrender this licence but thought it might be better to consider obtaining the services of a CPC holder, in order to obtain a standard operator’s licence. I explained the many hurdles which he would have to overcome. I heard evidence of the type of work he hoped to obtain but that there had been no regular work from December 2021. I took account of Mr Patel’s honesty during the Public Inquiry, his response to DVSA and that this was the first Public Inquiry in deciding not to impose a disqualification. This licence will be revoked from 23:45 on 9 February 2022.
Richard Turfitt
Traffic Commissioner
12 January 2022
