Case No. UKUT-00274-(AAC)

(the emphasis is the OTC’s).4.It does not appear to us that the attendance form was completed and returned. Neither Mr Aftab nor anyone else who might have been able to act for the operator provided any financial evidence or any of the other written evidence which the TC had required.5.On 15 March 2022 the OTC received an email which had been sent to it by Mr Aftab. We have not been provided with a copy of the email, but it is apparent from what is said in other documentation that Mr Aftab asserted he had developed a high temperature and symptoms of a cold and expressed a willingness to attend the “next interview”. He did not, in terms, request a postponement of the PI but it appears clear that either he was seeking such a postponement, or he was, given his reference to the “next interview”, simply assuming such would be granted. He seems to have adopted a somewhat cavalier approach. No medical evidence was provided and there was no indication on the part of Mr Aftab that he had, at that stage, attempted to seek any medical evidence in support of the postponement request. There is no indication in the documentation before us that the implicit postponement request (and we accept that is what it amounted to) made by Mr Aftab was considered prior to the commencement of the PI or that, if it was so considered, any decision upon it had been communicated. But the PI proceeded, in the absence of Mr Aftab (who failed to attend) or any other representative for the operator, on the scheduled date.6.Faced with non-attendance, the TC decided matters on the basis of the written material before him which, of course, was not supplemented by anything sent by or on behalf of the operator or by Mr Aftab notwithstanding the content of the call-up letter. In explaining why he was proceeding the TC said this: “Public inquiry4.I was very concerned by the content of DVSA’s reports and decided to call the operator to a public inquiry. The call-up letter was sent on 14 February 2022, citing Section 26(1)(a), (b), (c)(iii), (e), (f) and (h) of the 1995 Act. The inquiry was scheduled to take place in Birmingham on 17 March 2022. The call-up letter made clear to the operator that it must submit maintenance and drivers’ hours records, together with evidence of sufficient funds for three vehicles, to my office by 10 March 2022 at the latest (seven days before the public inquiry).5.The operator failed to submit any records or evidence, either by 10 March or later. At 1631 hours on 15 March (i.e. some 40 hours before the inquiry was due to commence) my clerk received an email from director Kamran Aftab, saying that he would not be attending as he had been suffering with a high temperature and a cold for a couple of days and did not feel he would be well enough to attend by 17 March. No evidence of his condition was provided. Mr Aftab said that he would ensure that “I am fully able to attend the next interview”.6.The use of the word “interview” by Mr Aftab suggested to me that he did not fully appreciate the seriousness of the public inquiry process, and that he might consider the inquiry to be akin to an interview with DVSA (he had twice postponed deadlines for supplying documents to DVSA and once postponed a scheduled interview with them). However, the call-up letter was quite clear about the seriousness of the issues and of the public inquiry process. The fact that Mr Aftab had not bothered to submit any evidence of funds or any maintenance and drivers’ hours records by the deadline of 10 March also suggested to me that he was insouciant about the inquiry process. A temperature and cold for “a couple of days” prior to 15 March should not have prevented him from submitting the requested records by 10 March.7.I therefore decided to proceed with the public inquiry and consider the evidence on the basis of the papers before me”.7. Having considered matters the TC made these findings; “Findings 8.After having considered the evidence, I make the following findings.i) the operator has failed to demonstrate that it has sufficient financial resources to support the maintenance of its vehicles. No evidence of finances has been submitted (Sections 13D and 26(1)(h) of the 1995 Act refer);ii) the operator’s vehicles have been parked when not in use at a place other than the authorised operating centre (Section 26 (1)(a) refers). It is wholly unacceptable for vehicles to be parked on yellow lines and on the pavement. Had I been aware of the operator’s need to park vehicles on the public road during the day while the builder’s yard was operational, I would never have granted authority for this operating centre.iii) the operator’s vehicle has received prohibitions (Section 26(1)(c)(iii) refers). A vehicle was given an immediate prohibition for an illegal tyre and a delayed prohibition for an ABS fault in December 2021;iv) the operator has failed to honour its promise, given on application, that vehicles would be given safety inspections every six weeks (Section 26 (1)(e) refers). Six-week intervals were exceeded in several cases and the failure to present up-to-date records to the inquiry have prevented me from assessing the current picture.v) the operator has failed to fulfil its undertaking to ensure that drivers report defects in writing. Drivers appear to be simply ticking boxes and driving off, missing obvious defects with their vehicle;vi)the operator has failed to fulfil its undertaking to keep vehicles fit and serviceable. A 67% MOT failure rate shows that vehicles are frequently being operated in an unroadworthy condition;vii) the operator has failed to fulfil its undertaking to ensure that the rules relating to drivers’ hours and tachographs are observed. It is clear that Mr Aftab had no understanding of these rules and took no trouble to find out what they were. Although the first digital tachograph vehicle was specified in August 2018, no vehicle units were locked in until a few days before TE Cox’s scheduled visit in October 2021. No downloads from the vehicle units were ever carried out. No downloads from driver cards could be evidence until 27 July 2021, after DVSA first asked for drivers’ hours records. I was not persuaded by Mr Aftab’s claim to have downloaded driver cards before this: if he had been doing so he would have spotted that the weekly work schedule of one driver was clearly incompatible with the rules on weekly rest”.8.The TC then reached this somewhat coruscating conclusion:“9.It is clear from the above findings that the company and its director Kamran Aftab have ventured into the highly regulated world of HGV operator licencing without the slightest idea of what this involves. Mr Aftab signed the application form in which he undertook to ensure compliance with rules relating to maintenance of vehicles and drivers’ hours rules, but in the event did nothing to ensure that these undertakings were carried out. The result has been widespread non-compliance over the entire life of the licence. This has posed a significant danger to road safety and has constituted grossly unfair competition against compliant operators”.9.The TC’s written decision was sent to the operator and Mr Aftab on 17 March 2022. The letter contained an explanation as to the availability of a right of appeal to the Upper Tribunal.10.On 22 March 2022 Mr Aftab obtained a letter written by his GP. The letter listed what were said to be Mr Aftab’s “current medical conditions” as follows:“