Case No. UKUT-00148-(AAC)

2.The Traffic Commissioner’s written decision provides reasons for the revocation of the Appellant’s operator’s licence. It followed a hearing that took place on 11 November 2021 (“the Public Inquiry”). There was an earlier hearing that took place on 06 October 2021, which did not relate to the Appellant but only in relation to a related company Titan Haulage Ltd, as there was not enough time for the Appellant’s case to be heard on that date. 3.The prior factual background setting out the procedure leading to this appeal is contained in the Traffic Commissioner’s written decision and the relevant case summary issued with the brief for the Public Inquiry. 4.Prior to the Public Inquiry (or ‘PI’) the office of the TC wrote to the directors of the Appellant in a calling in letter dated 25 August 2021 explaining the reasons for holding the PI. The letter set out the issues to be considered at the hearing as follows:‘Specifically, the issues of concern to the Traffic Commissioner are that it appears:a)You have breached the conditions on your licence, namely that you failed to notify a change of directors within 28 days;b)Since the licence was issued, there has been a material change in the circumstances of its holder.The Traffic Commissioner will consider the possible links with Titan Haulage Ltd who have specified vehicle KX64 TKT on their application…Explanations will be sought for why the registered keeper of both vehicles currently specified on this licence ….is Kwiiikk Transport Ltd, a company of which the director is Rajinder Aujla. The Traffic Commissioner will consider Armarjit Singh Aujla’s addition the licence as a director in light of his previous licence history.Because of the matters listed above, the Traffic Commissioner is also concerned that the company may not be of good repute, be of the appropriate financial standing or meet the requirements of professional competence……5.We accept the summary of issues to be decided at the PI contained within the ‘Background’ section of the Appellant’s grounds of appeal as below: “The only issues that the Appellant was called to the Public Inquiry for were; 1) That they have breached conditions of their licence, namely that [they] failed to notify a change of directors within 28 days (section 26 (1) (b));2) That there has been a material change in the circumstances of the holder (section 26 (1) (h));3) Possible links with Titan Haulage” 6.It is important to note that, following the PI, the Traffic Commissioner made the decision to revoke the Appellant’s licence under sections 26 and 27 the Goods Vehicles (Licensing of Operators) Act 1995 on the grounds set out at paragraphs 1-3 of the decision dated 30 December 2021: “1. Pursuant to adverse findings under Section 26(1)(b), (e), (f) and (h) of the Goods Vehicle (Licensing of Operators) Act 1995 and Section 27(1)(a) of the 1995 Act the Operator no longer meets the requirements of Section 13A(2) of the said Act - good repute. Accordingly, Licence OF2010669 is revoked with effect from 23:45 on 28 February 2022.2. No direction is made under Section 28 of the 1995 Act.3. The good repute of Transport Manager Ms Beant Kaur is severely tarnished but not lost.”7.The TC set out the background to the PI at paragraphs 4-7 of the decision:4. The full history is set out in the Public Inquiry bundle case summary. On 8 June 2020 Mr Amarjit Singh Aujla became a director and majority shareholder of RAM Logistics Ltd. Mr Gurpinder Singh was also a director from the 1 February 2020 but formally resigned on 21 September 2021. Mr Aujla was given self-service access to VOL by the RAM on 16 June 2020 but his appointment was not added to VOL until 28 September 2020, i.e. two months late.5. In 2013 Mr Aujla was a director of a company that had its Licence revoked, and he was disqualified from holding that position in any entity for two years ending on 17 August 2015. The decision in relation to Mr Aujla in 2013 included reference to Mr Aujla’s gross and repeated deception in operating for hire and reward whilst holding a restricted licence. In November 2018 Kwiiikk Transport Ltd was called to a Public Inquiry. The sole director is Mr Aujla’s wife and its then transport manger, his daughter. One of the purposes of the Hearing was to consider Mr Aujla’s involvement in the business. As part of the Inquiry Mr Aujla made an application for his good repute to be restored so that he could become a director in the family businesses (which at this time were Kwiiikk Transport Ltd and Titan Haulage Ltd). The application to find good repute restored was refused. The Deputy Traffic Commissioner expressed concern at a conflict of evidence, namely the Transport Manager said Mr Aujla was driving full time for Kwiiikk Transport Ltd, but Mr Aujla said he was driving for Titan Haulage Ltd. Further the Deputy Traffic Commissioner noted that no real evidence had been produced in terms of demonstrating now lawful behaviours.6. Whilst processing an application made by Titan Haulage Ltd, OH2036888, it was noted that a vehicle specified on the application, KX64 TKT was currently specified on OF2010669 RAM Logistics Ltd from 23 July 2021. A registered keeper check showed the current keeper was Kwiiikk Transport Ltd from 6 March 2020. The vehicle was previously specified on Titan Haulage Ltd, OK1133764 from 6 June 2020 to 23 July 2021 and OF2010804 from 28 February 2020 to 6 June 2020. KX64 TKZ specified on the licence for RAM Logistics Ltd from 20 April 2021 was previously specified on Titan Haulage Ltd, OF2010804, from 5 July 2020 to 20 April 2021 & 2 May 2019 to 31 May 2019 and on licence OF1140458 Kwiiikk Transport Ltd from 31 May 2019 to 17 June 2020. A registered keeper check showed that Kwiiikk Transport Ltd from 7 May 2019. It was noted that vehicle EJ14 CZT, specified on the RAM Logistics Ltd Licence from 6 August 2018 until 23 July 2021 and is now specified on Kwiiikk Transport Ltd, OF1140458 from 23 July 2021.7. I decided to call RAM Logistics Ltd to a Public Inquiry alongside Titan Haulage Ltd to ascertain whether everything was arms length and assess operator licensing compliance. Considering Mr Aujla’s history, the Transport Manager Ms Kaur was also called to the Public Inquiry to assess compliance with the conditions and undertakings on the Licence…..’8.The TC stated that the issues in the case were as follows at paragraphs 12 and 14 of the decision:‘Issues12. There was no formal barrier to Mr Aujla becoming a statutory director of the Operator in June 2020. However, having had his good repute restoration application refused in 2018 Mr Aujla accepted at the Public Inquiry that he should have written in stating a positive case to provide assurances to compliance rather than just being added to VOL. Considering Mr Aujla's history, compliance since June 2020 is essential for two reasons. Firstly, it is a legal requirement and secondly the outcomes will demonstrate whether Mr Aujla now has a positive approach to transparency and lawful behaviours. It follows that the Transport Manager’s role since her appointment is a key part of that assessment. At the conclusion of my balancing exercise, it is for me to determine whether any action is appropriate.’..Consideration and Findings14. At the start of the hearing on 11 November 2021, I gave a steer as to where I would want oral evidence to expand upon the written representations. I then adjourned for a period for Miss Evans to take instructions. I did so out of fairness to Mr Aujla to ensure that his evidence would not have to be interrupted as issues arose. I was satisfied on financial standing but the areas to be expanded upon were: -• A focus on how it is said that trust has been rebuilt. In November 2018 good repute was not regained. In 2018 a personal application was made for good repute to be restored but in 2020 Mr Aujla simply added his name to VOL.• The maintenance records are very similar to Titan Haulage Ltd namely, the maintenance contractor and drivers are picking up very few defects, erratic brake testing and no maintenance contractor ID.• Concerns with the driver defect sheets and the authenticity of defects recorded and whether the defects were repaired.• The driver records indicate that Mr Padda was a full time driver inducted into RAM on the 20 September 2020 but it is clear that he is driving across all family businesses, for example week commencing 5 April 2021 he is driving for Titan and Kwiiikk; week commencing 22 March 2021 he is driving for Titan all week and week commencing 29 March he is driving for Titan for four days and RAM only for one day.• From all the records sent for the Public Inquiry there is very little evidence that they have been touched or even seen by the Transport Manager and therefore I need to understand how Mr Aujla and Ms Kaur work together.’9.The TC then made the following relevant findings in the decision:16. On balance on this aspect, I am prepared to give Mr Aujla the benefit of the doubt. Since Traffic Commissioner Denton's decision, he did make a positive attempt for a finding of good repute regained in 2018. It failed but that was 18 months before becoming a director of RAM. As a matter of law Mr Aujla had served his disqualification period and therefore he was entitled to become a director of RAM, albeit it may put the Operator’s Licence in some jeopardy. Further Mr Aujla is correct that by adding his name to VOL his history should have become apparent. For some reason a director questionnaire did not issue and therefore the further background checks did not happen at that point.17. Regrettably when it comes to the undertaking to ensure vehicles are always kept in a roadworthy condition the picture is disappointing……..20. I now turn to the driver defect sheets for this vehicle which raised several concerns…..21.I have a driver defect sheet which has an unclear date due to the staple but has an odometer reading of 695764. The original fault is crossed out with some vigour and has written on it "reported to boss”. On the check sheet part at the top of that defect sheet the cross is next to tyres and wheel fixings suggesting that is where the fault was before the narrative was crossed out. The revised fault is said to be an ad blue fault. We have the same scenario on 13 August 2021 at odometer reading 695732. This denotes a lack of transparency and a potential attempt to rewrite the defect history of the vehicle. Mr Aujla told the Inquiry that he had missed these crossings out. They are obvious. The only way they can be ‘missed’ is if the sheets are not checked at all. Either scenario - not checking or deliberately amending without explanation - is unacceptable because it is a significant failing in the maintenance system.22. In relation to its drivers, Mr Aujla told the Inquiry that when RAM does not have sufficient work the drivers are free to drive elsewhere. Mr Aujla originally said that available hours are checked when they start work for RAM again. He then changed this to admit there was no actual check just ‘word of mouth’. I am promised that this would be checked in future but this his area causes me real concern. One of the reasons I am told I can trust Mr Aujla moving forward is because of the local day shift only nature of the Tarmac work. However, its drivers are working for other family companies and not just day shift. By way of example, week commencing 5/4/21 Mr Padda drove for Kwiiikk Transport (wife's company) Tuesday, Wednesday/Thursday and Friday Saturday overnight for Titan (daughter’s company) and Sunday for Kwiik. Without proper checking there is a real risk that Mr Padda may have presented for work with RAM outside available hours. Similarly, Driver Rai drove for Kwiiikk week commencing 16 August 2021 with no check on his availability when he returned to RAM. This poses a real risk to road safety.…25. There are a number of positives which indicate an improved approach by Mr Aujla supported by Ms Kaur (on the traffic side only). These are: -• There is formal vehicle only hire rental agreements between Kwiiikk and RAM.• No prohibitions have been issued (albeit there is no evidence of any roadside encounters, which have been limited in scope due to COVID challenges for the Enforcement Agency).• One MOT which was a straight pass.• A change in maintenance contractor with a workshop and roller brake test facility. This has limited weight as I have not seen any of its paperwork save for one roller brake test.• Evidence of tool box talks on a number of topics for drivers.• A missing mileage report was produced, and any missing mileage correlates with maintenance and repair documentation in the vehicle folders.• Mr Aujla undertook a two day transport manager CPC refresher at the end of October 2020.• Mr Aujla did the same course with a different provider on 3 & 4 November 2021.• A transport consultant had been engaged to assist.• An audit undertaking for 6 months is offered.26. This was Mr Aujla’s opportunity to demonstrate that he has changed his approach away from gross and repeated deception to compliance. Considering Mr Aujla’s history there are a few aggravating features to which I give considerable weight:• Enabling the transport manager to not be involved in the maintenance side of the transport operations.• Safety critical deficiencies in the maintenance systems including the cited failings around brake testing, driver defect audit and lack of a robust retorque system.• Attempts to mislead the Inquiry of checking drivers hours availability after working for other Operators.27. There is no good reason for any of the failings. Mr Aujla knew what was required after the 2018 decision. Mr Aujla has failed to demonstrate compliance to a significant degree in crucial areas of safety. The positives cannot outweigh this. Indeed, these failings happened despite Mr Aujla undertaking additional training in 2020 and knowing what “good" looks like. This means I give very limited weight that the further training in November 2021 will improve things. I am left with untested promises which is disappointing after operating for over a year. It follows that when I pose the question do I trust the Operator/ Mr Aujla to be compliant moving forward the answer is no. The Operator does deserve to be put out of business and revocation cannot be disproportionate in the circumstances of this case. The maintenance system and the lack of effective driver checks after third party driving made this Operator an accident waiting to happen. Accordingly, I have reached the decision set out in paragraph 1 above.’