Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 398 (AAC)

Fecha: 10-Oct-2024

The TC’s written decision

The TC’s written decision

The “background” section of the TC’s written decision included the following:

(a)

Excell Logistics Ltd held a standard operator’s licence to operate one vehicle and one trailer. Miss Kufandirori was its sole director. She was, effectively, the operator

(b)

The licence was granted on 7 November 2021. At the time, Anthony Foster was the nominated transport manager. He resigned in November 2022. In January 2023, after a period of grace, Danial Saleh Izadkhast (“Mr Saleh”) was appointed transport manager

(c)

In May 2023 Excell Logistics Ltd applied to increase authorisation from one to four vehicles. It was informed (by the Office of the TC (“OTC”)) that its bank statements showed insufficient funds to support the application

(d)

On 27 June 2023, OTC granted Excell Logistics Ltd a “time limited interim” licence for four vehicles; there was a signed commitment by Excell Logistics Ltd and Miss Kufandirori to supply financial information to support the four-vehicle authorisation, by 26 September 2023

(e)

On 1 August 2023 Excell Logistics Ltd withdrew its variation application via OTC’s on-line system

(f)

On 5 October 2023 OTC wrote to Excell Logistics Ltd referring to the withdrawn variation application and stating that the TC found “no persuasive reason to reinstate” the application or to “grant any type of interim licence” given Excell Logistics Ltd’s lack of financial standing and evidence of its having been “operating without a licence, due to the Time Limited Interim ceasing to exist when the variation application was withdrawn”. The letter noted “no genuine link” between Excell Logistics Ltd and Mr Saleh, its transport manager. It said that the TC had decided to convene a public inquiry to consider “your repute and professional competence”

(g)

On 24 October 2023 a vehicle operated on behalf of Excell Logistics Ltd was stopped by DVSA. The vehicle was not displaying an operator’s licence and was not specified on any operator's licence. The driver “admitted” that a second vehicle was in use and that the two vehicles had been used from August through to the stop date

(h)

Mr Saleh resigned as Excell Logistics Ltd’s transport manager in late October. Excell Logistics Ltd said that AS Miles Consulting Ltd had been engaged to provide compliance and support, based on which OTC granted a "period of grace”

(i)

Miss Kufandirori was interviewed under caution on 22 November 2023

(j)

Excell Logistics Ltd was called to public inquiry by letter of 4 December 2023, as a result of “unauthorised vehicle use” and “in the absence of professional competence”; Excell Logistics Ltd and Miss Kufandirori were also called in respect of good repute under s13A

(k)

On 24 December 2023 OTC received notification from AS Miles that they had “withdrawn their support on failing to get the ‘level of commitment from Babrah Kufandirori that we require, especially in light of the considerable amount of work that was required’.”

The TC’s written decision included the following under the heading “The public inquiry”:

(a)

Miss Kufandirori attended the public inquiry, represented by a solicitor

(b)

Mr Saleh attended the public inquiry “to answer the call-up letter issued in respect of his good repute as a transport manager”

(c)

The TC stated that prior to the hearing, he received maintenance and driver defect documentation from Excell Logistics Ltd and financial statements, as well as a statement from Miss Kufandirori

(d)

Paragraph 17 of the written decision stated: “Mr Saleh produced compliance documents from his time as transport manager and a statement dated 26 October 2023 explaining the reasons for his resignation”

(e)

The TC stated that he heard evidence from Miss Kufandirori and Mr Saleh, and representations from the solicitor acting for the appellants.

The TC’s written decision made findings in the section headed “Findings on the evidence”, including the following:

(a)

Excell Logistics Ltd knew that it was not authorised to use a certain vehicle (“VehicleX”) on 24 October 2023; that vehicle had been used in August, September and October without being specified on Excell Logistics Ltd’s licence; Miss Kufandirori’s initial statement in the interview that the use of that vehicle was to cover another vehicle (“VehicleY”) being “not on the road” was patently untrue;

(b)

Miss Kufandirori was not honest with the DVSA traffic examiner in the interview on 22 November 2023. She stated that only one vehicle was in use on the 24 October 2023 despite the driver admitting that Vehicle Y was in use on that date and ANPR evidence confirming its use on numerous dates in October;

(c)

OTC’s record clearly showed a “digital fingerprint” for every password controlled entry and stated that the withdrawal of Excell Logistics Ltd’s variation application was done by Miss Kufandirori on 1 August 2023 at 21.56. It was Miss Kufandirori who withdrew the application online on this date;

(d)

Miss Kufandirori’s commitments as a single parent and a full-time social worker left the TC in considerable doubt as to her ability to run a transport operation of any size, let alone the applied-for number of 4 vehicles. Miss Kufandirori’s evidence at the public inquiry gave the TC no reassurance; Miss Kufandirori’s continued reliance on consultant transport managers, whose role tends to be reactive rather than proactive, left the TC in grave doubt as to who, if anybody, was providing day to day management and control over drivers and their working activities;

(e)

Three of the four drivers engaged by Excell Logistics Ltd were “self employed contractor/limited companies”. This failed to provide sufficient control over the drivers’ activities and was anti-competitive. It was symptomatic of the absence of control over drivers. Work schedules appeared to be wholly determined by Amazon; vehicles were out working day and night; drivers were rarely seen at the operating centre;

(f)

Paragraphs 29 to 32 of the TC’s written decision, within this section, read as follows:

29.Mr Saleh testified to his difficulties in engaging with drivers and with the operator working full time in a demanding role as a social worker, initially spending 2 days a week in Devon and 3 days working from home and then working full time for the Local Council in the Midlands, it would appear that the majority of the drivers worked autonomously and without adequate control by the operator.

30.I found the evidence of Mr Saleh credible and concerning in terms of the operator/director’s unwillingness to listen to sensible professional advice or to implement compliance systems.. He advised the operator that she had insufficient funds to support the variation application and that she should proceed incrementally in increasing authorisation. He stated that Mrs Kufandirori ignored this advice because she wanted to avoid the cost of repeated applications, an unwise saving. He also stated that she “disregarded the strict requirements set out in the conditions of the interim licence and also my very firm instructions upon her receiving the interim licence”.

31.In the relatively short time since this licence was granted, the operator has had two transport managers resign and one transport consultancy withdraw their services. Mr Saleh described [Miss Kufandirori] in January 2023 as “missing the very basic requirements of an operator”. He doubted the account given by the operator that his predecessor had left for “personal related reasons”. He stated in his evidence that he regretted his involvement and he appreciated that he put his own repute at risk by being on the licence.

32.Mr Saleh, in his letter to the OTC dated 26th October 2023, doubts whether the operator understands the “seriousness and the severity of the conditions which we as operators have to abide by”. This is borne out by my observation of the operator and consideration of the paperwork forming part of this public inquiry. I do not doubt Mr Saleh’s evidence that the operator lied to him about the operation of unauthorised vehicles.

(g)

AS Miles’ withdrawal and their difficulties in getting the “level of commitment from Babrah Kufandirori that we require”, spoke volumes for Excell Logistics Ltd’s approach to compliance and the level of trust that can be placed in Miss Kufandirori. It was also significant that the visit from AS Miles identified a “considerable amount of work that was required” and a “general lack of action in carrying out activities that had been previously requested”;

(h)

There were clear and obvious deficiencies in Excell Logistics Ltd’s maintenance documentation.

The final section of the TC’s written decision, headed “Considerations and decision”, included the following:

(a)

The TC placed Excell Logistics Ltd’s conduct in the ‘severe’ category: “deliberate or reckless act(s) that compromised road safety and/or gave the operator a clear commercial advantage and/or any attempt by the operator to conceal offences or failings”:

The use of unauthorised vehicles was deliberate and contrary to a clear OTC direction

ii.

Miss Kufandirori lied to DVSA examiners in interview: she initially stated “it was only the one vehicle” used; she then stated: “our granted interim licence is valid for up to 6 months from June 2023” (whereas the OTC letter of 5 October 2024 “made it clear that the interim authority had ended”

iii.

The TC founded that the positive features (listed at paragraph 39) were far outweighed by the negative events in the case:

(a)

Excell Logistics Ltd had flouted restrictions on number of vehicles it was allowed to operate despite “clear instructions from OTC and firm advice from [its] transport manager that mandatory financial standing was lacking”

(b)

False responses to DVSA in formal interview under caution, as regards believing that interim authority existed in late October 2023

(c)

Miss Kufandirori’s statement and evidence gave the TC no basis for trusting her to run a compliant licence in the future

(d)

Successive transport managers had been unable to secure a genuine and sustained commitment to compliance; the TC firmly believed that Excell Logistics Ltd would continue to place commercial expediency above legal compliance

iv.

The conduct was such that Excell Logistics Ltd should be put out of business; the TC did not trust Excell Logistics Ltd to be compliant in the future; Excell Logistics Ltd had gained an unfair commercial advantage over compliant competitors; road safety was compromised by failures to manage drivers on a day to day basis; that had not been done in the past

Excell Logistics Ltd had lost good repute under s27; it was necessary and appropriate to revoke its licence

vi.

Excell Logistics Ltd had breached the undertaking, and requirement under s6, not to use more than the authorised number of vehicles; the TC revoked its licence under s26(1)(f) in addition

vii.

The TC refused to extend the “period of grace” for operating with a transport manager; the TC consequently revoked Excell Logistics Ltd’s licence under s27(1) for lack of mandatory professional competence, per paragraph 14A of Schedule 3

viii.

The TC considered it necessary to disqualify Excell Logistics Ltd and Miss Kufandirori for 12 months, under s28

ix.

Mr Saleh was formally warned regarding his good repute. The TC took into account his relative inexperience as a transport manager and Mr Saleh’s recognition that any future engagements must demonstrate far greater control and management. The TC noted that Mr Saleh’s involvement with Excell Logistics Ltd was relatively brief and that Mr Saleh had given a full account of his own, and Excell Logistics Ltd’s, failings.