[2025] UKUT 071 (AAC)

The Company is the holder of licence OK2012880, which was granted on 26^th June 2018 as a standard national licence. A transport manager was therefore required and the application named Mrs. Depinder Gill as the transport manager. An application to downgrade the licence to a restricted licence was granted on 27^th October 2022. The specified operating centre at the time of the public inquiry was in Hayes and the authorisation was for one vehicle.

The Company is also the holder of licence OH2017026, which was granted on 13^th August 2019 as a standard national licence. Again a transport manager was therefore required and the application named Mr. Gurdain Singh Brar as the transport manager. An application to downgrade the licence to a restricted licence was granted on 13^th April 2023. The specified operating centre at the time of the public inquiry was in Slough. The authorisation was originally for one vehicle, but by the time of the public inquiry it had been increased to two.

The application for licence OH2017026 stated that licence OK2012880 was already held and that that licence would be surrendered if the new licence was granted. Clearly that did not happen. The application also stated that someone named in the application had had a goods or passenger service vehicle licence revoked, suspended or curtailed and that someone named in the application had attended a public inquiry before a traffic commissioner. In both cases the relevant licence was OK1143004 and the licence holder was Japji 7676 Ltd. It was not clear to us at the time of the hearing what the connection was with the Company or Mr. Dhillon and so we did not know whether or not any conduct which might have led to the regulatory action taken or to the attendance at a public inquiry might shed any light on the fitness of the Company to hold a licence or of Mr. Dhillon to act as a director. We noted, however, that the papers before us do not refer further to these matters and it seems clear that they did not weigh with the TC. For completeness, we record that we have been informed by the Appellants’ solicitors since the hearing that the relevant inquiry related to the then transport manager.

The grant of licence OH2017026 did not proceed without difficulty, as is explained in the case summary for the public inquiry which is at p.24 of the appeal bundle. We take the following history largely from the case summary, since we have not seen all the underlying documentation. The transport manager specified on licence OK2012880 raised concerns which led to a letter dated 25^th July 2019 stating that the application would be considered at a public inquiry. In the event, having reviewed the application, the traffic commissioner decided to grant it with a warning upon the acceptance of an undertaking to have an audit by 30^th November 2019 and the Company was informed accordingly by a letter dated 7^th August 2019 (p.205). It is to be noted that the letter made clear that the warning was a formal one which could be taken into account if further reports of non-compliance were received and the traffic commissioner had to consider whether action should be taken against the licence.

A request was received for an extension of the undertaking and the date was extended to 31^st May 2020. No audit was received by that date and a letter warning of the proposed revocation of the licence was sent on 8^th June 2020. What is described as an “audit and improvement plan” was received on 28^th June 2020 (the audit having been carried out on 23^rd May 2020). A letter from the Office of the Traffic Commissioner (“the OTC”) dated 2^nd July 2020 states that the traffic commissioner found the audit and improvement plan satisfactory and had decided simply to issue a further formal warning.

There appears to have been no further relevant history until 2022. On 19^th August 2022 the Company applied to increase the authorisation under licence OH2017026 to three vehicles. The application led the Driver & Vehicle Standards Agency (“the DVSA”) to carry out a maintenance investigation on 1^st December 2022. The report of the investigation identified six satisfactory areas of assessment, one mostly satisfactory area, five unsatisfactory areas and one matter for report to the OTC. The unsatisfactory areas related to a number of defects including very limited recording of brake tests, problems with driver defect reports and a lack of wheel and tyre management systems. The matter for report was that the transport manager, whom we understand to have been Mr. Dhillon himself by that stage, had attained his certificate of professional competence four years previously and had not attended a refresher course. Further, it seemed from his answers to the questions asked that his knowledge was not sufficient to meet current changes and standards in legislation and he lacked full control. The investigation report added that the transport manager had booked a refresher course to be held on 16^th January 2023.

The traffic commissioner granted the variation with a third formal warning upon the acceptance of an undertaking to have an audit by 30^th August 2023. The terms of the undertaking were set out in a letter dated 13^th February 2023. The undertaking was given by a letter dated 26^th March 2023 after a reminder letter was sent dated 3^rd March 2023 and, in the absence of a response, a further letter dated 22^nd March 2023 stating that the traffic commissioner was minded to revoke the licence. The Company explained the delay by reference to the absence of certain individuals in India, an incorrect email address, submission of documentation by email which on investigation was blocked and the absence of a telephone number to contact the OTC.

No audit had been received by the time of the application for licence OF2067675, which is dated 1^st August 2023 and was from the outset an application for a restricted licence. It disclosed the existence of licence OK2012880, although the licence holder was said to be Mr. Dhillon, and stated that that licence would not be surrendered. No reference was made to any other licence. The proposed operating centre was in Iver and authorisation was sought for three vehicles. The application elicited a number of requests for further information, including a request for confirmation whether licence OH2017026 would be surrendered. This led to email correspondence between the Company and the OTC in which by an email sent on 5^th September 2023 the Company inquired whether, if they surrendered licence OH2017026, they would need to submit the audit, or whether they could wait until they got an interim licence on the new application. The response from the OTC, sent on 13^th September 2023, was that the undertaking required the audit by 30^th August 2023, so they would still need to submit it.

An audit carried out on 29^th September 2023 was then submitted which was expressed to be for licence OH2017026 but noted that the operator had two licences. By this time both licences were restricted licences and the requirement of professional competence which had previously applied under section 13B of the Goods Vehicles (Licensing of Operators) Act 1995 (“the 1995 Act”) no longer had to be satisfied. Mr. Dhillon was identified as the responsible person and it was noted (p.237 of the appeal bundle) that he had passed the certificate of professional competence on 22^nd January 2019 and had done a refresher course on 16^th January 2023. The certificate of the original course had been seen (and is at p.377 of the bundle), but there is no reference to sight of the certificate for the refresher course (and it is not in the bundle). The auditor commented (p.250) that “there appears to be some disconnect between attending the course and applying the knowledge that should have been learnt”. There is reference to the roadside stop of vehicle LJ67HGP on 10^th May 2023, the subsequent findings and the action taken against the driver, to which we refer further in paragraph 15 below. The summary of the audit shows that 12 areas were satisfactory, three mostly satisfactory, five satisfactory in part and seven unsatisfactory. The overview included the following:

“… the company has changed maintenance providers, and the paperwork has no issue number on it, and I am concerned that it does not adequately cover all of the inspection requirements. There is then evidence of some good systems such as the wheel nut torque register is in place and being used and a planner up to December 2024.

My recommendation is the operation steps up its efforts, uses the compliance folder it was supplied with fully and holds more evidence of the work it is carrying out.”

The traffic commissioner’s review of this material led to a letter dated 18^th October 2023 by which the Company was informed that the traffic commissioner remained to be satisfied and required a full independent audit to be completed. The existing undertaking would be removed if the Company accepted a further undertaking that a further audit should be carried out by 18^th April 2024. An undertaking was given accordingly and the undertaking appeared on licence OH2017026 at the time of the public inquiry.

By the time of the public inquiry it had transpired that a maintenance investigation had been carried out by the DVSA in relation to licence OH2017026 on 31^st May 2023 which identified a number of shortcomings, including lack of regular roller brake testing, an ineffective driver defects system, no evidence of a vehicle emissions maintenance and monitoring system and an inadequate wheel and tyre maintenance system. The report stated that the responsible person, who we understand to be Mr. Dhillon, appeared to lack any experience or knowledge and he was ignoring obvious problems. Three of the areas for assessment were satisfactory, five were unsatisfactory and four required report to the OTC. The report included links to a number of helpful websites offering guidance of various kinds. This investigation arose out of the roadside stop mentioned in the September 2023 audit. It appears from pp.289-292 that on that occasion three “S” marked prohibitions were issued, relating to nearside and offside indicators which were inoperative and to a defective tyre, all of which were significant against the driver, a Mr. Balour Singh. Fixed penalty notices were also issued. Further, the vehicle was not specified on the operator’s licence and the one month grace period had expired, and Mr. Singh had not used the tachograph record sheet or driver card. In addition, the examiner, Mr. Peter Forshaw, had had problems in accessing the operating centre and had been informed by the site owner’s solicitor that the Company had been given 28 days’ notice to quit, the notice being dated 1^st May 2023. Mr. Dhillon had not at that point found an alternative site and the maintenance provider had also been held up at the entrance. In the light of that information and having regard to the audit, the traffic commissioner decided to hold a public inquiry to consider the application for licence OF2067675, a decision of which the Company was informed by a letter dated 28^th November 2023.

The next event of which we are aware is that a desk-based assessment was carried out in relation to licence OK2012880 on 1^st February 2024. That assessment identified two areas as satisfactory, one as “issues found”, one as mostly satisfactory, 11 as unsatisfactory and one as “action required”. It raised many of the same issues as had been raised in relation to licence OH2017026. As respects maintenance, it stated at p. 106 that during the three year period assessed, the Company had “100% initial fail rate and 75% final fail rate”, which we understand to refer to MOT tests. It also raised issues as to the observation of the drivers’ hours requirements, including 15 incidents of driving without a driver card for small movements and 12 examples of Mr. Dhillon, who is a driver as well as a director of the Company, having exceeded the 4.5 hours limit without taking his required break. (This led to the rather farcical situation whereby, as appears from p. 147, Mr. Dhillon discussed these infringements with himself and confirmed his understanding of the implications.) It also identified that vehicle DX64BDO was driven for 165 kilometres on 19^th August 2023 without a driver card inserted.

No audit in relation to licence OH2017026 was provided by 18^th April 2024. A reminder letter was sent on 2^nd May 2024, without immediate result. The traffic commissioner considered the case and decided to call the Company and Mr. Dhillon to a public inquiry, to be held on 24^th June 2024, which would relate to the existing licences and the outstanding application for licence OF2067675. The call-up letter, which is dated 14^th May 2024, gives details of the various matters which were of concern to the commissioner and identifies the relevant provisions of the Goods Vehicles (Licensing of Operators) Act 1995 as section 26(1)(b), (c)(ii), (ca), (e), (f) and (h). In summary, reliance was placed on the maintenance, driver defect reporting and drivers’ hours issues already mentioned, the failure to notify changes to the traffic commissioner and the issue of prohibition and fixed penalty notices. Mr. Dhillon’s vocational driving entitlement was to be considered at a parallel hearing on the same day. The Company was also informed that the traffic commissioner would consider the report dated 26^th June 2023 of Mr. Peter Forshaw, a DVSA vehicle examiner, which dealt with the issues in more detail.

We note that the letter drew attention to the seriousness of the matters being raised and stated “… you should identify competent legal or professional representation quickly unless you are confident that you do not need it.” It also enclosed a form of authority for a legal or other representative and an attendance form covering the possibilities that the Appellants would be legally represented, professionally represented or unrepresented.

The call-up letter appears effectively to have crossed with an email from the Company sent on 14^th May 2024, which stated that an audit report was being sent, offered an explanation for a parking issue and stated that the Company would try to work on the matters raised and to become a member of the Road Haulage Association so that they could learn better ways.

The audit report duly arrived and shows that the audit was carried out on 11^th April 2024. The first paragraph of the summary (p.299) reads:

“The operator’s compliance performance is severely lacking, with multiple critical deficiencies observed across many audit areas. The operator’s current processes and procedures are almost non-existent and pose significant risks to safety and regulatory compliance. Their disregard for fundamental regulatory requirements not only jeopardises their own operations but also undermines public trust in the transport industry as a whole. Urgent intervention and remediation efforts are imperative to address these systemic deficiencies and prevent further regulatory violations and potential enforcement actions. Failure to take decisive action may result in severe consequences, including suspension or revocation of their operator licence.”

That must be read in the light of the fact that the “major priorities” identified in the next paragraph and repeated elsewhere in the report are to update the operating centre (apparently by pursuing the application for licence OF2067675), update the maintenance provider, bring the preventative maintenance inspections (which were being completed regularly) into line with the regulatory requirements as to frequency, check that the paperwork is being completed in full and to ensure that driver reportable defects are dated on completion.

On 21^st May 2024, having received the call-up letter, Mr. Dhillon wrote to the OTC by email as follows:

“We are going to request you that can you forward PI date. Reason for it, We spend around £17000 money to repair our trucks. We were unable to do work for nearly 3-4 months following months nov 23 dec23, jan 24 and Feb 24 Which cost we paid yard rent 3 months £8100, Truck finance £12600 and insurance £3000. We run a small company so you can understand how difficult it is to manage it. For PI we need legal advice which costs very hard and affordable this time period. We request you please understand our circumstances and give us more time. We shall be really grateful to you.”

The following day the OTC responded by email:

“The Deputy Traffic Commissioner has considered the contents of your email and had decided to refuse the request for an adjournment. You do not have to be legally represented and many operators attend without a solicitor or other representative. As the adjournment has been refused you must attend and provide all the information requested …”

Mr. Dhillon then inquired about the provision of a Punjabi interpreter on the ground that English was his second language and was informed that a Punjabi interpreter would attend.

On 11^th June 2024 the Company sent a letter by email to the OTC (p.328) which included the following in relation to missing mileage:

“Its show driver has missing mileage but not any driver drives a vehicle without techo cards. It happens when ANY driver drives a vehicle.

For example: Jatinder driver vehicle 22may 23may and 25 may another driver drive and 26may Jatinder drive again. MAY 25may driver drive 60 miles and it’s showing Jatinder has missing mileage. (We attached copy)

Even nobody knows about this. All TM and auditors tell us this happens only because of card missing, but that’s not true.”

We understand that the copy referred to is a reference to pp. 358 to 364, which appear to show that Mr. Dhillon drove the vehicle LJ67HGP on 24^th May 2024 ending with a closing mileage of 196528 kilometres and drove it again on 27^th May 2024 with a starting mileage of 196729 kilometres, leading to a missing vehicle mileage record of 201 kilometres. These figures can be reconciled by observing that Mr. Mohammed Adil Ajaz drove that vehicle on 25^th May 2024 for 201 kilometres. Similarly, missing mileage of 75 kilometres between 17^th and 23^rd May 2024 on that vehicle and of 69 kilometres between 17^th and 29^th May 2024 on vehicle SN16NXF can be reconciled by observing that Mr. Ajaz drove those vehicles for the relevant distance on 20^th May 2024.

The tachograph analysis reports in the bundle at pp. 347 to 362 show no driver infringements for November and December 2023, two infringements in January 2024, during which vehicles were driven for 953 kilometres in total over 12 days, and none in February 2024. This is the period during which the Company says it was not operating. There were five infringements in March 2024, two in April 2024 and one in May 2024. The infringements were all committed by Mr. Harpreet Singh Brar with the exception of one of the January infringements, which was committed by Mr. Dhillon himself. The infringement consisted of driving for 4 hours 32 minutes without a break.

In addition to the missing mileage records referred to in paragraph 24 above, the bundle contains further missing mileage records which have been annotated to offer an explanation for the missing mileage.

The OTC asked Mr. Forshaw to produce an updated report on the maintenance records for the Company’s vehicles and the forward planner. That report, dated 12^th June 2024, is to be found at pp.386 to 390. It included the following:

The public inquiry was duly held on 24^th June 2024 in front of the TC and was attended by Mr. Dhillon, the interpreter and (by Teams) Mr. Forshaw.