Decision

Decision for Mohammed Akhtar t/a Euro Skip Hire

Published 11 June 2024

0.1 WEST MIDLANDS TRAFFIC AREA

1. MOHAMMED AKHTAR T/A EURO SKIP HIRE OD1038852

2. WRITTEN DECISION OF THE TRAFFIC COMMISSIONER MR M DORRINGTON

3. PUBLIC INQUIRY ON 24 APRIL 2024, OFFICE OF THE TRAFFIC COMMISSIONER IN BIRMINGHAM

4. BURDEN AND STANDARD OF PROOF

The burden of proof is upon the DVSA to prove any allegations made against Mr Akhtar that have not been accepted by him. The standard of proof is the civil law standard; the balance of probabilities. In other words, what is more likely than not to have happened.

After applying the burden and standard of proof to all of the evidence before me I have made the following findings of fact.

5. FINDINGS OF FACT

This was the third regulatory public inquiry Mr Akhtar has been called to.

On the last occasion, 09 November 2016, his operator’s licence was suspended for 28 consecutive days in a written decision made by the then Traffic Commissioner.

Mr Akhtar appeared at this public inquiry with his wife. An interpreter had been provided by the Office of the Traffic Commissioner for Mr Akhtar. I had no doubt that they both understood one another properly.

There was a roadside encounter on 18 September 2023 by the DVSA for an insecure load on a skip lorry. The driver was Mr Akhtar. The load was not sheeted/netted and was loaded far too high above the sides of the skip. There was clearly a risk to pedestrian and other road users caused by that load. The photograph at page E7 of the bundle speaks a thousand words. Road and pedestrian safety had clearly been put at risk as a result as I was in no doubt that some of that load could have fallen from the skip, especially if the vehicle in question had to brake hard for whatever reason.

Mr Akhtar did not have to move that skip. He made the conscious decision to do so when he collected it. That decision put people and property at risk.

A Maintenance Investigation Visit Report (“MIVR”) was undertaken as a result of that roadside encounter. It was completed by Vehicle Examiner (“VE”) Hopwood from the DVSA on 18 September 2023.

VE Hopwood found 9/13 areas he looked at to be unsatisfactory.

I went through those 9 areas with Mr Akhtar in the public inquiry. Having done so I was satisfied that it was more likely than not that:

• An Immediate Prohibition Notice was issued to vehicle BU62ZDZ. By the nature of that prohibition being scored as “Immediate” it meant that the vehicle was not in a roadworthy condition. Indeed, the defect was for an indicator not working correctly. That failure, in and of itself, put road safety at risk. Mr Akhtar accepted in the public inquiry that he had not properly checked the vehicle on the day the prohibition was imposed; and

• There was no written Vehicle Off Road (“VOR”) system in place; and

• PMI inspection intervals had been extended from the stated 6 weeks to 56 days for vehicle BU62ZDZ between 08 October 2023 and 03 December 2023. Without a written VOR system in place at the time I did not accept that that vehicle had been taken off the road; and

• The driver defect reporting system was below what the DVSA would regard as an acceptable standard; and

• The operator’s first time fail rate at MOT was 40% and the final fail rate was 20%; and

• There was no tangible vehicle emission system/monitoring in place; and

• There was no tangible wheel removal and/or re-torquing system in place; and

• The was no tangible evidence of an effective load security system in place and no tangible evidence that the operator had completed load security training; and

• As the responsible person for this operator’s licence Mr Akhtar could only demonstrate partial management control to VE Hopwood.

I noted from the supplemental DVSA statement, and from what Mr Akhtar told me, that many changes since the MIVR had been undertaken including, from February 2024, the retention of the transport manager CPC holder; a Mr David Chiltern. It was most unfortunate that he was unable to attend the hearing and it was equally disappointing that he had not provided even a letter/email to explain what he was now doing for this operator and what he would be doing in the future.

A new maintenance provider, Greenhouse Daf, was now being used and I was told that they had been used for the past 6 months or so. No maintenance contract had been provided to the Office of the Traffic Commissioner within 28 days of that new maintenance provider contract being signed on 11 October 2023. Indeed, as at the date of the public inquiry the Office of the Traffic Commissioner still had not been provided with a copy of that contract and therefore formal notification of a change in maintenance provider for this operator.

The supplemental report from the DVSA still showed that there were areas of weakness in maintenance compliance. Assurances were given that they had been addressed and would not be present going forwards in time.

Sufficient financial evidence in the name of the operator was received within the time I allowed after the public inquiry.

The crux of this case was, I have found, to be identical to that found by Traffic Commissioner Denton at the last public inquiry; that Mr Akhtar does not have what it takes to be a compliant operator without close, expert supervision. That is why it was unfortunate, indeed disappointing, that I did not have anything from Mr Chiltern to give me reassurance that with him present Mr Akhtar can be kept on the straight and narrow road of compliance.

The following general undertakings on the operator’s licence had been breached:

• That vehicles [and trailers] would be kept fit and serviceable; and

• That Mr Akhtar would keep records for 15 months of driver defects, safety inspections and routine maintenance and make them available upon request; and

• Drivers would report promptly any defects or symptoms of defects that could prevent the safe operation of vehicles and/or trailers, and that any defects would be promptly recorded in writing.

There were a lot of positives in this case for which I gave Mr Akhtar as much credit as I could give to him. However, it was clear to me that left on his own he was not capable of fulfilling the general undertakings on his operator’s licence to a compliant standard. History, by the MIVR before me, had clearly repeated itself when I looked back at what Traffic Commissioner Denton had said in his written decision.

6. BALANCING EXERCISE

After giving the operator as much credit as I possibly can give to it for the positives that I identified, and after assessing the operator as he appeared before me at the public inquiry, I still find that the weight I have attached to the negatives in this case still far outweighs the weight I have given to the positives in this case. Consideration of regulatory action is therefore necessary.

7. CONSIDERATION OF STATUTORY DOCUMENT NUMBER 10, ANNEX D

I have reminded myself that the previous written decision made by Traffic Commissioner Denton was the starting point in this case.

I repeat all of my findings. Having done so I have identified the following positives and negatives in Annex D of Statutory Document number 10:

7.1 Positives

• Sufficient and effective changes made (tangible evidence) to ensure compliance; and

• Operator co-operated with the enforcement investigation; and

• [added by myself] Retention of a transport manager CPC holder under a contract for services to assist Mr Akhtar.

7.2 Negatives

• Reckless/deliberate act by Mr Akhtar as the driver of the skip lorry on 18 September 2023 leading to a road safety risk; and

• Previous unsatisfactory maintenance investigations and/or public inquiries; and

• Ineffective management control and appropriate systems and procedures; and

• A road safety critical defect on a prohibition notice; and

• High prohibition rate (tempered by the fact that only one vehicle has been examined since the last public inquiry and therefore the 100% prohibition rate is in that context]; and

• Low first-time pass rate at MOT.

Here there has been “Persistent operator licence failures with inadequate response or previous public inquiry history” which, as per the matrix given in Annex D of Statutory Document number 10, puts this operator into the “Severe to Serious” category for consideration of regulatory action.

8. DECISION AND REASONS

Normally a case such as this would be placed at the top end of that category but I have placed this operator in the middle because of the clear efforts made by Mr Akhtar to put things right on a permanent basis. Doing that has allowed me to step back, but only just, from revoking this operator’s licence.

That said the fitness of Mr Akhtar to hold a restricted operator’s licence, based on his acts and omissions since the last public inquiry, is now marked as “severely tarnished but not lost.”

There is no point in curtailing this licence as Mr Akhtar only operates one vehicle so a curtailment from the current two vehicle authorisation to one vehicle would have no regulatory impact upon him.

A 28 day suspension of Mr Akhtar’s operator’s licence was imposed by Traffic Commissioner Denton before. Normally there would be an escalation in severity of regulatory sanction a the next public inquiry but given the positive efforts made by Mr Akhtar I have stepped back from doing that.

In my determination the correct, fair and proportionate regulatory action is to suspend this operator’s licence for 28 consecutive days from and including 03 June 2024 up to 2359 hours on 30 June 2024. This order is made under sections 26(1)(c)(iii) [prohibitions], 26(1)(e) [breach to the statements of expectation made when the licence was granted], 26(1)(f) [breach of the general undertakings on the operator’s licence] and 26(1)(h) [material changes since the licence was granted].

During the period of suspension Mr Akhtar has no operator’s licence and cannot use any vehicle over 3.5 tonnes in weight for any commercial purpose. During that time none of his vehicles can be used on any other operator’s licence because I make a separate order under section 26(6) during the period of suspension.

Starting this suspension on 03 June 2024 allows Mr Akhtar sufficient time to collect all of his skips before the suspension starts. The suspension, in and of itself, is a marker on Mr Akhtar’s file to show how close he has come to losing his operator’s licence. It also shows to compliant operator’s that robust action will be taken against non-compliant operators when they are caught, and it sends the right message to the well informed members of the public that this jurisdiction serves the dual purpose of protecting road safety and fair competition amongst operators. Finally, this period of suspension should be used as both a period of reflection by Mr Akhtar and for him to stress test his new compliance systems and procedures and to tighten up any areas of weakness.

If this decision is breached then it is difficult to see how Mr Akhtar could survive the resulting public inquiry without a loss of his operator’s licence and consideration of a lengthy (2 or more years) disqualification.

This decision is subject to Mr Akhtar first agreeing to the following two specific undertakings (very formal and very binding promises to me):

• That Mr Akhtar will always retain the services of a transport manager CPC holder (currently Mr David Chiltern) who will dedicate at least 2 hours per week to Mr Akhtar’s transport operation. If a transport manager CPC holder gives notice to Mr Akhtar to leave, then Mr Akhtar will immediately inform the Traffic Commissioner together with written assurances of how and when a new transport manager CPC holder will be retained; and

• Mr Akhtar will successfully complete an in person (not virtual) operator’s licence awareness training course (“OLAT”) from an independent, competent and accredited provider before 10 August 2024 and proof of doing so must be received at the Office of the Traffic Commissioner in Birmingham no later than 21 days after the course was undertaken.

I will give Mr Akhtar until 1400 hours on 17 May 2024 to confirm in writing that he agrees to those two undertakings. If he does not then I will be left with no choice but to reach a different decision to the one I have just made.

It should go without saying that this is the very last chance that I will give to Mr Akhtar to be compliant and to remain compliant. I chose my words carefully when I say that because those words mean exactly what they say.

Traffic Commissioner Mr M Dorrington

07 May 2024.