Decision

Impounding: Written decision regarding an impounding by the Traffic Commissioner for the Scottish Traffic Area for Tabassum Hussain

Published 15 November 2023

0.1 In the Scottish Traffic Area

1. Written Decision of the Traffic Commissioner

1.1 Impounding Hearing: In respect of the application by Tabassum Hussain (“the applicant”) for the return of VEHICLE REGISTRATION NUMBER: TUI 4951

2. Background

The applicant has not held an operator’s licence before. His company, HZ Executive Travel Limited, applied for an operator’s licence on 22 September 2023. That application is still under consideration. HZ Executive Travel Ltd was incorporated on 14 March 2023. The applicant is the sole director.

On 2 July 2019, the applicant was the driver of vehicle WX56 HBP - a 16 seater minibus – which was subject to a roadside inspection. The examiner who carried out the inspection recorded in his report that the applicant initially evaded officers who were trying to stop the vehicle. When stopped at Chester Zoo, the passengers who had been on board had alighted. The applicant told officers that the passengers were his family and friends. When analysed, the tachograph data showed that the vehicle had travelled significant distances in the weeks before the stop.

That information, together with the large sums found to be being spent on diesel despite the applicant’s claim that he was unemployed, led the officer to conclude that the vehicle was being used for hire and reward.  A pre-impounding warning letter was issued to the applicant, but no response was received from him.

3. Evidence lodged in advance of the hearing

Examiner Munro lodged a copy of his inquiry statement and associated productions.

The applicant lodged the V5 logbook in relation to TUI 4951 in advance of the hearing. The V5 confirmed that he was the registered keeper of the vehicle. At the outset of the hearing, the applicant sought permission to lodge a further document dated 2 October 2023 which he advised was a copy of the Colpart purchase receipt for the vehicle.

When questioned, the applicant advised that he had been in possession of the document since 2 October 2023. He could not explain why he had not lodged it before the hearing but stated that he thought it best to bring it along with him on the day. Given there was only one item of additional evidence, I decided to grant the applicant’s motion to lodge the document, albeit late. 

4. The Hearing

The hearing in relation to the applicant’s for return of the vehicle took place at Edinburgh  on 12 October 2021.

The Applicant attended and was accompanied by Mr Farooq. Mr Farooq is a transport manager but was not representing the applicant. He was in attendance for the purposes of support only. The applicant was not legally represented.

Traffic Enforcement Manager (TEM) Alexander Davidson, Traffic Examiner (TE) Michael Munro and Vehicle Enforcement Manager (VEM) Graeme Patterson were present for the Respondents. They were not legally represented.

On his application form, the applicant indicated that he sought return of the vehicle on two of the grounds - 10(3)(b) and 10(3)(c) - of the 2009 Regulations. When asked to confirm the grounds he sought to rely on, the applicant confirmed that it was only ground 10(3)(b) – that the vehicle was not being used in contravention of section 12 of the 1981 Act. His position was that he was not using the vehicle for hire or reward, rather to transport friends and family.   

At the outset of the hearing, I explained the adversarial nature of the proceedings and the legal tests which applied. However, given that the applicant was unrepresented, I also allowed him an opportunity to consider the Senior Traffic Commissioner’s document No.7 on impounding prior to giving his evidence.

5. Evidence

5.1 Examiner Munro

Examiner Munro advised that on 27 August 2023, whilst carrying out a routine check, he and VEM Paterson observed passenger carrying vehicle TUI 4951 parked in the car park at Stirling castle. The vehicle was not displaying an operator licence disc nor was it specified on any operator licence.  

When the examiners approached the vehicle the applicant identified himself. He advised that he was the owner of the vehicle having purchased it from a dealer called Copart around three months previously. He advised that he had carried out repair work on the vehicle but was unable to produce any proof of purchase or other documentation proving his ownership.  The applicant could not recall where or when the vehicle had last been MOT’d, but Examiner Munro’s checks of the system showed that the commercial test certificate in relation to the vehicle expired on 8th May 2023.

The examiners observed there to be numerous bags and jackets within the vehicle. The applicant stated that the passengers he was transporting were his family and friends. He denied using the vehicle for hire and reward. At first, the applicant had told the examiners that he was in the process of applying for an operator’s licence but later advised that he had not yet applied and was sorting his finances out first. He advised that he had arrived at the castle with his passengers around 11.30am and that they were due to leave around 1.30pm.

Inquiries revealed that the applicant was neither a current applicant for, nor the holder of, a public service vehicle operator’s licence. Examiner Munro also identified that the applicant had been subject to a roadside stop in 2019 and noted the stopping officer’s findings in relation to that encounter.

The applicant told the examiners that they had stayed at the Best Western Hotel and that he had been to the Kelpies and Stirling prior to arriving at the Castle. VE Patterson made enquiries with the hotel mentioned by the applicant but was advised that there was no booking made in his name. TE Munro downloaded the tachograph unit in the vehicle and found that the vehicle had travelled 3037km in the period 19 August to 27 August 2023 alone. Further analysis showed that the vehicle had travelled 6036km in the period 24 July-27 August 2023.

Examiner Munro advised that the passengers never returned to the vehicle. Initially, the applicant advised that they had gone for a meal. He later said that they had left the site. When Examiner Munro asked the applicant why his friends had not returned to offer support for his position that they were friends and family, he was told that they could not be bothered with the hassle.

A black Audi car arrived on site during the afternoon of 27 August 2023 and the passengers’ belongings were loaded into it and removed from site. Due to a technical problem, vehicle TUI 4951 was unable to be recovered at first attempt and was eventually removed from site at around 7pm that evening. The examiners remained on site whilst awaiting recovery and noted that the applicant spent much of the afternoon on the phone to others including, reportedly, his solicitor. He accused the examiners of targeting him on account of his race, as did others who were heard to be shouting over the phone.

Examiner Munro confirmed that his belief that the vehicle was being used in contravention of section 12(1) of the Act was based on: his observations of the vehicle being in use at the location it was encountered; it having been confirmed by the applicant that he was carrying passengers and his own observations of passenger belongings in the vehicle; the information that he had identified during the encounter regarding the 2019 roadside stop, the stopping examiner’s concerns around commercial use at that time and the explanation about family and friends having been offered on that occasion also; and the high mileages being travelled by the vehicle, which in his experience, was not consistent with personal use.

Examiner Munro told me that he had undertaken follow up inquiries which identified that the vehicle TUI 4951 had been involved in an accident in December 2022. His inquiries of the former owner of the vehicle, Mr Khadim Hussain, disclosed that the vehicle had been deemed uneconomical to repair following the accident. The vehicle had also potentially been used to provide transport for a company involved in televising a sporting event in July 2023, after the applicant had become the registered keeper of the vehicle.

6. The applicant

The applicant stated that he owned the vehicle. He had produced the V5 document which showed he was he was the registered keeper and had obtained a copy invoice from Copart showing the purchase of the vehicle in May 2023. That was the only evidence he could get from Copart. He had had the invoice since 2 October 2023 but could not explain why he had not produced it beforehand. He accepted that the invoice did not have his name on it but said that he could produce bank statements showing the money being paid for the vehicle. When asked why he had not done so in advance of the hearing he advised that he had had no guidance or advice on the matter.

The applicant advised that he had formed a company, HZ Executive Travel, in May 2023. He had spoken to Mr Farooq but had not had enough money to establish financial standing for his operator licence application. In August 2023 he was able to access what he referred to as he and his wife’s ‘life savings’ and lodge the application.

He told me that the passengers on board on 27 August 2023 were his family and friends. He had gone to Dubai the previous year and met a friend who had shown them around. In August 2023, that same friend had contacted him to advise that he had friends coming over the UK. He asked the applicant if he would show them around the UK and the applicant had agreed to do so. He had received payment, but only for fuel.

The passengers he was transporting were friends of his friend in Dubai. When asked why they did not return to the vehicle to support his assertions on the day of the impounding, the applicant advised that he had spoken to one of the passengers and asked him to come back. However, he did not speak good English and was scared being in a foreign country. He did not feel able to return and explain the position.

When asked about Examiner Munro’s evidence that the passengers’ trip was found to have been booked through an American travel agent, he advised that he had only been asked to show them around – nothing more. He had not thought about getting a statement from his friend in Dubai, or any of the other passengers, for lodging at the hearing because they did not speak English.

In relation to the 2019 encounter, the applicant told me that he had large family and friends. Everyone used the PSV that was why they had got it. They had gone out for a family trip to Chester Zoo. He had not been using the vehicle for commercial purposes on that day either. He had not received the pre-impounding letter which had been sent.

On both occasions the high mileages covered by the vehicles found by the examiners must have been down to friends and family borrowing his vehicle. He understood that the mileages looked excessive for personal use, but it had not been him that had done all the miles. The applicant accepted that there was no evidence before me, nevertheless, to demonstrate regular use of the vehicle by others.

The applicant stated that he was sorry for the mistake he had made and that he just wanted a chance to get things right with his new application. When pressed as to what ‘mistake’ he was referring to, his evidence was confused. He did not know what was going on and had made mistakes. He told me that he just wanted to get his vehicle back and go forward with his application. He was willing to allow DVSA to keep the vehicle until his application was granted.

In submission, the applicant stated that he could get evidence from Copart showing the purchase in his name.  He could also get bank statements to show the money being paid. He accepted, nonetheless, that those documents should have been produced well in advance of the hearing.

As regards the grounds pleaded in support his application to have the vehicle returned, the applicant said that he had not been operating commercially on 27 August 2023. When he had been able to get the money together for an operator licence application, he had applied. There were no transactions in his business account statements that he had lodged in support of the application and that showed he had not been operating.  He was speaking regularly with Mr Farooq to get guidance and was going to complete a transport manager course to increase his knowledge. He was more than happy to leave his vehicle with DVSA until his licence was granted.

The applicant advised that he was under a lot of stress and arguing with family because of the situation. What has happened had happened and he could not go back on it. He had spent a lot on the vehicle and there were no defects on it when stopped. All he wanted was a chance.  

7. The applicable law

I reminded myself of the legislation relevant to impounding and application for the return of a PSV as well as the content of Senior Traffic Commissioner’s Statutory Document number 7: Impounding. 

In addition, I considered the dicta of the Upper Tribunal (and its predecessor jurisdiction, the Transport Tribunal) in determining appeals of Traffic Commissioner decisions in previous impounding cases.

8. The Impounding

I turned to consider, as a starting point, whether DVSA’s actions in impounding the vehicle were lawful. Impounding is lawful if an authorised person has reason to believe that a vehicle is being, or has been, used on a road in contravention of Section 12(1) of the Act. Unless permitted to do so under an exemption it is unlawful in Great Britain to use a PSV with the capacity to carry more than 8 passengers on a road for the carriage of passengers for hire and reward without holding a PSV operator’s licence issued under the Act.

Published, and readily available, DVSA guidance on ‘PSV Operator Licensing’ informs operators and applicants that ‘hire or reward’ is any payment in cash or kind which gives a person the right to be carried, regardless of whether or not that right is exercised.

Under the Regulations, a vehicle detained by DVSA by virtue of Regulation 3 must be returned to the owner, without the need for an application to the Traffic Commissioner under Regulation 11, if DVSA is satisfied that one or more of the grounds specified in Regulation 10(3) is or are made out.  DVSA’s position in this case is that none of the grounds are made out.

Examiner Munro’s evidence was that he had a reasonable belief, on account of the factors listed in paragraph 19 of this decision, that the vehicle was being used for hire and reward in contravention of section 12(1) pf the 1981 Act. I am satisfied, having regard to those factors, and the applicant’s inability to produce any evidence to Examiner Munro in support his claims that his passengers were ‘friends and family’, that Examiner Munro did have reasonable grounds to believe that vehicle TUI 4951 was being used by the Applicant in contravention of section 12(1) of the 1981 Act.

I conclude therefore, that that the detention of the vehicles by the Respondent’s officers under regulation 3 of the Regulations on 27 August 2023 was lawful.

9. Ownership

An applicant for return of an impounded vehicle must prove that they own the vehicle. Until the date of the hearing the only evidence lodged in support of the applicant’s ownership claim was the V5 document.

On the day of the hearing, the applicant produced a copy invoice from Copart which he claimed related to his purchase of the vehicle. He told me that he had obtained the document on 2 October 2023 but had decided not to produce it until the morning of the hearing. The invoice did not name him as the purchaser, nor did it name him anywhere or include the registration number of the detained vehicle. The delivery instructions purported to show that the whatever vehicle the invoice related to was to be delivered to a company called Glebe Motors. 

The applicant, in attempting to explain the insufficiency of the document, initially told me that it was the only evidence he was able to get from Copart. However, his evidence in relation to that changed later when he claimed that he could get an invoice from Copart showing that he was the purchaser. He told me that he could also get bank statements showing the money for the vehicle being paid.

The burden of proof rests with the applicant to prove, on the day of the hearing, that they are the owner of the vehicle. In the case of 2005/259 R J Evans , the Transport Tribunal made clear that the test to be applied is whether the appellant has produced sufficient evidence to satisfy a traffic commissioner, on the balance of probabilities, that he is the owner. Production of a V5 logbook alone is insufficient. The lack any identifying features linking the copy invoice produced to the applicant or vehicle rendered it of little evidential value. Accordingly, there was insufficient evidence before me at the date of the hearing to prove the applicant’s ownership of the vehicle.

The applicant claimed that he was inexperienced in operator licensing matters and his failure to provide sufficient information was based on ignorance rather than an inability to evidence ownership. The applicant was unrepresented; thus I gave careful consideration to whether further time should be allowed for him to produce the additional documentation which he claimed he could.

I decided against that for the following reasons. Firstly, the call up letter is clear that the V5 alone is not sufficient. It also makes clear that evidence must submitted by the deadline provided, in this case 2 October 2023. Whatever his state of knowledge of operator licensing, the applicant chose to provide only evidence that he had been told was insufficient in response to the call up. He then failed to lodge the additional evidence (such as it was) when he obtained it on that deadline day.

Secondly, more generally, I found the applicant to be an unreliable witness who appeared willing to say whatever he thought most likely to further his cause. His evidence was often contradictory and confused, particularly when pressed on issues which he anticipated may give rise to criticism of his own behaviour. Of particular relevance however, on the matter of whether further time might be allowed, was the contradictory nature of his evidence on what he was able to obtain from Copart.

At first, when it was pointed out the copy invoice bore neither his name nor the vehicle registration number, the applicant claimed that it was the only evidence he was able to get from Copart. Yet, when the difficulty that those deficiencies gave rise to in proving ownership were pointed out, he claimed to be able to get documentary evidence from Copart showing him as the purchaser. If that had been available why not simply produce it, or other evidence of ownership, from the outset? I was also mindful that the production of bank statements showing transactions which purported to relate to the purchase of a vehicle was likely to be insufficient (see 2005/218 Bridget Louise Menear).

Standing those findings, I was not satisfied, even if further time were given, that satisfactory evidence of ownership was likely to be produced.

Moreover, the history of the vehicle involved in this case is not straightforward. The evidence was that it had been involved in an accident and had been written off. It is within judicial knowledge that, in such circumstances, ownership often transfers back to the insurance company. Moreover, there was also a company – HZ Executive Travel Limited – in the wings, albeit it was denied by the applicant that the company had ever traded. The law is clear that there need not be evidence that another entity owns the vehicle given the burden of proof.  However, it is evident in this case, there is at least a possibility that another entity owns the vehicle.  

For the foregoing reasons, the applicant failed to satisfy me that he was owner of the vehicle which has been impounded. That being the case, I am unable to the consider the application further. The application is, accordingly, refused.

10. Comments in relation to the substantive ground for return

Notwithstanding the failure to prove ownership, I think that it may be helpful to the applicant for me to comment briefly on the substantive ground for return relied upon. There are two key pieces of evidence which indicate that the applicant may have had difficulty in persuading me that the ground set out in Regulation 10(3)(b) was established.

Firstly, the applicant’s case was based on his assertion that the passengers he was carrying on 27 August 2023 were his ‘family and friends’. It was for those reasons, he said, that he was not operating for hire or reward. However, his evidence at the hearing was that the passengers were not, actually, his family and friends. Rather they were friends of a friend of his who lived in Dubai. What he told the examiners on the day of the impounding was not, therefore, true.

Secondly, the applicant told me that he received payment, albeit only for fuel. Section 1(5) of the 1981 Act states:

“(5) For the purposes of this section, […]2 and Schedule 1 to this Act—

  (a) a vehicle is to be treated as carrying passengers for hire or reward if payment is made for, or for matters which include, the carrying of passengers, irrespective of the person to whom the payment is made and, in the case of a transaction effected by or on behalf of a member of any association of persons (whether incorporated or not) on the one hand and the association or another member thereof on the other hand, notwithstanding any rule of law as to such transactions;

(b) a payment made for the carrying of a passenger shall be treated as a fare notwithstanding that it is made in consideration of other matters in addition to the journey and irrespective of the person by or to whom it is made;

(c) a payment shall be treated as made for the carrying of a passenger if made in consideration of a person’s being given a right to be carried, whether for one or more journey and whether or not the right is exercised.”

The definition of hire and reward is a wide one. A contractual agreement is not necessary to demonstrate reward where there is a “systematic carrying of passengers which [goes] beyond the bounds of social kindness” (see Albert v MIB  [1971] 3 W.L.R. 291 and DPP v Sikondar [1992] 5 WLUK 169)

According to his evidence, the applicant agreed to transport the passengers around the UK when asked by his friend to do so. The evidence was that he had already been to the Kelpies and Stirling. There was, therefore, a degree of organisation in relation to the transportation, and payment was made for fuel to enable that transportation to take place. The passengers were not the applicant’s ‘family and friends’ but rather more distant associates, being ‘friends of a friend’. It seems likely, therefore, based on the applicant’s own evidence, that the vehicle was being used for reward, in contravention of Section 12(1) of the 1981 Act, on the day that it was impounded.

The applicant’s state of knowledge is another matter and not one which I am required to examine further given my finding as to ownership. However, I trust that the above serves as guidance to the applicant, who I note remains an applicant for an operator’s licence in the Northwest Traffic Area.   

Claire M Gilmore
Traffic Commissioner for Scotland

23 October 2023