Limo licence revoked

It is often forgotten that some limousines require a PSV operator’s licence. One such operator recently had its licence revoked following significant compliance failures

A public inquiry (PI) was held in Cambridge on 28 October 2022 to determine the fate of a limousine operator which had failed to comply with a number of licencing requirements. The operator, a Mr Ibrahim Mahmoud t/a The Lim.o, was called to PI regarding his restricted PSV licence, held since 3 November 2020 with an authorisation of 1 vehicle, and 1 disc issued. The application stated it was planned to use vehicle PF57 EHM, a Ford Expedition 12 passenger seat limousine, based at an operating centre at St James Road, Waltham Cross, and using maintenance provider Roy Carter with maintenance inspections (PMIs) on a 10 weekly basis.

The PI was heard by Deputy Traffic Commissioner (TC) for the Eastern Area Gillian Ekins, and a written decision issued on 8 November 2022. Mr Mahmoud was represented by Mr Brown of AMD Solicitors. In response to the Traffic Commissioner’s calling in letter issued on 23 September 2022, Mr Mahmoud had requested the case was adjourned because he had half term holiday plans with his children, and also stated the vehicle ‘had been stationary for a while.’ However he provided no evidence of the holiday booking, and the hearing remained as originally scheduled.

Subsequently, Mr Brown wrote to the TC stating: “The operator accepts that since the restricted PSV operator’s licence was granted, there have been material changes to the licence to the extent that with the advent of Covid-19, the operator was only able to work for a period of up to three months. The operator accepts that he is no longer established for the purposes of holding a PSV operator’s licence, and on that basis, he understands that the operator’s licence number PF2035902 must be revoked. Accordingly, we have been instructed to inform you that Mr Ibrahim Mahmoud will not attend the public inquiry and to invite the Traffic Commissioner to make a decision in his absence.”

By subscribing you will benefit from:

• Operator & Supplier Profiles
• Face-to-Face Interviews
• Lastest News
• Test Drives and Reviews
• Legal Updates
• Route Focus
• Industry Insider Opinions
• Passenger Perspective
• Vehicle Launches
• and much more!

SUBSCRIBE

LOGIN

Background

The licence had been granted with one condition attached, and six additional undertakings, which included:

• The operator would provide the TC with bank statements covering a three month period and other financial details in the name of Ibrahim Mahmoud that showed the licence holder has access to the required level of funding by 31 May 2021 and cover the whole of the months of February, March and April 2021;
• No vehicles with eight passenger seats or less would be operated under the licence without the prior written agreement of the Traffic Commissioner;
• Only limousines and novelty type vehicles with nine passenger seats or more and issued with a valid Certificate would be used under the licence;
• The operator would maintain separate records of all time spent and the gross and net income earned monthly from all occupations, with supporting detailed records, to enable the main occupation to be determined by the Traffic Commissioner at any time;
• Should gross income from, or time spent on, the minibus operation exceed that from all other sources for two consecutive months, the operator would apply for a standard rather than restricted licence, and;
• The operator should ensure that all other work is entered via a manual entry on the tachograph and corresponding evidence kept and made available to DVSA or Office of the TC on demand.

The operator failed to provide financial evidence by the deadline, despite a reminder letter. The TC requested a Desk Based Assessment (DBA) to be carried out by DVSA 12 months after the granting of the licence to ensure compliance, especially with regard to the final undertaking and main occupation. This was conducted by Traffic Examiner (TE) Hughes with a report dated 8 February 2022 marked as unsatisfactory and not resolved by the operator’s response.

In addition, on 7 December 2021 the operator had been sent a letter requesting 12 months of payslips by 23 December. These were provided a week late and showed 10 months of work with Gist Ltd from December 2020 to September 2021. However, there were also payslips from HGV1 Ltd for October and November 2021 indicating a change of main occupation that had not been notified to the Traffic Commissioner. As a result of the changes in circumstances, the Traffic Commissioner proposed to revoke the licence.

Public Inquiry

Mr Mahmoud did not attend the PI, nor did Mr Brown. In their absence, the TC took into account Mr Brown’s brief submissions contained in his letter of 19 October 2022 which stated: “We attach a bank statement on behalf of the operator which indicates that he has maintained the test of financial standing since 27 November 2021. We would, however, ask the Traffic Commissioner to fall short of making a finding against Mr Mahmoud’s good repute, given the difficulties which he experienced during the period following the grant of the licence when the pandemic was at its height. We would also submit that this is not a case in which a disqualification of the operator should be imposed.”

The bank statement confirmed that funds were held for the period from 28 November 2021 to 27 July 2022 to demonstrate financial standing. However, no evidence was provided to show the current position, and the TC noted there had been a breach of the financial condition on the licence as the operator had failed to provide his bank statements for the three month period of February to April 2021.

Five of the compliance categories assessed in the DBA were marked as unsatisfactory. This included drivers hours and tachograph rules as well as checks of drivers licences. driver CPC monitoring, DBS checks, training records, disciplinary systems, journey planning, agency drivers and a working time system. The operator claimed to be using TachoMaster, but working time records were not supplied to the TC.

TE’s evidence

Following his analysis of tachograph data, TE Hughes found a number of issues, of which he said: “The operator failed to respond to the shortcomings within the seven day deadline which was due by 16 February 2022. An unsigned written response was received on 18 February 2022 along with the raw vehicle unit data for PF57 EHM, which had previously not been produced. Subsequent analysis of this data identified over twenty occasions of speeding in excess of 100 km/h often for several minutes at a time, which could indicate the speed limiter is not functioning correctly.

“Tachoscan also reported six occasions of driving without a card, and the two occurrences on 19 September 2021 are unclear. Kamel Dhaouadi’s driver card was inserted in slot 2 (on ‘POA’ mode) and driven for 1 hour 7 minutes. The card was withdrawn from slot 2, inserted in slot 1 and driven for a cumulative period of 4 hours 24 minutes before commencing a 25 minute qualifying break. Kamel Dhaouadi’s card was then withdrawn and the vehicle driven without a card for 39 minutes, before Ajefor Miah’s driver card was inserted and a further period of 2 hours 9 minutes driving was carried out.

“In respect of the undertaking (other work being entered as a manual entry) on the licence, although the raw data shows the operator and two drivers have used the ‘manual entry’ facility, their records do not appear to be complete. The raw data for the operator and drivers show a significant number of days with no activities recorded which the operator failed to explain.

“The Working Time summary contains no records for drivers Kamel Dhaouadi and Ajefor Miah, and the screenshots of Ibrahim Mahmoud’s working time records do not correlate with the raw driver card data. Additionally, periods of absence are not included in the calculations. Apart from 18th and 19 September 2021, it is noted all other driving by Ibrahim Mahmoud during the reporting period was carried out in vehicles specified on licence OF1080020 in the name Greencore Food to Go Ltd.

“The operator has failed to adequately address most of the remaining shortcomings and any improvement measures given are superficial and lack detail. DBA outcome remains ‘unsatisfactory’.”

The operator subsequently claimed in correspondence with the TC that many of the systems were in place, but gave no supporting evidence to that effect.

Findings

The TC found that there were ‘serious shortcomings’ in terms of drivers’ hours and tachograph compliance that were nothing to do with Covid-19 as claimed by the operator. The TC believed that it seemed more likely that Mr Mahmoud was an inexperienced operator with a poor understanding of compliance and whose licence happened to start during the pandemic. Covid-19 was not an excuse for failing to ensure that he and his drivers fully complied with their obligations, the TC said, and noted that the breaches identified by the TE were a potential risk to road safety.

Reaching a decision, she made a number of adverse findings with regard to a breach of undertakings to observe the rules on drivers hours and tachographs and keep proper records and that vehicles would be kept fit and serviceable and a failure to advise of the change to the main occupation since there had been a material change in any of the circumstances of the licence-holder.

To hold a restricted licence, an operator must prove he or she still meets the requirements to hold a restricted licence. The operator in this case offered no evidence to that effect, so the TC said that it must follow that she make an adverse finding that main occupation test had not been satisfied.

With regard to good repute, she said that overall, she accepted there were difficulties that the Covid-19 pandemic had brought about for this operator and that it had a substantial impact on his earnings. However, she expressed concern that the TE’s findings were based only upon a snapshot of a six-week analysis of the records, but believed that the wider picture over an extended period was most likely just as bad, a state of affairs which she said was simply not acceptable. If effective analysis had been undertaken, the issues could have been identified, she believed.

Since Mr Mahmoud elected not to attend the PI, he was unable to offer any explanation for the shortcomings. However, the TC also found no evidence from him to indicate that his systems were improved following on from the DBA. The TE had noted that the operator’s response in terms of any improvement measures were superficial and lacking in detail, leading TC Hughes to conclude that there had been serious and unacceptable failings in terms of drivers hours and tachograph rules.

Mr Mahmoud had also failed in his obligation to notify material change to circumstances surrounding his main occupation and failed to comply with the finance condition. Had the true picture been provided by Mr Mahmoud, the TC suggested the revocation of the licence may have been sought at an even earlier stage.

The TC did give Mr Mahmoud some credit for accepting that his licence was required to be revoked, but found no detailed reasons to accept Mr Brown’s plea that she should stop short of making an adverse finding in relation to Mr Mahmoud’s good repute. The only reason put forward was that Mr Mahmoud faced difficulties as a result of the pandemic, which the TC said did not explain or justify the reasons for the drivers hours and tachograph breaches, or any of the other issues, including the failure to notify the Traffic Commissioner of material change regarding financial standing and main occupation.

Since Mr Mahmoud did not attend the PI, the TC found herself unable to establish the reasons for his failures and also whether he could be trusted with another licence, should he apply again in the future. In response to the question of whether the operator’s conduct was such that the it ought to be put out of business, after weighing up the facts presented, the TC concluded that there were far more negatives than positives in terms of consideration of Mr Mahmoud’s good repute. Given the adverse findings, including the range and extent of drivers hours and tachograph breaches, the TC considered that it was proportionate to find that Mr Mahmoud’s good repute to have been lost.

Since there was no evidence produced by the deadline of 31 May 2021 in response to the finance condition, the TC also found that financial standing was not proven for the three months prior to the inquiry, but accepted from the latest evidence that financial standing has been demonstrated from 27 November 2021 to 27 July 2022.

Decision

Although the TC accepted that there were some issues that had been brought about through the difficult situation created by Covid-19, she stated that those issues could not excuse the fundamental breaches uncovered, and as a consequence, mandatory revocation must follow. There were also additional grounds upon which she believed it was proportionate to revoke, namely material change as well as the other adverse findings relating to breaches of undertakings and conditions attached to the licence.

However, although the operator lost his good repute, overall the TC said it was not a case where it was proportionate to consider disqualification, but that should Mr Mahmoud wish to re-enter the industry at a later date, he will need to demonstrate that his good repute can be restored, and prove that he is much better educated in terms of operator compliance before any application can be given serious consideration.

The restricted licence was therefore revoked with effect from 2359hrs on 16 November 2022, allowing a short period after the hearing for Mr Mahmoud to be notified of the decision and ensure that the vehicle is no longer operated after the revocation date.