KHAN t/a KV CARS and COURIERS LTD
TRANSPORT for LONDON
This is an appeal against the revocation of a London Private Hire Vehicle Operator’s licence by the Respondent on 20th February 2012.
The reasons given for revocation were that on the 28th January 2012 compliance officers found a Tassaduq Hussein (whom they believed was working for the Appellant) to be operating from unlicensed premises, together with “….your less than satisfactory compliance history…”.
This appeal is a hearing de novo, but not only must I give the Respondent, (i.e the licensing authority)’s decision great weight, but also ( in accordance with the decision in the case of Hope and Glory) I should not overturn that decision unless it is wrong on the basis of the evidence that I have heard.
I have read all the papers and statements put before me in the parties’ bundles. I have also heard live evidence from Terry Georgiou, Imran Khan, Shiraz Rafiq, P.C Martin, P.C Pilbeam, Carlo Delgaudio and John Ulyett.
Mr Khan has been involved in this business for quite a few years, initially assisting his father, who held the previous operator’s licence and effectively running the business from 2009.
The present business has about 80 drivers on its books. They are not employees of the company. The company also owns about 35 fleet cars and has its own garages and carwash, available for all drivers to use.
The centre of the operation is at 129a Lavender Hill, London SW11, but after written application, the Appellant has also been licensed to operate in other venues such as clubs and theatres.
Over the years there have been various compliance inspections. These can be divided into those relating to driver and booking records and those relating to compliance with recording of complaints, display of operator’s licence and suitability of premises and operating requirements.
Most of the inspections of driver etc records took place between 2003 and 2008. In those cases the company never passed on the first inspection and a follow up visit was required which usually resulted in a passed inspection. Mr Khan says that this was the norm and accepted by the licensing authority. That is not accepted by the Respondent. I also do not agree that that is acceptable. The whole point of the regulations is that the records should be immediately available and complete.
The most recent records compliance inspections were on 26th July 2011 and 12th, 13th and 15th June 2012.
The inspection for 26th July 2011 was by prior written appointment. It was still a failed inspection and indeed showed failures that were not subsequently rectified, although it is fair to say that in the general history of this licence repeat inspections have usually shown compliance. Mr Khan stated that he did not receive the appointment letter and gave an explanation that the business had problems with receiving post which did not include the company name in the address, but only Mr Khan’s details with the correct address. I am less than impressed with this explanation. If this was such a problem as described by Mr Khan (who stated that this was a common occurrence) I would have expected him to have taken steps to ensure that it did not occur.
On 12th June 2012, acting on information received, the police attended 129a Lavender Hill and arrested in the office a Mr Asad Khan, apparently Mr Khan’s cousin and an illegal overstayer in this country. The suggestion is that he was working as an employee of Mr Khan, and I believe that Asad Khan has been charged with an immigration related offence. Mr Khan has not been charged with any offence, nor, as I understand it has he been or is he going to be investigated in connection with any such offence. In the circumstances I have not considered Asad Khan’s position, if any, in the Appellant company of any relevance in my considerations, save that it prompted the police inspections of 12th and 13th June.
The police evidence is that, on inspection, they found the records so poor that they could not carry out a proper inspection and referred the matter to the Respondent.
The explanation given is that the police did not understand the computer system and so needed help in their inspection, but were unable to remain on that day when such help was available. When they returned on the following day, such help was unavailable as Mr Khan had a meeting elsewhere. While I am willing to accept and understand this explanation, it nevertheless means that on 13th June the police were unable to carry out a full inspection just because Mr Khan was not there. It is a requirement of the licence that the records are available for inspection at any time and clearly they were not. If they are not in a readily accessible format then someone must be there at all times to assist in their inspection.
On 15th June 2012 when compliance officers attended inspection was refused. This refusal was on the basis of advice from the Appellant’s solicitors. It is now accepted that that advice was wrong. At the very least it means that the Appellant is unable to show that his records were complete on that day. In fact it seems to me that an experienced operator should know his duties under the regulatory provisions and it is not sufficient simply to hide behind the advice of his solicitors.
There are other complaints in respect of compliance. The first is with regard to the recording of complaints. Mr Khan states that these complaints were not made directly to the business, but to the Respondent and thus the Appellant could not record them until told of them by the Respondent. I have no details of these complaints and so I am not able to be clear that there was some fault that was beyond a very minor regulatory matter.
The second is in regard to the lack of notification by the operator that he has ceased trading from certain premises. These matters have related to venues that have closed either for refurbishment or completely. In either case the immediate consequences to the public are not great. However it does involve the Respondent in unnecessary work and investigation, and the diversion of officers from other work.
All in all, I agree with the Respondent that the Appellant has a poor history of compliance.
The incident that prompted the full review of this licence took place on
28th January 2012.
On the 1st November 2011 the Respondent received the Appellant’s application to add a further operating centre to its licence at Aquum, 68-70 Clapham High Street. On the 11th November 2011 the Respondent carried out a compliance inspection of the premises to check whether or not they were suitable. There was a requirement that the operator remain inside the premises, but on that basis the inspection was passed and the Appellant was told of this. In previous applications there has been a decision about the grant within a short period, normally about two to three weeks. In the Appellant’s experience when the inspection has been passed the grant of the addition has always been made.
In this case no decision was made. It has since transpired this was as a result of consideration of a new policy that the Respondent intended to implement. The Appellant was not aware of the reason for the delay and it is agreed that he pressed the Respondent for a decision on several occasions and asked for the matter to be “escalated.” This seems to have culminated in a telephone conversation between the parties on the 29th November 2011. There is a transcript of a small part of the conversation, but not the salient part. Shiraz Rafiq spoke to someone from the Respondent’s office. He did not get a name, nor did he take any note of his conversation, but at the end of it he says he was told that all was in order and he understood it just to be a matter of printing the licence and posting it out and that it would be with the Appellant within a week or so. He also said that he was told that the licence was “in the post”. He passed on this information to Mr Khan.
In court the recording of part of the conversation was played and Mr Ulyett said that he thought that it was Lucy Hoye’s voice. She was not a witness.
Mr Khan said that he trusted Mr Rafiq and thought his message was reliable.
It is put forward by the Appellant that by this conversation the Respondent was telling the Appellant that the licence had been granted and therefore the Respondent should in effect be estopped from complaining that there was no operator’s licence for Aquum thereafter. I am not persuaded. Mr Rafiq’s evidence is vague at best as to what was actually said. He obviously knew the importance of such information and yet did not get the name of the person to whom he spoke. I am also not persuaded that whatever he said to Mr Khan led Mr Khan to believe that the licence had actually been granted. Mr Khan is an experienced operator and he also would have expected to have a name for such important information. I also accept the evidence of John Ulyett that he had conversations with Mr Khan after the 29th November and that at no time did Mr Khan say to him that he understood that the licence had in fact been granted. In addition Mr Ulyett states that he told Mr Khan on regular occasions that the licence had not yet been granted. It is unconvincing that this is anything more than at best a misinterpretation of what was said by the Respondent’s officers.
It is also a requirement of an operator, of which Mr Khan is aware, that an operator’s licence must be displayed at the premises it covers.
In any event on the 28th January 2012 compliance officers found Tassudaq Hussein outside Aquum booking cabs for Aquum’s customers. (Even if the operator’s licence had been in force it would not have permitted bookings to be taken outside.) He was wearing a high visibility jacket with the words “Aquum in association with KVC transport 0207924666” on the back. He had on him a mobile phone with an application that allowed him to make direct bookings with the Appellant’s main office and a hand held device for providing the customer with a booking ticket. When asked who he worked for he said “KVC, Imran Khan” Mr Georgiou from Aquum and Mr Khan have told me that that is not the case and that in fact he was working for Aquum, although he had a “day job” as a controller for the Appellant. Mr Georgiou did not provide any employment records, payslips or anything to support what he said. He also conceded that Aquum did not hold an operator’s licence. He said that a condition of his premises licence was that he had a taxi marshal and Mr Khan had recommended Mr Hussein for that position.
I have to say that it seems to me very likely that Mr Hussein was in fact working for the Appellant, when the Appellant did not have an operator’s licence at those premises. Even if I am wrong in that, it is clear that the Appellant gave to Mr Hussein the equipment that he needed to make bookings from those premises in the knowledge that neither they nor Aquum held an operator’s licence there.
I should however make it clear that I accept that the police were very much in favour of there being an operator’s licence at that venue and that the inspection had been passed.
In conclusion I must consider whether in light of the above findings it can be said that the Appellant has behaved as a person fit and proper to hold an operator’s licence, and was the Respondent’s decision wrong in that respect. All in all I agree with the finding of the Respondent that the Appellant was not a fit and proper person under the terms of section3 of the Private Hire Vehicles (London) Act.
In consequence the Respondent decided that the appropriate action was to revoke the licence.
The Appellant argues that such a penalty is disproportionate to the infractions. That the main breaches have been regulatory rather than breaches that put the public at risk. I would agree that that is the case, at least in the direct and immediate effect of most of the breaches in this case.
I have been referred to various authorities that hold that in making such a decision I should not have regard to any financial consequences. Those cases have involved individual private hire vehicle licence holders. Although the consequence may be a complete loss of livelihood and whatever follows from that, the circumstances for an operator are likely to be not only the loss of livelihood, but there may (as in this case) still be substantial business commitments such as rent and hire purchase. There may also be the consequent loss of jobs for the employees of the business. These are consequences that I think it is valid for me to consider.
It is clear that in this case there have been quite a few warning letters sent to Mr Khan, which have had no obvious effect on the Appellant’s compliance with the regulations.
I have also been shown what I believe is the staff manual for the Respondent in their dealings with private hire vehicle matters. Paragraph 10.2 deals with suspensions and revocations of operator’s licences. It reads
“In practice the suspension of an operator’s licence is rarely practicable as once the licence is suspended and the operator is no longer able to lawfully accept bookings, their licensed private hire drivers and customers move on to a different licensed operator. In reality the operator, whilst holding an operator’s licence (albeit a currently suspended one) no longer has a business to operate, and by the time a suspension is completed the operator has effectively lost his business.
Therefore, as a period of suspension for an operator (however short) has the same impact as a revocation the option to revoke is likely to be taken in all cases.
It seems to me that this is overstepping the considerations which should be borne in mind by the licensing authority, i.e the Respondent. It may well be that the reality is that the business will fold as a consequence of a suspension. But it may be that that can be avoided by the operator. The only circumstances in which the licence should be revoked is if the behaviour by the operator has been such that he is not and cannot be a fit and proper person to hold an operator’s licence.
I am not satisfied that that is the case here. Although the breaches have been serious, I think that in this case it would be sufficient to suspend the Appellant’s operators licence for a short period.
I therefore suspend the Appellant’s operators licence for seven days. This will allow the Appellant to try and maintain his business and keep his employees in employment, yet will serve to ensure that the regulations must be fully complied with if he is to retain this licence in the longer term. If, however, the result is the loss of the business, then so be it; that is not a consideration for this court as long as it is satisfied that the penalty is proportionate in all the circumstances