Neutral Citation Number: [2009] UKUT 215 (AAC)

Appeal No.  2009/401

IN THE UPPER TRIBUNAL            

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

ON APPEAL FROM THE DECISION OF

T.M. McCARTNEY TRAFFIC COMMISSIONER for the

NORTH EASTERN TRAFFIC AREA Dated 4 June 2009

Before:

Frances Burton

Leslie Milliken

David Yeomans

Appellant:

SANTOKH SINGH T/A SUNNY TRAVEL

Attendances:

For the Appellant: Gary Hodgson of Ford & Warren, Solicitors

Heard at:                       Victory House

Date of hearing:           11 September 2009

Date of decision:         10 October 2009

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be ALLOWED to the extent that the financial penalty is reduced to 5 x £350 i.e. £1,750 and the disqualification reduced to 3 years. These Orders will come into effect immediately.

REASONS FOR DECISION

1.               This was an appeal against the Decision of the Traffic Commissioner for the North Eastern Traffic Area dated 4 June 2009 when he revoked the Appellant’s PSV operator’s licence with effect from 23.59 hours on 26 June 2009 under s 17(1) and 17(3) of the Public Passenger Vehicles Act 1981, disqualified the Appellant under s 28 of the Transport Act 1985 from holding or obtaining an operator’s licence for 5 years from the same time and date and, under s 155 of the Transport Act 1985, ordered the Appellant to pay £11,000 to the Secretary of State for failure to operate registered services.

2.               The factual background appears from the documents, the transcript of the public inquiry and the written decision of the Traffic Commissioner and is as follows :

(i)              The Appellant held a standard international PSV licence granted on 14 January 2008 authorising 20 vehicles. The Appellant was also Transport Manager. At the public inquiry hearing before the Traffic Commissioner the Appellant was represented by Mr Paul Carless Senior and Mr Paul Carless Junior and the Appellant was present. VE Mann gave evidence on behalf of VOSA. Mr N. Holt and Mr A. Bishop gave evidence on behalf of Metro West Yorkshire Transport Executive.

(ii)             The evidence of Mr Mann was to the effect that there were gross maintenance shortcomings. The operating centre, which was shared with a taxi company for whom repairs were done, had a roof in such a state of disrepair that it was open to the elements. There had been 2 prohibitions between January and August 2008, including an ‘S’ marked prohibition indicating significant failure of maintenance, and safety inspections were not being carried out at 6 week intervals. 2 vehicles which had attracted roadside prohibition notices had had no safety records produced. The forward planning chart was ineffective and could not be cross referenced to those PMI sheets which were found. 2 other vehicles had no maintenance records at all and there was no evidence that any PMI inspections had been carried out. There was no responsible person in charge and there appeared to be a lack of control on the part of the operator. In Mr Mann’s opinion the type and condition of the vehicles was not adequately served by 6 week inspections even had they been carried out. There were also no tachograph records. The Appellant had been unable to produce valid insurance certificates for the periods of the roadside checks and a “jumble of paper” constituting “loose insurance documentation” had been produced at the PI, indicating that there had been significant periods when the vehicles appeared to be uninsured.

(iii)            Cross examined by Mr Carless Senior, Mr Mann indicated that at least 4 weekly PMIs were required, and that the operating centre required investment. Further he said that 1 part time fitter was insufficient for the fleet (as well as for the taxi maintenance) especially as he had no driving licence and that 2 or 3 more full time experienced mechanics were needed. Mr Mann was also concerned about the drivers who were “difficult and unwilling to listen to advice”, were not using the driver defect reporting system properly, or the tachographs, and required training and control by the operator. They also took vehicles without consent.

(iv)           In relation to bus reliability, Mr Holt had submitted a written statement of observations of his staff on 11 journeys on 18 February 2009, 6 of which had not operated and 5 had been substantially early, with a 100% failure rate well outside the established guidelines. No response had been received from the operator when this document was sent to him on 20 February 2009. There was a similar story on 9 April 2009. The evidence of the Appellant was that he held 10 discs but was using 5 vehicles and that the failure to operate some services was due to lack of roadworthy vehicles. However he produced a letter dated 29 April 2009 from Metro indicating excellent reliability on another occasion.

(v)             The Appellant produced some sketchy evidence of insurance of his fleet, including report to the police of theft of £100,000 insurance premiums he had paid to an agent but the Traffic Commissioner had not found this compelling.  Mr Carless  submitted that some vehicles were insured in the names of other known operators though he did accept some periods of lack of insurance. The Appellant had stated that he now had two fitters although he was unable to substantiate the qualifications he alleged that they held. The Appellant asserted that he was capable of “getting a grip” and offered a variety of undertakings for 4 weekly inspections, roller brake testing and training for his drivers plus engaging another full time mechanic. He admitted he had “made a bit of a mess of things”. However, when questioned by the Traffic Commissioner, the Appellant admitted revocation of an earlier licence and a disqualification in that regard, admitting that he had made a false declaration on the application form for the current licence, which had it been correctly completed, would have been heard at public inquiry. He said that he believed he had not had to declare any of this as it had been more than 5 years prior to his application.

(vi)           The Traffic Commissioner found that the licence had been obtained by a false declaration and that all the shortcomings of which evidence had been given were proved, finding that they were “so substantial” that the Appellant had lost his repute as operator and Transport Manager and that revocation was therefore appropriate. In addition he found the operator not to be of professional competence. He ordered the payment of £550 per vehicle under s 155 of the 1985 Act and disqualified the Appellant for 5 years as he was “not fit to be an operator in the industry” because of the problems “experienced in such a short period”.

3.           At the hearing of the appeal the Appellant was represented by Mr Gary Hodgson of Ford & Warren, solicitors, who told us that at the public inquiry the Appellant’s representation by a Transport Consultant had been poor. He said that much information had not been produced. He submitted that the Appellant had simply ticked the wrong box on the licence application form, but had not intended to deceive. He added that there had been some improvements in the operation which did not show a total lack of maintenance. He said that there had not been a total lack of insurance albeit that the insurance arrangements had not been straightforward as some policies were effected with others who had provided cover. With regard to the failure to operate some services, Mr Hodgson said that the Traffic Commissioner had not considered the case fully as there were positive aspects of compliance with registered services.

4.           Mr Hodgson provided us with a skeleton argument, for which we were grateful, containing a helpful chronology and schedule of insurances including dates and cover notes. He submitted that the Traffic Commissioner had not asked himself the question as to whether the operator’s failings were so serious that he should be put out of business. He had not asked about the consequences of revocation. He addressed each of the Traffic Commissioner’s findings in turn, disputed their overall significance and submitted that no credit had been given for the Appellant’s co-operation with the Vehicle Examiner, or to the fact that the Appellant had been a victim of fraud by the insurance agent. Moreover, he submitted, the Traffic Commissioner had failed to call Mr Holt to give oral evidence about the present position and to be cross examined, had failed to apply the guidance on the imposition of financial penalties under the Transport Act 1985 and failed either to take account of the Appellant’s reasonable excuses or to give credit for the compliant operation of services. He further submitted that the 5 year disqualification was excessive. He drew our attention to a number of authorities in support of his Submissions.

5.           We cannot agree with Mr Hodgson that the Appellant did not richly deserve the revocation and the loss of repute and professional competence found by the Traffic Commissioner. This was a very bad case. However we were concerned about the extent of the financial penalty, an extra burden on the Appellant on going out of business, and on the length of the disqualification.

6.           With regard to the financial penalty the purpose is to “focus minds so as to achieve the statutory purpose”: 2003/300 Andrews (Sheffield) Ltd and that “the regulatory considerations generally to be taken into account are ‘not for the purpose of punishment per se’” (Thomas Muir), which were referred to in 2008/151 Tuc Tuc Limited. We consider that the financial penalty should be reduced to 5 x £350, i.e. £1,750. Out of the 3 days monitored (a small sample in itself) the Appellant’s operation was compliant on the third date and was operating 5 vehicles only.

7.           With regard to the disqualification, we are of the view that 3 years would be sufficient to achieve the regulatory end.

8.           Accordingly the appeal is allowed to this limited extent and in respect of the revocation and loss of repute dismissed. These orders will take effect immediately.

Frances Burton

10 October 2009