Neutral Citation Number: [2010] UKUT 170 (AAC)

 

Appeal No. T/2010/001

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of John Baker Deputy Traffic Commissioner for the South East and Metropolitan Traffic Area

Dated 16 December 2009

 

 

 

Before:

His Hon. Michael Brodrick, Judge of the Upper Tribunal

Leslie Milliken

David Yeomans

 

 

Appellant:

DENISE & PETER WALSH t/a WALSH SKIP HIRE

 

 

 

Attendances:

For the Appellant: Doug Sturman

 

 

Heard at: Victory House

Date of hearing: 31 March 2010

Date of decision: 30 April 2010

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED and that the revocation of the licence and the disqualification of Mr. Peter Walsh are both to take effect from 2359 on 27 April 2010.

 

 

 

 

 

 

 

 

 

 

REASONS FOR DECISION

 

 

1.          This is an appeal from the decision of the Deputy Traffic Commissioner for the South East and Metropolitan Traffic Area to revoke the Standard National Goods Vehicle operator’s licence held by the Appellant, with effect from 2359 on 17 January 2010, and to disqualify Mr. Peter Walsh, from holding or obtaining an operator’s licence for 3 months from the date of the revocation.

2.          The factual background to the appeal appears from the documents and the Deputy Traffic Commissioner’s written decision and is as follows:-

               (i)             The Appellants are the holders of a Standard National Goods Vehicle operator’s licence, which commenced in March 1994 and authorised 4 vehicles, with 2 vehicles in possession.

              (ii)             On 23 January 2006 the Appellants attended a Public Inquiry following an earlier conviction for a tachograph offence and an unsatisfactory fleet inspection, which took place on 16 May 2005. That inspection revealed that there were no driver defect reports available, that two unspecified vehicles had been used, that prohibitions had been issued, that preventative maintenance inspection records were not available for one vehicle, that no maintenance contract was available and that the annual test rate was poor. Having heard the evidence the Traffic Commissioner curtailed the licence from 4 vehicles to 2 for a period of two weeks and he accepted an undertaking that the Appellants’ vehicles would be given a roller brake test twice per year.

            (iii)             On 9 October 2006 a fleet inspection was carried out, which was satisfactory.

            (iv)             As a result of the number of prohibitions, issued in a short space of time, (a total of 7 since the Public Inquiry in January 2006, of which 6 were immediate prohibitions), a Fleet Inspection took place, commencing on 24 November 2008 and ending on 8 May 2009. It was unsatisfactory for a number of reasons, in summary, maintenance records were unsatisfactory and the defects found when prohibitions were issued or safety inspections were made should have been detected by walk around checks or when safety inspections were undertaken, with the result that ‘S’ marked prohibitions were issued at the fleet inspection. Despite the undertaking given at a Public Inquiry on 23 January 2006 there was no record of roller brake tests being carried out. In the case of one vehicle a safety inspection sheet, dated 30 June 2008 showed that serious defects had been found but the sheet was endorsed ‘inspection only’ and no work was carried out to rectify the defects, other safety inspection sheets were routinely signed off in the declaration section even though defects had not been repaired, with the result that the same defects appear on later sheets. The maintenance provider accepted, when questioned by the Vehicle Examiner, that it was a mistake to do this on the assurance of the Appellants that the defects would be repaired. In addition the annual test rate had deteriorated in the period after the Public Inquiry in January 2006, with poor brake performance being one of the top reasons for failure. Mr. Walsh explained that he was unable to produce a full set of preventative maintenance records because some had been stolen, (it was accepted on behalf of VOSA that a crime had occurred). Mr. Walsh was requested to try to obtain copies from his maintenance provider. The Appellants were given an opportunity to comment on these findings. Mr. Walsh said that the problems with walk-round checks were mainly due to one particular driver against whom disciplinary action had been taken. He added that he had written to the maintenance provider asking for co-operation in improving the MOT pass rate. The reply suggested that the vehicles should be submitted 2-4 days before the date of the MOT Test and after they had been steam cleaned.

             (v)             On 14 September 2009 the Appellants were called to a Public Inquiry, which was to take place on 20 October 2009. The grounds included the fact that prohibitions had been issued, concern that an undertaking had not been fulfilled, that there had been a material change in circumstances, and that the Appellants no longer satisfied the requirement to be of good repute.

            (vi)             On 17 September 2009 a report was received from a Traffic Examiner, who in May 2009 had begun an investigation to establish whether the Appellants were complying with Drivers’ Hours Regulations and Tachograph Rules. A previous analysis of tachograph charts had revealed a number of breaches, as a result of which a letter was sent advising that further failures could result in prosecution.

           (vii)             A total of 86 charts were analysed covering the period January to March 2009. They showed that nearly 4,000 kilometres was not accounted for and that there were a total of 44 breaches, the most numerous being exceeding 4.5 hours driving without the required break, (26 offences) and failing to enter details on a tachograph chart, (4 offences). The conclusion was that these results indicated an inadequate level of tachograph chart analysis by the Appellants and an insufficiently robust system for collecting tachograph charts. Overall it appeared that the Appellants were not complying with the statement of intent in relation to Drivers’ Hours and Tachographs.

         (viii)             When he was interviewed under caution in relation to the alleged offences Mr. Walsh explained that the driver, who was subsequently prosecuted may have taken correct breaks, because it was common practice for others to move vehicles when they were in the yard and being loaded or unloaded. He also said that he had told drivers to use the mode switch but that this did not always happen because loading and unloading took such a short time.

            (ix)             On 9 October 2009 one of the Appellant’s drivers pleaded guilty to 6 offences of exceeding 4.5 hours driving. He was fined £200 and ordered to pay £206 costs.

              (x)             When the Public Inquiry convened on 20 October 2009 Mr. Sturman applied for an adjournment in order that he could have an opportunity to examine the original tachograph charts. He also applied to have access to the original charts, in his own office, in order to examine them with his own equipment. Appropriate directions were given for the delivery and safe-keeping of the charts and for the exchange of further witness statements, after which the tachograph aspect of the case was adjourned but the Public Inquiry continued with evidence in relation to the concerns about maintenance.

            (xi)             Mr Lewis, a Vehicle Examiner, gave evidence about the history of the licence and the Fleet Inspection, which took place between November 2008 and May 2009, which has been summarised above. He also produced some photographs to demonstrate the state of the site and he said that he had refused to examine the vehicles at the operating centre because the depth of the mud meant that it could not be done. He accepted that the state of the site would make a daily walk-round check, on site, impossible. He pointed out that the brake section of the preventative maintenance records was never completed, which suggested that there was a breach of the undertaking to put vehicles through a roller brake test twice per year, and that a number of prohibitions were issued for defects, such as tyres worn below the legal limit, which would have been easily spotted by drivers carrying out a daily check. Mr. Lewis concluded that driver pre-checks were poor and that defects, which should have been discovered and repaired, were not being noticed. He accepted that defects could be missed because of the state of the site and the state of the vehicles but he said that the overall situation pointed to a ‘total lack of control’ on the part of the Appellants because rectification was not taking place and ‘it seems to have gone downhill’.

           (xii)             In cross examination Mr. Lewis accepted that in order to clear some of the prohibitions the vehicle in question would have had to undergo a rolling brake test. However he pointed out that this was a reaction to a failure in maintenance rather than forming part of a preventative maintenance programme. He accepted that the maintenance provider was quite thorough in the defects he reported. He was asked about the difference between the satisfactory inspection in 2006 and the recent inspection. He replied that the Appellants appeared to have lost control over the drivers, the reporting of defects, maintenance and the rectifying of defects.

          (xiii)             Mr. Walsh then gave evidence. He said that he had been operating the skip business for about 18 years and that they had been at the operating centre for about 8 years. He said that most of the problems related to one driver who was still employed by the Appellants. He explained that the Appellants had intended to dismiss the person in question but that he had had a nervous breakdown and had tried to hang himself and that he was anxious not to ‘push him over the edge’. Mr. Walsh went on to say that he had explained to this driver that he had to do a daily walk-round check and that the driver had been shown what to do. In addition one of the other drivers had been asked to double check every few days. Mr. Walsh explained that replacement wheels and tyres were kept on site and available to drivers who found defects.

         (xiv)             Mr. Sturman then asked Mr. Walsh about the undertaking to conduct roller brake tests. Mr. Walsh said that he had forgotten to test one vehicle but that another, L984 MGY, had had so many prohibitions that ‘it must be the most MOT’d vehicle around’ and that it had a brake test every time it went back for the removal of a prohibition. He added that he thought that such a brake test was sufficient to comply with the undertaking.

           (xv)             In cross examination Mr. Thomas asked about a number of occasions on which vehicles appeared to have been sent for preventative maintenance inspections after the six week interval had expired, suggesting that there was a lack of control and forward planning. Mr. Walsh referred to the fact that on occasions prohibitions had been cleared shortly before the date for an inspection. Mr. Thomas then pointed to an occasion on which a prohibition was issued 10 days after the due date for a preventative maintenance inspection, suggesting that it had occurred due to a failure to comply with forward planning schedules. Mr. Walsh tried to work out the dates but was not further pressed for an answer. The Public Inquiry then adjourned until 8 December 2009.

         (xvi)             On 5 November 2009 Mr. Sturman served a 61 page witness statement containing his analysis, chart by chart, of the 86 tachograph charts. He set out his reasons for saying that 5 of the alleged offences were not proved and he pointed out that 15 of the alleged breaches would not have been offences under the previous legislation, and that 6 out of the 15 would be described as ‘minor’ under the current legislation. In addition he argued that 2 of the remaining 24 offences could also be described as minor and that there were 8 occasions on which the explanation for an apparent breach may have been that the vehicle was moved by a yardman. Finally he pointed to the fact that 12 of the offences did not relate to excessive hours.

        (xvii)             Fleet Management Solutions were instructed to provide a full audit analysis of the Appellants tachograph charts for the period 29 June to 4 October 2009. They analysed 56 charts and concluded that there was ‘almost full compliance with the Drivers Hours Law Regulations and the requirements laid down in the Road Transport Working Time Directive’. However there were still errors in relation to name, date, location and other matters.

       (xviii)             On 8 December 2009 the Public Inquiry reconvened to deal with the evidence in relation to tachograph infringements. Mr. Sturman appeared for the Appellants and Mr. Thomas for VOSA, but, owing to a misunderstanding Mr. Walsh was not present. Mr. Thomas began by referring to the audit conducted by Fleet Management Solutions. He pointed out that they had only examined 56 tachograph charts for a period of three and a half months whereas VOSA had examined 86 charts for the months of January and February 2009 and questioned whether there had been full compliance, because it would appear that charts were missing.

          (xix)             VOSA’s evidence in relation to tachograph infringements was given by Mr. Sadler and it has been summarised above. In addition Mr. Sadler adopted the concerns expressed by Mr. Thomas at the start of the adjourned Public Inquiry. Mr. Sadler accepted that there was a difference between a driver who exceeded a time limit for driving by a few minutes and one who exceeded it by a substantial period, but he added that his concern was the continuous appearance of breaches.

           (xx)             Mr. Sturman presented his statement and drew attention to the European Commission’s classification of the seriousness of offences. He agreed with the Deputy Traffic Commissioner’s summary of his position, namely that while there were a comparatively large number of infringements in relation to drivers hours the total daily driving hours were not at the serious end of such infringements. Mr. Sturman also accepted that failure to use the mode switch properly was classified as a serious infringement.

          (xxi)             Steps were taken to contact Mr. Walsh, who eventually arrived at the Public Inquiry and explained that he had been sent a letter saying that it would reconvene at 2.00 pm. The Deputy Traffic Commissioner outlined what had taken place in his absence and Mr. Walsh then gave evidence. He confirmed that since the earlier hearing the maintenance provider had bought an approved brake testing meter. He also confirmed that secondary checks were being carried out on the vehicle driven by the driver with the worst record, two or three times per week, to ensure that he was carrying out walk-round checks and completing his defect book. However he agreed that he had decided that they would ‘have to part company’ and that he would probably be dismissed ‘this week or next week’.

        (xxii)             Turning to the tachograph issues Mr. Walsh agreed to the imposition of a condition requiring tachograph analysis and he also agreed to give an undertaking to attend a Freight Transport Association CPC refresher course early in 2010. He explained that there had been a downturn in business with the result that the ‘Y’ registered vehicle had hardly been used during the period covered by the analysis conducted by Fleet Management Services. But he also accepted that charts for the ‘L’ registered vehicle were missing.

       (xxiii)             In cross examination Mr. Walsh accepted that if he had looked at the 86 charts examined by VOSA it would have been fairly obvious to him that there had been breaches of the rules. When it was suggested that he was ‘not that committed’ to the undertaking in relation to tachographs and drivers’ hours he accepted that his system was not as tight as it should have been. Mr. Walsh was asked about his own charts and his failure to complete the information required in the centrefold, in particular the mileage and destination at the end of the day. He said that the destination was always the same and he disputed the suggestion that his attitude was reckless.

       (xxiv)             The Deputy Traffic Commissioner then asked Mr. Walsh about the 58 charts analysed by Fleet Management Services, pointing out that 28 of the charts were for the ‘L’ registered vehicle and 30 of the charts were for the ‘Y’ registered vehicle and asking Mr. Walsh why he had said that the ‘Y’ registered vehicle had not been used much during that period. Mr. Walsh replied that obviously there should have been a lot more charts but that the driver of the ‘L’ registered vehicle had quite a few charts missing. The Deputy Traffic Commissioner then questioned the statement in the report from Fleet Management Services that there was ‘almost full compliance’ given that one driver’s charts showed 35 infringements. Mr. Sturman intervened to say that it appeared that Fleet Management Services were referring to drivers hours infringements rather than to tachograph infringements generally.

        (xxv)             The Deputy Traffic Commissioner asked Mr. Walsh about the systems which he had in place. Mr. Walsh replied that when the drivers turned up for work they were supposed to walk round their vehicle to check it, that they were provided with a torch to enable them to check the vehicles when it was dark and that they were then supposed to fill in their defect sheet and to take the vehicle to the maintenance provider if any defect was found. He said that he received the defect reports ‘every day or every other day’ or after a defect had been repaired and that they were then kept in the office. In relation to tachographs he said that he ‘always sort of looked at the tachographs’ himself but he accepted that that was not good enough.

       (xxvi)             Finally Mr. Sturman established through Mr. Walsh that even a short suspension of the licence would be fatal to the business, while the business would probably survive a curtailment to one vehicle but that it would be ‘in tatters’ at the end of it.

     (xxvii)             The Deputy Traffic Commissioner gave a written decision dated 16 December 2009. He reviewed the evidence in some detail and summarised the conclusions in Mr. Sturman’s report. He found that there had been various breaches of the provisions in s. 26 of the Goods Vehicles (Licensing of Operators) Act 1995, ["the 1995 Act"]. He then turned to the question of what regulatory action, if any, he ought to take, bearing in mind the decisions in Bryan Haulage Ltd and Priority Freight Transport Ltd and Paul Williams, 2009/225. He pointed out that the maintenance issues raised in the current Public Inquiry were the same as those raised in the 2006 Public Inquiry. He concluded that in some respects, (he had in mind the MOT failure rate and the breach of the undertaking in relation to roller brake testing), the situation was worse. He expressed particular concern about the occasion on which serious defects, including braking faults, were identified, but not repaired and the vehicle was allowed back onto the road. He considered that the attitude of the Appellants to tachograph record keeping provided further evidence of an unacceptable attitude on the part of the Appellants. He said this: “A combination of excessive driving periods and vehicles with serious defects brings road safety factors to the fore”.

    (xxviii)             The Deputy Traffic Commissioner went on to ask the question raised in Priority Freight, namely ‘how likely is it that the operator will operate, in future, in compliance with the licensing regime’? The Deputy Traffic Commissioner took into account the past history, when the Appellants gave an undertaking, but failed to comply with it, he also took into account his conclusion that the Appellants’ attitude towards compliance had not changed, even in the short term, he also concluded that the steps proposed by the Appellants would not achieve the change in attitude which was required. For those reasons the Deputy Traffic Commissioner concluded that he could not be satisfied that the Appellants were likely, in the future, to operate in compliance with the licensing regime. In the light of all these conclusions the Deputy Traffic Commissioner took the view that the Appellants ought to be put out of business and on that basis he revoked the licence on the ground that the Appellants were no longer of good repute. In addition he disqualified Mr. Walsh for a period of 3 months.

       (xxix)             By a Notice of Appeal dated 31 December 2009 the Appellants appealed against that decision. The grounds of appeal, in summary, were that the Deputy Traffic Commissioner had failed to deal adequately with the central submission advanced on behalf of the Appellants, that he had failed to conduct a proper balancing exercise, that he had misdirected himself in significant respects and that he was wrong to order disqualification.

3.          At the hearing of the appeal Mr. Sturman appeared on behalf of the Appellants. He provided us with a skeleton argument, for which we are grateful, in which he developed each of the four grounds advanced in the Notice of Appeal.

4.          When he developed these points in his oral argument Mr. Sturman submitted that the crux of the case could be put in the form of two questions: (i) did the Deputy Traffic Commissioner reach a balanced judgment and (ii) did he consider all the evidence? In answer to the second question Mr. Sturman submitted that the Deputy Traffic Commissioner’s decision made no mention of his detailed report and that it failed to take into account the points which that report made that many of the infringements were not serious infringements. Mr. Sturman went on to submit that the Deputy Traffic Commissioner should have made findings chart by chart before coming to any conclusion. He also submitted that the Deputy Traffic Commissioner had failed to take account of the fact that most of the infringements and most of the missing charts were caused by one driver, who was about to be dismissed. Mr. Sturman submitted that the evidence showed that the situation was improving and that the Deputy Traffic Commissioner failed to take this into account and should have given the Appellants an opportunity to show that the improvement could be sustained. In relation to the vehicle on which serious defects were found, but not repaired, Mr. Sturman submitted that there was no evidence that it went back on the road, so that the Deputy Traffic Commissioner was wrong to attach so much weight to this point. Mr. Sturman accepted that the Appellants systems were bad but he submitted that they were not so bad that the Appellants should be put out of business, instead they should have been left under no illusions that they had only one more chance.

5.          In our judgment this was not a case where it was necessary for the Deputy Traffic Commissioner to go through the tachograph evidence on a chart by chart basis. Whether or not the infringement shown on a particular chart was serious was never going to make any difference, in this particular case, to the overall conclusion, namely that the Appellants did not have an adequate system for collecting and checking charts and that they still did not have an adequate system by the date of the adjourned Public Inquiry. We are also satisfied that the difference between 46 charts with infringements, as referred to by the Deputy Traffic Commissioner in his decision, and 39 with infringements, which appears to have been the agreed figure is not sufficient to call into question the general conclusions reached by the Deputy Traffic Commissioner about the lack of any proper system. It follows in our view that the first two grounds of appeal must fail.

6.          The third ground of appeal was directed to a statement in paragraph 23 of the Deputy Traffic Commissioner’s decision, which, according to Mr. Sturman, implied that the Appellants had not previously reached a compliant standard after a Public Inquiry. Mr. Sturman submitted that this was wrong because there had been a satisfactory fleet inspection following the Public Inquiry in 2006. In our judgment Mr. Sturman has misunderstood what the Deputy Traffic Commissioner said, which was: “Once again I have concluded that I cannot be satisfied that this will be the case. I find this because firstly the operator has been to a Public Inquiry before, given undertakings and continued to fail to comply and secondly because he has failed to persuade me that his attitude towards compliance has changed even in the short term”. In our view the Deputy Traffic Commissioner particularly had in mind the undertaking that the vehicles would undergo a roller brake test twice per year. In our judgment there was clear evidence that that undertaking was broken, hence the conclusion reached by the Deputy Traffic Commissioner was well founded. In addition there was clear evidence that the Appellants attitude to compliance had not changed, even in the short term. In our view the third ground of appeal wholly fails to take account of the bigger picture, which was that the Appellants failed to demonstrate the ability to operate on a basis which would mean that they were likely to be compliant in the future. In our view not only was that conclusion justified by the evidence but, in addition, it provided, in this case, a powerful reason for concluding that the Appellants ought to be put out of business because they were no longer of good repute. It follows that the third ground of appeal fails.

7.          The fourth ground of appeal was directed to the issue of disqualification. In effect the points made in support of the proposition that the Deputy Traffic Commissioner should not have disqualified Mr. Walsh suggest that the Deputy Traffic Commissioner failed to take into account or alternatively gave too little weight to these factors. We cannot agree. The critical factor in the present case was the overall picture which was that Mr. Walsh was unable to exercise proper control over this business, either in terms of making proper arrangements for daily checks and maintenance or in terms of compliance with the drivers’ hours and tachograph regimes. In our view the Deputy Traffic Commissioner was correct when he concluded that for the time being it is not appropriate for Mr. Walsh to hold or obtain an operator’s licence. This ground of appeal also fails.

8.          The appeal is therefore dismissed. The revocation of the licence and the disqualification of Mr. Peter Walsh are both the take effect from 2359 on 27 April 2010.

9.          By way of postscript we would add a few words of warning. The general rule is that the same person cannot be both an advocate and a witness in the same proceedings. In the present case Mr. Sturman’s report was agreed so no harm was done and no problems arose, because there was no need for him to give evidence. However a position may arise in the future where one of his reports is disputed and it is necessary for him to give evidence. If that situation arises he and his clients will face a choice. If he is to remain as an advocate no further use can be made of the report, unless someone else can be found who is in a position to present it in evidence. If he is to become a witness then steps will have to be taken to find other representation for the operator.

 

 

 

 

 

 

 

Michael Brodrick, Judge of the Upper Tribunal, Principal Judge for Traffic Commissioner Appeals.

30 April 2010