Neutral Citation Number: [2010] UKUT 175 (AAC)

Appeal No. T/2010/13

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of

Beverley Bell TRAFFIC COMMISSIONER for the North Western Traffic Area Dated 12 January 2010

 

 

 

Before:

His Hon. Michael Brodrick, Judge of the Upper Tribunal

George Inch

Stuart James

 

 

Appellant:

MALCOLM THOMAS BERRY

 

 

 

Attendances:

For the Appellant: The Appellant did not appear but invited the Tribunal to determine the Appeal in his absence.

 

 

Heard at: Victory House

Date of hearing: 23 April 2010

Date of decision: 20 May 2010

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED and that the order of the Tribunal will come into effect at 2359 three weeks after the date of this decision.

 

 

 

 

 

 

 

 

 

REASONS FOR DECISION

 

 

1.           This is an appeal from the decision of the Traffic Commissioner for the North Western Traffic Area to revoke the restricted Public Service Vehicle, [“PSV”], operator’s licence held by the Appellant

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

(i)                   The Appellant is the holder of a restricted PSV operator’s licence, which was issued on 31 October 2008 and authorised the use of 1 vehicle.

(ii)                 On 30 October 2008 the Appellant attended a presentation given by VOSA designed to enable new operators to comply with the requirements of the operator’s licensing system.

(iii)                On 22 July 2010 a maintenance investigation was carried out by Mr. Barnes, a Vehicle Examiner. The investigation was unsatisfactory because (a) no safety inspection records were produced, (b) a forward planner was not in use and (c) the Appellant had changed his maintenance provider without informing the Traffic Area Office. The vehicle was examined and found to be in a satisfactory condition.

(iv)                On 27 July 2010 VOSA wrote to the Appellant inviting him to submit a written explanation in relation to the unsatisfactory maintenance investigation. On 8 August 2010 the Appellant replied apologising for his neglect in relation to maintenance systems and explained that he had recently purchased a new vehicle which would have a maintenance check every 12 weeks carried out by an experienced maintenance provider.

(v)                 On 3 November 2009 the Appellant was called to a Public Inquiry as a result of the maintenance shortcomings, apparent failure to comply with statements of intent and undertakings and concern that there had been a material change in circumstances in that the Appellant was not longer or good repute or of appropriate financial standing. The Appellant was requested to provide certain items of financial information, including bank statements, a week before the Public Inquiry.

(vi)                The Public Inquiry took place before the Traffic Commissioner on 12 January 2010. The Appellant attended but was not represented. The Traffic Commissioner reminded him of his attendance at the presentation in October 2008 and the warning which she had given that if operators did not do things properly they would be called to a Public Inquiry.

(vii)              Mr. Barnes confirmed the contents of his report, summarised above, which he adopted as his evidence. He confirmed that there had been no prohibitions either at the time of his report or since. Mr. Barnes said that he knew the maintenance provider but had not seen a written maintenance contract because the Appellant did not have one. He said that he had seen a driver defect reporting system and that the Appellant was using a diary to forecast inspections for a period six months in advance.

(viii)             The Appellant was then given an opportunity to state his position. He began by apologising for his mistakes. He said that when he had first applied to the council for a licence their inspections were once a year and he had simply thought in terms of once per year rather than 12 weekly intervals. He repeated that he had made a mistake and had no excuses but said that Mr. Barnes had put him right and that he had been ‘happy ever since’. The Traffic Commissioner pointed out that the Appellant had been told what to do at the presentation in October 2008 but had failed to act in the way required. He replied that Mr. Barnes had been very helpful, that they got on well together and that he had explained the position ‘one to one’.

(ix)                The Traffic Commissioner then turned to the question of financial standing. She said that she appreciated that there were no accounts, because the business had only started in October 2008. She asked what records the Appellant kept and he replied that he kept them in an ordinary book like a ‘day book’, but that he had not brought it. He was asked why he had not brought bank statements and replied that he thought that the Traffic Commissioner ‘wanted the accounts mainly’. The Traffic Commissioner then read out to the Appellant the terms of the request for financial information which appeared in the call-up letter, including the need to show that £3,100 was available. In answer to the repeated question as to why he had not brought bank statements the Appellant simply said: “I should have done, I’m sorry”. He went on to say that he could give no explanation for not bringing them.

(x)                 The Traffic Commissioner also asked the Appellant about the fact that Mr. Barnes had not seen a maintenance contract. He said that that was his fault and that when Mr. Barnes pointed out that there should be one he obtained it and took it to Mr. Barnes at once. He added that he had thought that he would be given the contract automatically on changing maintenance contractor. In relation to driver defect reports the Appellant said that he only wrote a report if he found a defect.

(xi)                The Traffic Commissioner gave an oral decision. She set out the facts which have been summarised above. She went on to say that the Appellant had attended and produced inspection records to show that the vehicle was being properly maintained and that he had produced evidence of forward planning and driver defect reporting systems all of which appeared to be in order. She then turned to the question of finance and the fact that the Appellant had not produced any financial documents as required. She also indicated that the Appellant had not given any adequate explanation for the initial failure of the maintenance regime or for the failure to produce financial documents. She concluded, on the basis of the Appellant’s previous business that he was not an unsophisticated individual and that he knew, when granted the licence, what was expected of him and knew the implications of a failure to comply with the terms of the licence. The Traffic Commissioner took into account the improvements put in place by the Appellant but considered that they were outweighed by the adverse factors, namely the inability to explain why proper systems were not in place from the outset and why he had failed to provide any financial evidence. The Traffic Commissioner considered that curtailing the licence was not appropriate and that suspension would serve no useful purpose. She pointed out that the evidence from the Appellant was that he was making a very small amount of money from the business which supplemented his pension. Taking that into account the Traffic Commissioner concluded that it was proportionate in all the circumstances of this case to revoke the licence, (on all the grounds set out in the call-up letter), and she ordered that revocation was to take effect at 2359 on 31 January 2010.

(xii)               The Appellant appealed against that decision by a Notice of Appeal dated 6 February 2010. His main ground of appeal was that as his vehicle had been found to be in a satisfactory condition and in view of the improvements which he had put in place the decision to revoke the licence, on the basis of shortcomings in the early part of the business, was very harsh.

3.           The Appellant wrote to the Tribunal to apologise for that fact that as he had just come back from holiday he would not be able to attend the hearing of the appeal. He invited the Tribunal to determine the appeal in his absence. He provided further material. Some of this material confirmed the position put before the Public Inquiry but the remainder related to the period after the Traffic Commissioner’s decision. As to the latter we are not permitted to take it into account because of the terms of Paragraph 9(2) to Schedule 4 of the Transport Act 1985, which provides that: “The Tribunal may not on any such appeal take into consideration any circumstances which did not exist at the time of the determination which is the subject of the appeal”.

4.           We have to consider whether the decision of the Traffic Commissioner was ‘plainly wrong’. The position in this case was that the Appellant had been called to a Public Inquiry to consider, amongst other things, the question of whether or not he was of appropriate financial standing. He had been specifically requested to provide financial documents, including bank statements, but had provided nothing capable of showing that he had available the £3,100, which was the minimum requirement for a restricted licence which authorised two vehicles. In that situation there was no material from which the Traffic Commissioner could possibly conclude that the Appellant was of appropriate financial standing. As a result she was required by the mandatory terms of s. 17 of the Public Passenger Vehicles Act 1981 to revoke the licence.

5.           On its own that conclusion is sufficient to result in the failure of this appeal. However we would simply add that in our view the Traffic Commissioner correctly balanced the favourable and unfavourable factors in this case and we are far from being persuaded that she was plainly wrong to conclude that revocation was proportionate and appropriate on the other grounds in addition.

6.           For these reasons the appeal is dismissed.

7.           The Appellant has continued to operate with the benefit of a stay. The Traffic Commissioner brought her decision into effect just under three weeks from the date on which it was given. Our decision is to come into effect at 2359 three weeks after the date of this decision.

 

 

 

Michael Brodrick, Judge of the Upper Tribunal,

Principal Judge for Traffic Commissioner Appeals.

20 May 2010