Neutral Citation Number: [2010] UKUT 338 (AAC)

Appeal No. T/2010/38

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of TOM MACARTNEY

Traffic Commissioner for the North Eastern Traffic Area

Dated 19 April 2010

Before:

Frances Burton, Judge of the Upper Tribunal

John Robinson, Member of the Upper Tribunal

David Yeomans, Member of the Upper Tribunal

Appellant:

ROADMASTER LOGISTICS LIMITED

Attendances:

For the Appellant: No appearance

Heard at: Victory House, 34 Kingsway, London WC2

Date of hearing: 4 August 2010

Date of decision: 31 August 2010

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED with immediate effect.

REASONS FOR DECISION

1.           This was an appeal against the Decision of the Traffic Commissioner for the North Eastern Traffic Area dated 19 April 2010 when he revoked the Appellant company’s Standard National goods vehicle operator’s licence authorising 1 vehicle, with 1 vehicle in possession under ss.26, 27(1)(a), 27(1)(b), 27(1)(c) and Schedule 3 of the Goods Vehicle (Licensing of Operators) Act 1995 (“the Act”), with effect from 23.59 hours on 6 May 2010, and disqualified the operator company under s.28 of the Act from holding or obtaining an operator’s licence for a period of 2 years from the same date.

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 company had obtained a licence on 1 December 2008. Mr Junaid Mayet was the sole Director and the original Transport Manager had been a Mr Stuart Bruce. There had been a warning letter issued on 3 February 2009 in respect of an overloading conviction obtained on 5 January 2009. In the previous 5 years 1 conviction and 2 prohibition notices had been recorded. The Appellant company had been called to a public inquiry by letter dated 15 February 2010 notifying that the following would be in issue at the hearing: unsatisfactory maintenance, convictions, repute, financial standing, professional competence and failure to comply with statements of fact and undertakings. Full finance information had been requested in the calling in letter, which had been sent by both First Class post and Recorded Delivery. The public inquiry was called for 13 April 2010 at Leeds. The allegations were use of an unauthorised operating centre not specified on the licence, contravention of conditions, convictions, prohibitions, repute, financial standing and professional competence. Latest accounts, 3 months’ bank statements and details of any overdraft facility were to be sent to the Traffic Commissioner by 6 April 2010 showing availability of a minimum of £8,100 for the Appellant company’s authorisation of 1 vehicle.

(ii)              At the public inquiry Vehicle Examiner Michael Mann gave evidence for VOSA adopting his report, which referred to his maintenance inspection carried out on 11 September 2009 (a new operator visit) following an unannounced visit to the authorised operating centre on 9 September 2009, at which it was discovered that the Appellant company had left that address and had changed its operating centre to another. VE Mann therefore visited Mr Mayet’s home address which was also the Appellant company’s registered office. VE Mann had noted that he had been given full co-operation at his visit but that upon examination of systems and records it became apparent that there had been various changes. Since the licence had been applied for and apart from the change of operating centre, the Transport Manager had been changed as had the maintenance contractor, and none of these changes had been notified to the Traffic Area Office. VE Mann had then visited the new operating centre in a “spacious industrial area” which he described as “more than adequate”. However the outcome of the maintenance investigation had been “unsatisfactory”: maintenance records were not available and incomplete; PMI intervals were not respected and there were insufficient records to support them; defect records were not endorsed as repaired; there was no forward planner for safety inspections; there was no maintenance contract available with the new agent; the operating centre was not as specified; the vehicle condition was unsatisfactory; and the Transport Manager had been changed. The immediate prohibition issued was for a fractured rod in the load sensing valve linkage, which was an integral part of the braking system. Inspection records showed large gaps and the missing records were said to have arisen from a dispute with the former PMI agent. There was no formal drivers defect reporting system. There had been a roadside inspection which had attracted a prohibition for a defective speed limiter on 17 June 2009 and a 0% test pass rate, as at the annual test as the one vehicle had failed its test. VE Mann concluded that there were shortcomings in the maintenance systems leading to concern over the ability of the operator to maintain the single vehicle in roadworthy condition and that, as a result, the statements of intent with regard to undertakings at the time of operation for the licence were not being complied with.

(iii)            At the public inquiry Mr Mayet fully accepted the content of Mr Mann’s report. He explained his change of operating centre (which had been owing to irregularities in the conduct of the owner of his original operating centre), and also his change of PMI contractor (which had been because the original contractor was charging twice the cost of inspections as the new contractor). He stated that the missing inspection sheets had been retained by the original contractor who had been upset at his decision to go elsewhere. A new Transport Manager, Mr Ashraf Mutara, had also replaced the original nominated Transport Manager who had been charging £80 a week. Mr Mutara was “helping out” at no cost to Mr Mayet and, as he was fully employed elsewhere, he had not yet been shown VE Mann’s report. Mr Mayet explained his failure to notify all these changes by an incident in which he had been assaulted by “racist thugs” in 2008 which had resulted in an ongoing case at the Crown Court between 2008 and 2010 which had taken up all his time and attention. Further questioning revealed that the incident had arisen from a routine stop by police at which he had been asked for his driver details, and that this had culminated in his being charged with assault (of which he had been acquitted on appeal) and the 2 police officers involved sued by his solicitors for racial abuse, misconduct, unlawful arrest and assault and battery. At the same time his wife had been ill (with lupus) and they had had 2 babies. However he was unable to produce any supporting documentation and was reminded by the Traffic Commissioner that the calling in letter had notified that any such supporting documentation that might be required at the public inquiry should either be brought to the hearing or submitted in advance. The Traffic Commissioner was thus reluctant to accept the operator’s unsupported assertions as to the reasons for his not notifying the various changes, stating that it was “probably the worst case” he had seen of “a vehicle examiner discovering problems”, especially as the Appellant company (in the person of Mr Mayet) had conceded that the business had been started without much background knowledge on Mr Mayet’s part, yet nevertheless with a professional Transport Manager in place. Despite the Traffic Commissioner’s commenting that “lots of very basic things have been going wrong” the response from Mr Mayet had been that he didn’t “feel there was much wrong”, adding that he had also been distracted by the fact that his mother had had cancer, and that he had provided practical explanations for all the changes themselves.

(iv)            The Traffic Commissioner had nevertheless been unconvinced of the ability of Mr Mayet to run a compliant operation, owing to the apparent lack of involvement of the new Transport Manager in addressing VE Mann’s report or in preparing for the PI, Mr Mayet’s ambitious plans to expand his business with a fleet of 6 vehicles to service it, and above all of the complete absence of any attempt to regularise the position, such as by making an application to change the designated operating centre, and indeed by presenting up-to-date financial evidence as required by the calling in letter. At the conclusion of the public inquiry the Traffic Commissioner asked Mr Mayet to send in a short summary about his personal circumstances in relation to the incident with the police and such documentation was sent in (a letter from Mr Mayet summarising the circumstances and some correspondence from solicitors acting).

(v)             Ultimately the Traffic Commissioner issued a written and fully reasoned Decision in which he concluded that the Appellant company had not produced evidence of financial standing, either by 6 April 2010 as required by the calling in letter, or by the date of the public inquiry, which could demonstrate that (even with the assistance of an overdraft facility) the company had adequate working capital to maintain the vehicle authorised on the licence. Mr Mayet had also effected all the unreported changes, including using his home as an office, owing to lack of money. Moreover the personal letter submitted by Mr Mayet to summarise the incident of January 2008 with the 2 police officers had not impressed the Traffic Commissioner since in the end it was apparently clear that the incident had resulted in a conviction of Mr Mayet for assault and racially aggravated disorder. Furthermore, although it appeared that the conviction had been overturned on appeal, it should have been notified to the Traffic Commissioner, but was not. There had also been a conviction for overloading. The Traffic Commissioner concluded that the financial issues, use of an unauthorised operating centre and lack of an effective Transport Manager had been going on for some time, along with the other un-notified changes. In all the circumstances the Traffic Commissioner revoked the licence authorising the existing vehicle for lack of repute and professional competence as well as for lack of financial standing and on other grounds, and commented that despite Mr Mayet’s assurances of future compliance and expansion “this operator is not fit to be in the transport industry”.

3.           At the hearing of the appeal the Appellant company was not represented. In the circumstances the only material before the Tribunal is Mr Mayet’s 2-page letter constituting his Notice of Appeal, attached photographs of Mr Mayet’s injuries following the incident of January 2008 and his business plan for expansion to an operation of 6 vehicles, including his projected profit and loss accounts. We do not consider the projected expansion to be relevant as there is and has not been any variation application involved in this case to date. The issues all concern past operation of a single vehicle and repeated opportunities to address deficiencies in that grossly unsatisfactory performance, with opportunities to make up for past deficiencies being lost or ignored. We have difficulty in seeing where the Traffic Commissioner was “plainly wrong” in his conclusion that “the operator has acted with complete disregard for the normal standard of an operator’s licence” and “this operator is not fit to be in the transport industry”, particularly after a public inquiry at which he could assess Mr Mayet in person, and after ample opportunities for the operator to put his house in order. The Traffic Commissioner said that “the shortcomings are fundamental and the operator would have continued to operate with many undisclosed changes, had the shortcomings not been revealed at the fleet inspection”.

4.           We cannot put this conclusion in any significantly different way ourselves. The operator has not appeared before us to give any indication of a better grasp of what is required or any explanation of why steps were not taken to regularise the position between the calling in letter (February 2010) and the PI (April 2010). We have no indications before us of Mr Mayet’s ability to realise his obligations as a haulier regulated by the Traffic Commissioner and every indication that that ability is not there. It is clear to us that Mr Mayet needs to turn over a new leaf and start again in a compliant and well informed frame of mind, which is not at present exhibited

5.           Accordingly we dismiss the appeal.

Frances Burton

Judge of the Upper Tribunal

31 August 2010