Neutral Citation Number: [2010] UKUT 358 (AAC)

Appeal No: T/2010/43

 

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 24^TH MAY 2010

 

Before:

Judge Mark Hinchliffe,

Deputy Chamber President; Health, Education & Social Care Chamber

 

Patricia Steel

Member of the Upper Tribunal

 

John Robinson

Member of the Upper Tribunal

 

Appellant:

 

Stephen Mcvinnie t/a Knight Rider

 

Attendance:

 

For the Appellant: Mr Mcvinnie in person. He was not represented

 

Appeal heard at: Victory House on 23^rd September 2010

 

Date of decision: 28^th September 2010

 

DECISION OF THE UPPER TRIBUNAL:

 

The appeal is dismissed

 

Subject Matter:

 

Non-attendance at Public Inquiry.

Submission of evidence after the Traffic Commissioner’s decision has been made.

The ‘plainly wrong’ test.

 

Cases referred to:

 

Thames Materials [2002/40]

 

REASONS FOR THE DECISION

 

1)    This was an appeal from the decision of the Traffic Commissioner for the North Western Traffic Area made on 24 May 2010 when she revoked the Appellant’s Restricted Public Service Vehicle Operator’s Licence under Section 17(3)(a) of the Public Passenger Vehicles Act 1981 (as amended) – unfulfilled statements of expectation/fact; 17(3)(aa) – unfulfilled undertakings; 17(3)(d) – failure to satisfy the requirement to be of appropriate financial standing and 17(3)(e) – material change in circumstances.

 

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

(i)    The Appellant is the holder of a Restricted Public Service Vehicle Operator’s Licence granted on 20 April 2009, and with authorisation for 1 vehicle, with 1 vehicle in possession. The application had been dealt with at Public Inquiry because Mr Mcvinnie already had a ‘day job’, which he did not propose to give up. When the Traffic Commissioner eventually granted the application she advised Mr Mcvinnie that VOSA would be asked to carry out a maintenance check in approximately 6 months.

(ii)   The maintenance check took place on 5 October 2009, by appointment. The outcome was unsatisfactory because the time gaps between safety inspections had been stretched beyond the stated 10 weeks, the PMI forms were not properly completed, and reported defects were not always shown as rectified. There was also no up-to-date maintenance contract available. VOSA subsequently wrote to Mr Mcvinnie on 10 October 2009 and he replied on 20 October 2009 stating that arrangements had been made to put matters right. No explanation for the problems identified was put forward. The Traffic Commissioner was notified and she decided to hold a Public Inquiry. A call-up letter dated 25 March 2010 was sent to Mr Mcvinnie’s correct postal address by First Class post, with the P.I. scheduled for 10 May 2010 at 2.00pm.

(iii)  The call-up letter asked the operator to return Annex F, confirming attendance. It also asked the operator to bring all documentary evidence relating to the vehicle maintenance system to the hearing and to provide, a week prior to the date fixed for the P.I., his latest audited accounts; bank statements for the last 3 months, and details of any overdraft facility available. The required figure for readily available capital and reserves needed to establish financial standing was £3,100.

(iv) On the morning of 10 May 2010, there having been no acknowledgement from the operator, a member of the Traffic Commissioner’s staff telephoned the operator who (according to the subsequent transcript) stated that he would not be attending as his father had recently died and his mother had a low blood sugar count that required his assistance. Although no adjournment had been requested the Traffic Commissioner adjourned the P.I. until 2.00pm on 24 May 2010. A letter advising Mr Mcvinnie was sent to his correct address by First Class Post on 10 May 2010, advising him of the adjournment and the new hearing date. The Traffic Commissioner further directed that “there will be no further adjournments after that date”.

(v)   On 14 May 2010 the Traffic Commissioner’s office received a letter from the operator. He said that, since the maintenance inspection, everything was in place. He admitted that a safety inspection had been missed because of his mother’s poor health and said that he had never used his vehicle after the scheduled date, until it had had a safety inspection. A further inspection was missed, after Mr Mcvinnie’s father had passed away, because Mr Mcvinnie was off work with depression. Mr Mcvinnie added: “I will be posting my maintenance folder and other details which I would have brought with me if I was at the hearing”.

(vi) Mr Mcvinnie did not attend at the resumed hearing. He did not send any maintenance records for the Traffic Commissioner to consider at the hearing and no financial evidence was provided. The Traffic Commissioner remarked: “… if Mr Mcvinnie had attended, I would have been able to make a judgement as to whether or not he was now complying. But as Mr Mcvinnie has not attended, I am not in a position to do so. Furthermore, I have not received the maintenance records from Mr Mcvinnie”. Later on the Traffic Commissioner noted that: “there have been no financial documents provided to me”.

(vii)   The decision letter dated 24 May 2010 was sent to Mr Mcvinnie by Recorded Delivery and First Class Post. It advised Mr Mcvinnie of the revocation but, wrongly, referred only to financial standing as the reason.

(viii)  On 26 May 2010 the operator emailed the Traffic Commissioner’s office saying that he had not yet sent his financial statements as he was waiting for a cheque, following an insurance claim, to clear. He promised to have an up-to-date bank statement faxed through, along with credit card statements. Reference was also made to some imminent bookings. On 28 May 2010 a formal stay request was made and some financial documents were submitted. A further bundle, comprising financial and maintenance documentation was received by the Traffic Commissioner’s office on 2 June 2010. On 3 June 2010 the Traffic Commissioner took the opportunity to correct the decision letter and include all the relevant sections under which she had revoked the licence. She considered the application for a stay, which she refused. The request for a stay was renewed to the Upper Tribunal, and it was also refused.

(ix)     The Appellant’s Notice of Appeal was received at Victory House on 11 June 2010. It then transpired that the Traffic Commissioner had not seen the bundle received on 2 June 2010. Therefore, on 18 June 2010, the Traffic Commissioner reconsidered the matter stating:

“I have therefore looked at this bundle in detail to ascertain if it would have made any difference to my decision to refuse the stay as at the 3^rd June. The bundle comprises various financial documents, a number of maintenance contracts and some safety inspection records for 2009 and 2010. These documents had not been produced at the original inquiry. I have concluded that, whilst it is clear that some remedial work has been carried out on the vehicle, the maintenance arrangements are still wholly unsatisfactory and that the operator is relying upon credit cards to establish financial resources. I have not been able to conclude that the operator has sufficient financial resources”

The Traffic Commissioner, therefore, concluded that, had she seen the bundle on 3 June 2010, her decisions would have been the same.

(x)      On 13 September 2010 the Appellant submitted amended Grounds of Appeal to the Upper Tribunal, together with some extra documents, totalling 75 pages.

 

3)    At the hearing of this appeal, the Appellant attended without representation, but he had, clearly, taken professional advice and we had before us the amended Notice of Appeal and Submission, for which we express our gratitude.

 

4)    The tribunal first considered the additional bundle. Appeals from Traffic Commissioners do not involve a complete re-hearing of all the evidence. Instead, such appeals involve a review of the material put before the Traffic Commissioner at the Public Inquiry, and a consideration of the conclusions reached by the Traffic Commissioner on the basis of that material. The test applied by the Upper Tribunal is to consider whether the decision of the Traffic Commissioner is ‘plainly wrong’ – in the sense that it is not clear and intelligible, or does not address all material and substantial issues, or it did not follow a manifestly fair hearing, or no reasonable Traffic Commissioner, properly considering and balancing the evidence made available, and correctly applying the law, could possibly have reached the same conclusion on the basis of the reasons given.

 

5)    There is, moreover, a statutory prohibition against taking into account, when hearing an appeal from a Traffic Commissioner, “any circumstances which did not exist at the time of the determination which is the subject of the appeal” – see paragraph 9(2) of Schedule 4 to the Transport Act 1985. In the decision of the Transport Tribunal in Thames Materials [2002/40] the tribunal confirmed the position, consistently applied over many years, that fresh evidence should only be admitted if it passes the test laid down by the Court of Appeal in the 1954 case of Ladd v Marshall. In particular, an Appellant has to show that, with reasonable diligence, the evidence could not have been obtained in time, for use at the public inquiry.

 

6)    A cursory examination of the extra documents submitted indicated that, in fact, it related to circumstances existing before the date of the Traffic Commissioner’s decision to revoke the Operator’s Licence. Additionally, we noted that nearly all the material had been included in the bundle received by the Traffic Commissioner’s office on 2 June 2010, and considered by the Traffic Commissioner on 18 June 2010. Most of it was not new, and was in our original papers. The Traffic Commissioner appears, in her stay decision of 18 June 2010, to have re-visited the substance of much of her decision taken on 24 May 2010. In all the circumstances, in order to be scrupulously fair to the Appellant, and because the material does not fall foul of the statutory prohibition and was, eventually, accepted and considered by the Traffic Commissioner, we agreed to allow the bundle to be submitted and admitted in evidence before us.

 

7)    The first point made in the submission is that the notice of the adjourned hearing, dated 10 May 2010, which also included the direction to the effect that no further adjournments would be allowed, should have been posted by Recorded Delivery as well as First Class post. It is pointed out that the Decision Letter, advising of the revocation decision, was sent by Recorded Delivery. It is claimed that the Appellant did not receive this letter and, therefore, he did not attend on 24 May 2010 because he did not know about the hearing. The Traffic Commissioner’s decision to proceed, it was submitted, was unfair.

 

8)    We reject this submission. Call-up letters need not be routinely sent by Recorded Delivery, and this is entirely consistent with practice in other tribunals and the courts. There is no doubt that the first call-up letter was received, and the letter advising of the adjourned date was correctly addressed and posted first class. A Decision Letter, especially following immediate revocation when an operator was not present at the public inquiry, will often be sent by Recorded Delivery - because continued operation after knowledge of revocation amounts to a criminal offence. Additionally, in the present case, we noted that Mr Mcvinnie did not return Annex F upon receipt of the initial call-up letter and so, on 10/5/2010, a member of the Traffic Commissioner’s staff telephoned the operator and discovered that he would not be attending due to his mother’s poor health. It is not clear whether the operator was told that the Traffic Commissioner would adjourn the case or proceed but, either way, Mr Mcvinnie knew that the matter was before the Traffic Commissioner that day. If he did not receive the adjournment letter, we think it astonishing that he did not contact the office of the Traffic Commissioner urgently, to find out what had happened.

 

9)    The operator’s letter of 10/5/2010, received 14/5/2010, is ambiguous - but we deduce from it that the operator expected or hoped that his maintenance folder would be considered at some point in the near future. He was very much alive to the fact that his operation was the subject of scrutiny. In fact, no maintenance file was sent, and no financial evidence was sent, either in time for the first hearing or for the adjourned hearing – which reinforces our view that the operator was disinclined to present the Traffic Commissioner with the evidence, oral or written, that she sought. In relation to financial evidence particularly, the call-up letter (that the operator admits he received) asked specifically for financial information to be sent in advance. It was not. In the event, we find that the correct procedure was followed, and there was little more that the Traffic Commissioner could have done. If it is true that the operator did not receive the adjournment notice, and we think this is both unlikely and improbable, he had plenty of time and opportunity to find out what had happened on 10/5/10, and we think that he should have done so (and, indeed, would have done so if he had any desire to attend at the resumed hearing, or submit relevant evidence).

 

10) The second (and third) point is that, at the resumed hearing, no attempt was made to contact the operator, and the Traffic Commissioner should have adjourned again. It is clear that the Traffic Commissioner had, by the time the resumed hearing commenced, read the operator’s letter of 10/5/2010 and noted the absence of the operator at the hearing, the absence of any financial material, and the absence of any helpful maintenance evidence. She concluded that the operator had no intention of attending. We do not think this conclusion on the facts can be impugned. The Traffic Commissioner had sent the adjournment letter to the correct address by First Class post some two weeks before. The operator knew he was in the spotlight and had written in, making promises to send evidence which were not fulfilled. The Traffic Commissioner had no reason to believe that the operator had not received the adjournment notice or, if he had not, that the operator would make no pro-active enquiries to discover the outcome of proceedings on 10/5/10, despite writing to the Traffic Commissioner’s office that day. We find that the Traffic Commissioner was plainly right to proceed in these circumstances, and no further steps were necessary.

 

11)    Next, it is contended that a new maintenance contract, and promises from the operator that everything was now in order, amounted to an indication of future compliance, which the Traffic Commissioner should have recognised. We disagree. From the papers before us we noted a gap between full and properly recorded safety inspections of some 18 weeks from 4/6/09 to 10/10/09. At pages 94-98, repeated at pages 184-187, there is an undated and unsigned MOT Inspection Check List, with no evidence of rectification of a brake defect, said to have taken place in August 2009. But an MOT Inspection is not a safety or preventative maintenance inspection, still less is a safety inspection evidenced by an unsigned, undated document, with around half the number of items one would expect on a PSV safety inspection sheet, and with no rectification of a safety critical defect identified. A brake test was undertaken on 11/8/09, which we have noted, but we consider that the concerns of the Vehicle Examiner, who looked at records on 5/10/09, have not been properly addressed at all. Indeed, there is another gap in the records from 28/11/09 until 9/3/10, a gap of 14 weeks, and there is no contemporaneous ‘Vehicle Off Road’ documentation to explain it. We also noted that virtually all safety inspection sheets failed to contain a signed declaration of roadworthiness. It follows that the Traffic Commissioner was entitled to conclude that the evidence of the Vehicle Examiner raised significant concerns and, even if she had further adjourned to consider further documentation (which eventually found its way into her office some 9 days after the Public Inquiry, and which she did eventually consider) the position would not have been significantly improved.

 

12)    In relation to financial standing, it is submitted that the Appellant was not given an opportunity to provide financial evidence. We reject this suggestion. The operator should have submitted his bank statements covering the previous three months no later than 1 week before the first public inquiry – a hearing of which he admits he was aware. The Traffic Commissioner had nothing before her when the matter was before her for disposal on 24/5/2010. Having, rightly, decided to proceed she had no choice other than to conclude that financial standing was not established. She reconsidered the matter when documents received in her office on 2/6/10 were placed before her. Only one bank statement was provided, for May 2010, and which did not show the dates or details of the months transactions – merely a start and end figure. There were personal credit card statements, but Traffic Commissioners are rightly sceptical of credit cards without some evidence of an operator’s ability to service the debt or possible debt, especially where (as here) the monthly payments made to pay off the credit card debts were, in one case, extremely modest and, in the other case, the absolute minimum. We therefore conclude that the Traffic Commissioner’s approach to financial standing was correct.

 

13)    The overall sense we have of this case is of an operator failing to adhere to the process and timescales as determined by the Traffic Commissioner and seeking, instead, to determine for himself the timeframe for the submission of evidence and the determination of matters. The public inquiry process cannot function in this way. In this day and age, and especially in the essentially inquisitorial framework of the public inquiry system, there is in our view a clear duty on operators to help the Traffic Commissioner deal with cases fairly and justly – and to avoid delay, so far as compatible with the proper consideration of the material issues. The modern trend is to expect parties to tribunal proceedings (and, by analogy, operators) to co-operate generally. This will be especially important, and in the interests of the compliant operator, if it emerges that their operation is under scrutiny by VOSA or the Traffic Commissioner. A wise operator will take whatever steps are required to ensure that he takes advantage of every opportunity to submit relevant and helpful evidence before, and not after, matters come to a head, and well before a Traffic Commissioner sits down to make his or her final decisions.

 

14)    The appeal is dismissed.

 

 

Judge Mark Hinchliffe, DCP

28/9/2010