Neutral Citation Number: [2010] UKUT 467 (AAC).

Appeal No: T/2010/58

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 22 JULY 2010

Before:

Judge Mark Hinchliffe,

Deputy Chamber President (HESC); Judge of the Upper Tribunal.

Leslie Milliken

Member of the Upper Tribunal

David Yeomans

Member of the Upper Tribunal

Appellant:

Asif Mohammed Din t/a Ribble Valley Private Hire

Attendance:

For the Appellant: No attendance

Appeal heard at: Victory House on 29 October 2010

Date of decision: 23 November 2010

DECISION OF THE UPPER TRIBUNAL:

The appeal is dismissed

Subject Matter:

Public Passenger Vehicles. Repute. Relevance of previous conduct, in whatever capacity, in relation to the commercial operation of vehicles of any description.

Financial Standing. Bank statements must not just provide a monthly summary, but must show the day-to-day balances.

Cases referred to:

None.

REASONS FOR DECISION:

1)    This was an appeal from the decision of the Traffic Commissioner for the North Western Traffic Area made on 22 July 2010 when she revoked the Appellant’s operator’s licence, with effect from 20 August 2010, under S.17(1),(2) and (3)(a),(aa), (c) & (d) of the Public Passenger Vehicles Act 1981.

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 PSV operator’s licence authorising two vehicles, granted on 18 April 2008.

(ii)   An unsatisfactory maintenance investigation took place in May 2009, resulting in a warning letter. Following an ‘S’ marked prohibition, an unannounced maintenance investigation took place in December 2009. A catalogue of concerns arose, including driver defect reporting, and safety inspections and rectification.

(iii)   A call-up letter was sent and the public inquiry took place before the Traffic Commissioner on 25 May 2010 and 30 June 2010. The operator attended, together with Mr Ratcliffe, a proposed new Transport Manager.

(iv)  Having discovered that Mr Mohammed had come into conflict with Lancashire County Council over compliance, that Mr Mohammed had brought no financial evidence with him to the public inquiry, and that Mr Ratcliffe had not yet agreed any terms and conditions with Mr Mohammed, the Traffic Commissioner adjourned the case, and gave directions – particularly in relation to evidence from the County Council. The Traffic Commissioner also asked the Vehicle Examiner, Mr Kelsall, to examine the operator’s latest maintenance records and to prepare a report for the resumed hearing.

(v)   The subsequent evidence in relation to maintenance indicated that the operator had addressed some of the issues raised at the second unsatisfactory maintenance investigation. However, the evidence from the County Council included evidence relating to breaches of undertakings and unauthorised sub-contracting, knowingly using non-CRB cleared drivers (and subsequently seeking to “cover-up” the facts), making apparently fraudulent claims, and late running.

(vi)  At the resumed hearing, the Operator again (initially) failed to produce any financial documents, telling the Traffic Commissioner that he was still “trying to get everything together”. However, later that day, after the public inquiry had concluded (but before the Traffic Commissioner had reached a decision) some financial information was sent to the Traffic Commissioner’s Office.

(vii)          In her written decision, the Traffic Commissioner noted the improvement seen in maintenance arrangements, and indicated that this was a positive feature, although it was “equally clear that the operator has still not addressed all of the maintenance issues”. The matters raised by the County Council, on the other hand, were viewed with significant concern. Previous assurances and undertakings given to the County Council had not been observed and, ultimately, the County Council had terminated all Mr Mohammed’s contracts and had subsequently dismissed Mr Mohammed’s appeals. The Traffic Commissioner accepted the factual evidence from the County Council although she, rightly, criticised the Council for not reporting these matters to her sooner. She concluded that Mr Mohammed’s conduct, especially his attempted deceptions of the Council and deployment of non-CRB cleared drivers were sufficiently serious that she could not trust the operator to comply in future. She found that Mr Mohammed was not fit to hold a licence.

(viii)         So far as the financial evidence was concerned, the faxed documents were only summaries and individual bank statements had not been provided so it was not possible to see the full picture, over a reasonable period of time.

(ix) The Traffic Commissioner considered all options, but concluded that the operator did not satisfy the repute and financial standing requirements, and that there was virtually no prospect of him satisfying them in the foreseeable future.

3)    The Appellant did not attend the hearing before the tribunal. We nevertheless decided that we would proceed to consider the matter on the basis of the evidence before us.

4)    The Grounds of Appeal are somewhat slim:

“My financial repute is of good standing. My service and maintenance records are all in good order”.

5)    The tribunal concluded that this appeal must fail. The Traffic Commissioner was entitled to reach the conclusions that she reached for the detailed reasons she gave. Indeed, had she reached any other conclusions, surprise might well have been expressed in many quarters.

6)    Paragraph 1(1)(b) of Schedule 3 of the Act provides that, when considering repute, the Traffic Commissioner shall have regard to all the relevant evidence and, in particular, to such information as the Commissioner may have as to an operator’s previous conduct in whatever capacity in relation to the operation of vehicles of any description in the course of a business. The operator’s conduct in relation to his County Council obligations was deplorable, and it is not possible or realistic to tease out and ignore those aspects that solely related to the taxi side of the operator’s business when – in truth – the taxi side and the public passenger vehicle side, were operated together. As the Traffic Commissioner said, the concerns all arose in relation to the operator’s conduct in the commercial operation of passenger carrying vehicles, and are clearly relevant to the question of repute.

7)    We are also satisfied that the Traffic Commissioner’s conclusions as to the financial information provided are correct. In particular, the bank statements provided do not show the everyday trading “ins and outs”, or a running balance. Bank statements must not just provide a monthly summary, but must show the day-to-day balances. All that these monthly summaries show is that the Business Bank Account is maintained at very modest levels, with substantial charges made for unarranged and / or instant overdraft facilities.

8)    The Grounds of Appeal provide little assistance and completely fail to address the major areas of concern. The appeal is therefore dismissed.

Judge Mark Hinchliffe, DCP

23 November 2010