Neutral Citation Number: [2011] UKUT 206 (AAC)

Appeal No.  T/2011/1

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of Lester Madrell

Deputy Traffic Commissioner for the West Midland Traffic Area

Dated 24 November 2011

Before:

Frances Burton, Judge of the Upper Tribunal

Leslie Milliken, Member of the Upper Tribunal

David Yeomans, Member of the Upper Tribunal

Appellant:

BILSTON SKIP HIRE SERVICES LIMITED

Attendances:

For the Appellant: Mr M J Marsh of AITEC Consultancy

Heard at: Victory House, London WC2B 6EX

Date of hearing: 20 April 2011

Date of decision: 20 May 2011

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be ALLOWED in part in that the order for disqualification of Bikram Singh is cancelled and shall not take effect. All other orders of the Deputy Traffic Commissioner shall come into effect at 23.59 hours on 26 June 2011.

REASONS FOR DECISION

1.           This was an appeal from the Decision of the Deputy Traffic Commissioner for the West Midland Traffic Area dated 24 November 2010 when he revoked the Appellant company operator’s restricted licence under s.26(1)(c)(iii), s.26(1)(f) and s.26(1)(h) of the Goods Vehicle (Licensing of Operators) Act 1995, and disqualified the Appellant company from holding or obtaining an operator’s licence in any Traffic Area for 6 months. He further disqualified Bikram Singh and Harmandeep Singh Gill with effect from 1 January 2011 respectively for 3 and 6 months and directed that if Harmandeep Singh Gill was at any time a Director, or holding a controlling interest in a company holding a licence of the kind to which the disqualification applied that licence should be liable to revocation, suspension or curtailment under s.26 of the Act.

2.           The factual background is apparent from the documents, the transcript of the public inquiry and the written decision of the Deputy Traffic Commissioner, and is as follows.

(i)               The Appellant company’s licence was granted on 22 January 2007 following a public inquiry (also conducted by the Deputy Traffic Commissioner) and a background of illegal operation and environmental issues. Conditions were imposed on the licence about hours of operation and entrance to and exit from the operating centre. The operator company was called to a public inquiry (again before the Deputy Traffic Commissioner) on 2 May 2008, following failure to observe environmental conditions, poor drivers’ hours observance, tachograph issues and prohibitions (including 2 “S” marked). Numerous conditions and undertakings were applied to the licence, including the provision to the Traffic Commissioner of full details of future shareholders following assumption of sole Directorship of the company by Mr Harmandeep Singh Gill on sale of the company to him. The licence was then briefly suspended between 22 and 26 May 2008 together with a direction under s.26(6) of the Act that any vehicle specified on the licence might not be used under any other operator’s licence during the period of suspension.

(ii)              In 2010 the Appellant company, which had by then been purchased by Mr Gill, was again called to public inquiry, this time for maintenance shortcomings and prohibitions and non-compliance with some of the 2008 undertakings. Once again the public inquiry was before the Deputy Traffic Commissioner. The public inquiry took place at Birmingham on 27 October 2010. The Appellant company was represented by a solicitor, Mr H. Bal, and evidence was given for VOSA by a Vehicle Examiner, Mr A. Jones, who confirmed his report dated 6 May 2010, the content of which was accepted by Mr Bal on behalf of the Appellant company. VE Jones had added that there had been 2 further encounters at the roadside after that date, one clear and one resulting in a delayed prohibition for an oil leak. Mr Bal had no questions for Mr Jones.

(iii)            Mr Gill had then been called and had given evidence and had indicated (although the Deputy Traffic Commissioner had queried this as apart from Mr Gill Companies House recorded a company Secretary only) that the Appellant company had acquired a second Director as well as himself “last year, I think”. Mr Gill had at first said he did not know about any of the undertakings and conditions imposed at the 2008 public inquiry. When reminded by the Deputy Traffic Commissioner that he had himself been present at that hearing on 2 May 2008, Mr Gill conceded that he had seen the detailed letter which had been sent to the Appellant company following that public inquiry. The letter had set out all the conditions and undertakings which had been imposed precisely to cure all the deficiencies which had been revealed at that public inquiry. Mr Gill further indicated that the Appellant company’s bookkeeper, Miss Sarah Westwood, had suddenly left the business without notice and without undertaking any handover, so that he had been left for at least 2 months attempting to find everything he needed to run the company which had been difficult and onerous. Amongst other problems had been absence of the computer passwords owing to the lack of formal handover but there was now a new bookkeeper, a Mr Gulshan Verma, who was undertaking Miss Westwood’s work.

(iv)            VE Jones’ undisputed report had nevertheless been extremely adverse to the Appellant company. Following his unannounced visit to the operating centre on 24 March 2010 VE Jones had reported that he had found no evidence that roller brake testing had been conducted and he had issued prohibitions (2 immediate – 1 “S” marked – and 1 delayed). He had also found deficiencies in the PMI records (with inspection intervals exceeded), incomplete Driver Defect Reports not properly signed off, a poor annual test rate (64% first time pass as compared to 84% national average) and no prior checks before submission for tests. Further, the Deputy Traffic Commissioner had not been told of changes in Directors (a Mr Jatwinder Singh had originally been a Director but had left for health reasons) nor had he been told of the departure of Miss Westwood in December 2009, which had been made a specific obligation as one of the undertakings given at the 2008 public inquiry. There were no records produced to show that the Appellant company’s mechanic had inspected each vehicle each week as claimed by the Appellant, environmental conditions had not been complied with and even following VE Jones’ visit and advice as to how records were to be kept, records produced at the public inquiry of 27 October 2010 and reviewed by Mr Jones who had indicated that  the Appellant company was “moving in the right direction” but that “there was still room for improvement”.

(v)             The Deputy Traffic Commissioner had then found that there had been prohibitions for serious defects which had endangered the public as one of those issued by VE Jones had been in respect of half the wheel nuts of 1 wheel being loose (so that the DTC had commented this “may well have prevented a fatality”). He found persistent and prolonged (May 2008 to March 2010) breaches of general maintenance undertakings and of specific undertakings given in 2008”, specifically directed to curing the problems shown by the 2008 Public Inquiry”. He said that the only undertaking complied with had been in respect of tachograph and drivers’ hours. Having considered the questions posed in Bryan Haulage, 2005/217 and Priority Freight 2009/225 respectively (“is the operator’s conduct so bad that the Appellant company should be put out of business?” and “would the operator be likely to be compliant if allowed to continue?”) the Deputy Traffic Commissioner then revoked the licence and ordered the disqualification as set out in paragraph 1 above, including disqualifying Mr Bikram Singh.

3.           Prior to the hearing of the appeal Mr M.J. Marsh of AITAC Consultancy submitted detailed grounds of appeal and a skeleton argument in support. However, at the hearing of the appeal Mr Marsh told us that the Appellant company had decided to withdraw its appeal save for the appeal against disqualification of Mr Bikram Singh as Mr Gill had decided to leave the industry. Mr Gill and Mr Singh had both accompanied Mr Marsh to the hearing. Mr Marsh therefore indicated that he withdrew the first 2 grounds of appeal (the Deputy Traffic Commissioner’s omission to give due credit to the Appellant company’s actions to remedy the deficiencies found by VE Jones and a significant period of 7 months compliant operation up to the PI of October 2010, and the further omission to take into account Mr Gill’s previous lack of understanding of the undertakings given at the 2008 PI when concluding that he had “had” and attempted to mislead the DTC at the 2010 PI).

4.           Mr Marsh submitted that the sole ground to be pursued was the appeal against disqualification of Mr Bikram Singh, who had in reality only been Company Secretary and not a Director, as shown on the Companies House records and observed by the Deputy Traffic Commissioner, who had, however, then nevertheless disqualified him as if he had been a Director, although Mr Singh had never had any direct responsibility for the operation of the vehicles. He added the Deputy Traffic Commissioner was clearly aware, both from the Companies House records before him, and the company’s accounts, that Mr Singh was not a Director, despite Mr Gil’s apparent impression that he was. Mr Marsh submitted that although he had not heard from Mr Singh (who was not present at the PI) the DTC had nevertheless found that he was “a director in fact if not on paper at Companies House”, despite being told by Mr Bal, the solicitor acting for the Appellant, that Mr Singh’s role was only in obtaining business and not in any administrative matters, and had disqualified him as though he were a Director. Mr Marsh submitted that this must be wrong as s.28 of the Act only permits disqualification of the licence holder (i.e. in this case the company) or any Directors, where the licence holder is a company.

5.           We agreed with this submission and that this part of the appeal must be allowed.

6.           With regard to the remainder, as the main issues, the appeal of the Appellant company against revocation and Mr Gill against disqualification, are withdrawn, the Orders of the Deputy Traffic Commissioner will come into effect at 23.59 hours on 26 June 2011, so as to permit the same period of time as allowed by the Deputy Traffic Commissioner for the orderly closure of the business, which the Appellant company’s officers present and Mr Marsh on their behalf indicated would be sufficient for this purpose.

Frances Burton

Judge of the Upper Tribunal

20 May 2011