Neutral Citation Number: [2012] UKUT 297 (AAC) Appeal No. T/2012/22

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL FROM THE DECISION OF MR N JONES

TRAFFIC COMMISSIONER for the WEST MIDLAND TRAFFIC AREA

Dated: 13 April 2012

 

 

Before:

 

Judge Alan Gamble, Judge of the Upper Tribunal

David Yeomans, Member of the Upper Tribunal

John Robinson, Member of the Upper Tribunal

 

 

SAVPREET SINGH  AULAKH (TRANSPORT  MANAGER)

 

 

Attendances: The appellant was neither present nor represented

 

Heard at: Victory House, 30-34 Kingsway, London, WC2B 6EX

Date of hearing: 19 July 2012

Date of decision: 16 August 2012

 

 

DECISION OF THE UPPER TRIBUNAL

 

The appeal is allowed.  To the extent that the period of three years specified for the rehabilitation of the appellant is reduced to two years from the date of revocation of the operator’s licence of Derek William Woolley.  The Traffic Commissioner’s decision in respect of the appellant is otherwise confirmed.

 

 

 

SUBJECT MATTER:-

 

Proportionality of disqualification period imposed on Transport Manager

 

 

 

 

 

 

Case referred to:  Utopia Traction Limited 2011/34

 

 

REASONS FOR DECISION

 

 

1. This is an appeal by Mr S S Aulakh who was the Transport Manager for an operator named Mr D W Woolley trading as Plan A Logistics against the decision of the Traffic Commissioner for the West Midland traffic area dated 16 April 2012.  So far as the appellant was concerned, the Traffic Commissioner held that he no longer satisfied the statutory requirements for a Transport Manager either of good repute or of professional competence.  Accordingly he disqualified him from holding any position as a Transport Manager.  However he specified that rehabilitation could be considered for the appellant after he had waited for a period of three years and had retaken and passed fresh examinations as a Transport Manager.  The Traffic Commissioner’s decision was taken after a public inquiry which he conducted on 3 April 2012.

 

2. The decision of the Traffic Commissioner so far as it relates to the operator was not under appeal to us in these proceedings.

 

3. The appellant did not attend the hearing nor was he represented.  He intimated no reason for his absence nor did he request an adjournment.  In these circumstances, we considered it appropriate to proceed to hear and determine the appeal in his absence.  We did so.

 

4. The facts and circumstances relating to this appeal as indicated by the material on file are as follows:

 

(a) The appellant is now aged twenty three.  He worked part-time as the Operator’s Transport Manager for two years commencing in that role at the age of twenty one.

 

(b) The appellant produced false documentation to VOSA with an intention to deceive (as did the operator).  That documentation related to the maintenance records of vehicles, the hire of vehicles and warnings given to drivers.  There were also missing tacograph records. 

 

 

(c) The appellant did not pick up from his readings of charts driving hours offences identified by the Traffic Examiner.  He was also unaware of the detailed legal requirements for the accurate recording of start and finish locations on tacograph record sheets. 

 

5. In his letter of appeal the appellant only requests us to shorten the period of rehabilitation imposed on him.  He does not dispute the remainder of the Traffic Commissioner’s decision as it relates to him. 

 

6. We agree with the Traffic Commissioner that the appellant, as he puts it in paragraph 53 of his decision, “Has not only supplied false information to VOSA, he has demonstrated a lamentable lack of understanding as to his responsibilities as a Traffic Manager”.  We further agree that as a result the appellant no longer possessed “either good repute or professional competence.”  As noted in paragraph 5 above that conclusion is not disputed by the appellant.

 

7. We have carefully considered the Traffic Commissioner’s reasoning in paragraph 55 of his decision where he explains it as it relates to the appellant. We agree with the contents of that paragraph subject to the qualification that, in our view, a disqualification period of two years rather than three years would be more proportionate.  To that extent only we allow the appeal.  We reach our conclusion re-emphasising the seriousness of the appellant’s conduct particularly regarding the falsification of documentation supplied to VOSA as set out in paragraph 4 (b) above. On the other hand we have taken into account the appellant’s relative youth and his inexperience as a Transport Manager.  Additionally we also note and have taken into account the following issues.  Firstly, the Traffic Commissioner did not find that the appellant was the controlling mind of the operation.  He reserved that role for the operator himself.  Accordingly it is appropriate, in our view, to make a greater distinction than that made by the Traffic  Commissioner in his decision between the period of disqualification imposed on the operator (five years) and that imposed on the appellant.  Secondly, at the outset of the Public Inquiry the Traffic Commissioner alluded to the possibility that he might find that there was a fronting operation ,as described in the case of Utopia Traction Limited 2011/34 . However, in this case he never found that the operation was being used as a front for someone who would be unlikely to be allowed an operators licence. Thirdly, although the Traffic Commissioner found that “questions remained unanswered as to who was operating the vehicles that Derek Woolley claimed to be operating” in paragraph 48 of his decision, he stopped short of determining who that was. Fourthly, we draw attention to the information contained on document 24 of the bundle headed “Compliance and Enforcement History”.  We consider that the record presented under that heading did not show that the appellant deliberately put life at risk by his actions. For these reasons, therefore, we reduce the period before which rehabilitation of the appellant can be considered to two years in place of three years.  Otherwise we confirm the Traffic Commissioner’s decision relating to the appellant.

 

 

 

A J GAMBLE

Judge of the Upper Tribunal

Date: 16 August 2012