Neutral Citation Number: [2012] UKUT 405 (AAC) Appeal No: T/2012/42

 

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

(TRAFFIC COMMISSIONER APPEALS)

 

ON APPEAL FROM THE DECISION OF NICK DENTON, TRAFFIC COMMISSIONER

for the SOUTH EASTERN AND METROPOLITAN TRAFFIC AREA,

DATED 5 JULY 2012

 

 

Before:

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

David Yeomans, Member of the Upper Tribunal.

Stuart James, Member of the Upper Tribunal.

 

 

Appellant:

CITY CARRIAGES (LONDON) LTD

 

 

 

Attendance:

For the Appellant: Mrs R Hall (Director)

 

Appeal heard at: Victory House, Kingsway, London

Date of hearing: 17 October 2012

Date of decision: 7 November 2012

 

 

DECISION OF THE UPPER TRIBUNAL:

 

IT IS HEREBY ORDERED that the appeal be dismissed. The revocation shall come into effect at 2359 hrs on 7 December 2012

 

 

Subject matter:

Tachograph / Drivers Hours; Prohibitions; Failure to demonstrate adequate financial resources; Paragraph 17(3) of Schedule 4 to the Transport Act 1985, as amended.

 

 

Cases referred to:

None.

 

 

 

 

 

REASONS FOR DECISION:

 

1)     This was an appeal from the decision of the Traffic Commissioner for the South Eastern and Metropolitan Traffic Area made on 5 July 2012 when he revoked the operator’s restricted operator’s licence under section 26(1)(c)(iii); (f); and (h) of the Goods Vehicles (Licensing of Operators) Act 1995.

 

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 operator’s licence authorising one vehicle. This licence was granted in October 2010. Records at Companies House reveal that the notified director, Mr McEwan, resigned as a director on 25 August 2011 and was replaced by Mrs Hall. The Traffic Commissioner was not notified of this change at the time.

(ii)    In October 2011, a letter was sent from VOSA to the operator referring to a new operator seminar that no-one from the company had attended, despite a previous arrangement that they would do so. A new course was offered, but no-one attended. Accordingly, on 6 December 2011, a Traffic Examiner visited the company’s operating centre. The Traffic Examiner found that it was not possible, at that time, to speak to Mr McEwan, but they eventually spoke on the telephone on 7 December 2011. An appointment was made for the Traffic Examiner to meet Mr McEwan but, in the event, Mr McEwan was unable to keep the appointment due to a hospital appointment. Mr McEwan said he would contact the Traffic Examiner to make an alternative appointment. The Traffic Examiner did not hear from Mr McEwan and so, on 22 December 2011, the Traffic Examiner telephoned Mr McEwan and made a new appointment for 11 January 2012.

(iii)  At this meeting Mr McEwan explained that he had been unable to attend the seminar because of ill health. The Traffic Examiner referred to the change of director as recorded at Companies House, butt Mr McEwan did not seem to know about this and claimed he was still the director.

(iv)  The Traffic Examiner asked Mr McEwan to produce all vehicle documents and tachograph charts. Mr McEwan was unable to do this at that time. Arrangements were made for the charts to be delivered for inspection, and a total of 15 charts were delivered for the period 13 December 2011 12 January 2012. Analysis of these charts revealed a defective tachograph instrument and missing mileage and missing charts.

(v)   The Traffic Examiner telephoned Mr McEwan on 28 January 2012 and left a voicemail message telling him what he had found and asking for further charts, but he heard nothing further from him. The company was issued with a prohibition for failing to produce the required tachograph charts.

(vi)  A check of VOSA records also showed a delayed prohibition issued on 27 October 2011 for excessive movement in steering joint. The vehicle was presented for clearance on 17 November 2011 but the prohibition was not lifted, and was only removed on 21 November 2011. Records also indicated one MOT presentation since the issue of the licence, resulting in a failure for defects including speedometer/tachograph.

(vii) A public inquiry took place on 5 July 2012 and the Traffic Commissioner heard evidence from the Traffic Examiner and from Mr McEwan. At the conclusion of the evidence the Traffic Commissioner retired to consider his decision and then gave an ex tempore judgement. The Traffic Commissioner indicated that he had been unable to find many positive features to place in the balance. There was a stated willingness on the part of both Mr McEwan and Mrs Hall to attend a new operator seminar, although the weight this attracted was small, given that neither Mr McEwan nor Mrs Hall had made any effort to attend a seminar prior to the public inquiry. On the negative side, however, the Traffic Commissioner concluded there were a number of features that he could not overlook:

• Mrs Hall, the director of the company, had no real knowledge of the transport industry or the responsibilities of the road transport operator.
• There were a significant number of missing tachograph discs representing around 45% of the mileage over a period of time and neither the director nor Mr McEwan had a basic knowledge of driver’s hours rules. They did not realise that the tachograph was still malfunctioning after it had been supposedly repaired.
• No action had been taken in advance of the public inquiry to improve matters or to put a system in place to check tachographs and driver’s hours.
• In relation to maintenance arrangements, there seemed to be some discrepancy between the six-week period declared on the application form as being the period between safety inspections, and the actual period.
• Prohibitions had been issued, including a maintenance-related prohibition that was not cleared on first presentation for clearance, and the one time the operator’s vehicle had been presented for MOT, it failed.
• No documents to demonstrate adequate financial resources had been produced, despite a clear request in the call-up letter, and the arrangements that the Traffic Commissioner learned of (including the Company Secretary dipping in and out of the company’s money for personal purposes, seemed odd). The end result was that there were insufficient financial resources to support the one vehicle on the licence.

(viii)         For all these reasons, the Traffic Commissioner concluded that it was necessary to revoke the licence on the grounds set out above, but he allowed four weeks from the date of the public inquiry to allow Mrs Hall and Mr McEwan to make appropriate arrangements. The Traffic Commissioner said that he was taking this action because he had no confidence in Mrs Hall or Mr McEwan - although he added:

“You may in the future change my mind if you apply for another licence, but at the moment I have no real confidence that you understand the responsibilities involved in operating a vehicle”.

(ix)  The Traffic Commissioner considered disqualification but drew back from making any disqualification orders because he did not think that Mrs Hall had any malign intent. However, the Traffic Commissioner added that were Mrs Hall to make an application to hold a licence in the future, he would need to be convinced that her level of knowledge was better than it presently was, and she would have to demonstrate that she was a fit and proper person to be a director of a company holding an operator’s licence.

 

3)     At the hearing of this appeal, the Appellants were represented by Mrs Hall.

 

4)     The notice of appeal raised a number of points. Mrs Hall had taken over temporarily because Mr McEwan had been diagnosed with cancer and had to have long-term treatment. Mrs Hall was not prepared for the responsibilities involved in this role and had not prepared, properly, for the public inquiry.

 

5)     The service records and financial records had not been brought to the public inquiry because Mrs Hall was not aware that they were required. Similarly, with regard to the financial resources available to the operator, the Company Secretary had taken cash from the company account but this was for work related expenses, not personal expenses, and the cash was invariably replaced with a cheque for the same amount. This procedure had now ceased. The grounds of appeal added:

 

“We now appreciate that we should not have got into this predicament but we should now be in a position to carry out all that is required of us”.

 

6)     Mrs Hall attended at the hearing before the tribunal and sought permission to present in evidence bank statements relating to a period after the public inquiry had taken place. The tribunal explained that it was unable to admit evidence relating to facts arising after the public inquiry (see paragraph 17(3) of Schedule 4 to the Transport Act 1985, as amended).

 

7)     The tribunal also explained to Mrs Hall that, as a general rule, it would not interfere with the Traffic Commissioner’s decision unless the Traffic Commissioner had made an error of law or procedure such that the decision could be characterised as plainly wrong. Mrs Hall accepted that the Traffic Commissioner had been justified to make the decision that he had made, on the evidence before him at the time, and she could point to no error or defect in the procedure followed, or the way in which the Traffic Commissioner had approached the evidence and made and explained his decision.

 

8)     Having carefully considered the papers, the tribunal agreed with this view, and indicated to Mrs Hall that, in the circumstances, the appeal fell to be dismissed. There was ample evidence to support the Traffic Commissioner’s conclusions, and the requirement to produce maintenance and financial documentation had been clearly spelled out in the call-up letter.

 

9)     Mrs Hall stressed that, in her view, she and Mr McEwan were now much better placed to satisfy the Traffic Commissioner that they deserved to have an operator’s licence. The tribunal therefore advised Mrs Hall that an appropriate application should be made immediately, which could then be considered by the Traffic Commissioner at an early stage.

 

10)  The tribunal is satisfied that the decision of the Traffic Commissioner was justified. There had been a breach of undertakings in relation to driver’s hours and tachographs, prohibition notices had been issued and there had been material changes in circumstances that had not been notified to the Traffic Commissioner. In addition the operator had failed to demonstrate that it had improved its maintenance arrangements or that it had access to adequate financial resources.

 

11)  The appeal is dismissed. The tribunal orders that the revocation shall come into effect at 23:59 hours on 7 December 2012

 

 

Judge Mark Hinchliffe, DCP

7 November 2012