Neutral Citation Number: [2013] UKUT 410 (AAC)

Appeal No.  T/2013/22

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of Nick Denton TRAFFIC COMMISSIONER for the London and South East of England

Dated 27 February 2013

 

 

 

Before:

His Hon. Michael Brodrick, Judge of the Upper Tribunal

Stuart James, Member of the Upper Tribunal

David Rawsthorn, Member of the Upper Tribunal

 

 

Appellant:

DAVID JAMES ROOTS t/a ORANGE COACH TRAVEL

 

 

 

 

Attendances:

For the Appellant: Mr Paul D G Carless of SPC Transport Consultancy

 

 

Heard at: Field House, 15-25 Bream’s Buildings, London, EC4A 1DZ

Date of hearing: 26 July 2013

Date of decision: 20 August 2013

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED.

 

 

 

SUBJECT MATTER:- Repute, Transport Manager, Disqualification

 

 

CASES REFERRED TO:- None

 

 

REASONS FOR DECISION

 

 

1.           This is an appeal from the decision of the Traffic Commissioner for London and the South East of England to revoke the standard national public service vehicle operator’s licence held by the Appellant, with effect from 1 April 2013, to determine that the Transport Manager, David James Roots had lost his repute and to disqualify him from acting as a Transport Manager, under any licence, for 12 months from 1 April 2013.

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

(i)                   The Appellant is the holder of a standard national public service vehicle operator’s licence authorising 11 vehicles, at an operating centre at Martlands Industrial Estate.  The licence was granted on 31 January 2001.  The nature of the Appellant’s business is school transport work and other journeys.

(ii)                 On 24 November 2006 a Public Inquiry was held following an unsatisfactory maintenance inspection.  The licence was suspended for 6 days from 24 December 2006 and an undertaking was accepted from the Appellant that each vehicle would have a rolling brake test approximately one month before annual test and 5 months after annual test.

(iii)                On 28 July 2011 a Vehicle Examiner carried out a maintenance inspection at premises at Send Industrial Estate.  This was unsatisfactory because: (i) there was no quality control of the drivers defect reporting system, (ii) prohibitions and defect notices had been issued, (iii) the MOT pass rate was considerably below the national average and (iv) the change of operating centre to Send Industrial Estate had not been notified to the Traffic Commissioner.  The Appellant accepted that the Vehicle Examiner’s account was correct but said that he intended to improve matters by employing a full-time fitter.

(iv)                On 1 June 2012 a Public Inquiry was held following a report from a Traffic Examiner that one of the Appellant’s vehicles had been used abroad without a Community Licence and a report from a Vehicle Examiner who had found a number of shortcomings.  At the conclusion of this Public Inquiry the licence was suspended for 7 days.  The suspension was to be completed before 31 August 2012.  In addition two further undertakings were recorded on the licence.  The first was that the Appellant would attend a refresher course, organised by an approved provider, before 30 September 2012, and the second was that maintenance systems, maintenance documentation and vehicle inspections would be audited by an approved person or body by 30 September 2012, with a further audit by 30 March 2013.

(v)                 At the conclusion of his decision following this Public Inquiry the Deputy Traffic Commissioner said this:

“It follows from my findings detailed above that he can retain his repute but he should be in no doubt, whether as an operator or as a Transport Manager, that any future contravention will be viewed with the content of this inquiry in mind”.

(vi)                On 15 June 2012 the Office of the Traffic Commissioner, (“OTC”), wrote to the Appellant setting out the result of the Public Inquiry.  The letter spelt out the terms of the undertakings, which the Appellant had agreed to give.  On 6 July 2012 the Appellant returned a signed document in which he agreed to the undertakings.  He also acknowledged that failure to comply with them could result in disciplinary action.

(vii)              On 4 July 2012 a Vehicle Examiner made an unannounced visit to the unauthorised operating centre, used by the Appellant, at Send Industrial Estate. This followed reports about two incidents.  The first was that one of the Appellant’s vehicles had been involved in an accident while transporting 60 children on a school trip.  The accident was not reported to the Traffic Commissioner or to VOSA. As a result of the accident two children were taken to hospital.  The second was that on 15 May 2012 a vehicle was used for a school trip three days after its MOT certificate had expired.  The Vehicle Examiner had some difficulty making contact with the Appellant but he was able to inspect some records on 23 July 2012.  He inspected further records, by appointment, on 23 October 2012.  Amongst other things he found no evidence that the undertaking in relation to rolling brake tests had been carried out.  In relation to the accident the Appellant said that he had believed that the MOT certificate expired in June and that when he discovered his mistake, on 16 May 2012, he immediately took the vehicle off the road.

(viii)             The outcome of this investigation was initially assessed as ‘satisfactory’.  However the Vehicle Examiner then became aware of the standard of a vehicle submitted for its annual MOT test.  In the light of this additional information the investigation was re-assessed as ‘unsatisfactory’.  Further investigation in relation to this vehicle revealed that the vehicle failed on three consecutive occasions.  The Vehicle Examiner considered that the number and nature of the defects called into question the Appellant’s ability to inspect vehicles to the correct standard.  The Vehicle Examiner found that there had been some improvements since the previous inspection but he pointed out that even though the forward planning system appeared to be adequate it had allowed a vehicle to be used on a school trip without a valid MOT certificate.  Overall the annual test failure rate was assessed as ‘very poor’ at 57% as against a national average of 10.78%.  The Vehicle Examiner concluded that the Appellant was not complying with the statement of intent with regard to maintenance which he made when applying for the operator’s licence.

(ix)                On 2 November 2012 the OTC,  wrote to the Appellant setting out the undertakings given on 1 June 2012.  The Appellant was asked to provide confirmation that he had complied with these undertakings.

(x)                 On 7 January 2013 the Appellant was called to a Public Inquiry, which was to be held on 13 February 2013.  The Appellant was warned that the Traffic Commissioner would consider taking action on a number of grounds, including loss of good repute and failure to fulfil undertakings recorded on the licence.  The letter provided a detailed summary of the evidence on which the Traffic Commissioner intended to rely.  It also warned the Appellant that he was being called to the Public Inquiry in his capacity as the nominated Transport Manager and that if the Traffic Commissioner determined that he had lost his good repute as Transport Manager he would be required to disqualify him.

(xi)                On 11 February 2013 the Appellant provided the OTC with a copy of a maintenance agreement with an independent contractor.  The agreement bears the same date.

(xii)               The Public Inquiry took place before the Traffic Commissioner on 13 February 2013.  The Appellant was present, represented by Mr P Carless junior.  The Vehicle Examiner was also present.

(xiii)             Mr Carless informed the Traffic Commissioner at the outset that, belatedly, a maintenance systems audit had been carried out by Mr Gibbs.  The Traffic Commissioner replied that he had only just received a copy.  Mr Carless also provided evidence that the Appellant had given formal notification of a change of correspondence address.

(xiv)             The Appellant then gave evidence.  He was asked about the accident when a coach was carrying schoolchildren.  He said that the explanation appeared to be ‘driver error’ but not to a degree that resulted in prosecution.  He said that he thought that he was meant to notify VOSA but had been led to believe that the Police had done so.  The Traffic Commissioner pointed out that he should have been notified the Appellant replied: “sorry, Yes”, adding that he hadn’t realised that it was urgent given that the Police had contacted VOSA.

(xv)              The Appellant accepted that a vehicle had been used on a school run three days after its MOT certificate had expired.  He said that when it was drawn to his attention he did not think that the suggestion was correct but that having checked his records, after the vehicle developed a fault, he discovered that it was, at which point he immediately took the vehicle off the road.  He said that he then checked the wall planner and discovered that the MOT for this particular vehicle had not been entered.  He said that he then confirmed that the dates for all the other vehicles had been correctly entered.

(xvi)             The Appellant went on to say that he had six or seven vehicles in regular use.  He said that the majority of the business was for schools or colleges but that there was some private hire work at week-ends.  He explained that the operating centre was at the address given at paragraph 2(i) above, though he accepted that for a time vehicles had been kept at the unauthorised address at Send and that they had, occasionally, been kept there since the last Public Inquiry.  The Appellant acknowledged that unauthorised use of an operating centre was a criminal offence.  The Traffic Commissioner reminded him of the terms of the first undertaking recorded on the licence in relation to notification, within 28 days of a change of business address or the address of the operating centre.  The Appellant replied that the premises at Send had been inspected and that he had assumed, as a result, that this would have resulted in a change in operating centre being made.

(xvii)            In answer to questions about maintenance the Appellant said that he had been doing his own maintenance for 13 years.  He said that he has no formal or recognised qualifications.  He said that he had now decided to outsource maintenance and that that included MOT test preparation.  The Appellant said that he had been advised to get logged in to the Operator Compliance Risk Score system, (“OCRS”).  When asked for his current score he said that he did not know it because he had not yet logged in.

(xviii)          The Appellant was then asked about undertakings given at the earlier Public Inquiries.  He described an undertaking as something that he had agreed to do, ‘a promise’.  In relation to the roller brake test undertaking he agreed that one reason for it was to help to ensure that the vehicle did not fail an MOT test because of the brakes.  He said that having given the undertaking it was a struggle to comply with it, but that from September 2012 he had found a local company which had enabled him to do more roller brake tests.  The Vehicle Examiner, who had visited the operating centre in October 2012 said that he had been unable to find evidence that such tests had taken place.  The Traffic Commissioner pointed out that the undertaking dated back to 2006.  He went on the make this point:

“I mean it is an undertaking on your licence to do it at these periods.  This is actually quite serious because if I cannot trust you to carry out undertakings, then there is no point in you offering any.  In which case there is not much point in having a licence, really”.

The Appellant indicated that he could provide evidence of the tests that had been undertaken within a week or so.

(xix)             The Appellant was then asked about the undertaking that he would attend a refresher training course before the end of September 2012.  He said that he had booked to attend a course on 11 September but that a major traffic accident prevented him from attending.  He said that the next course, which was to have been in February 2013 had been cancelled and that he was booked on a course on 4 June 2013.  In response to further questioning the Appellant said that he had understood that he had undertaken to attend for Passenger Operator Licence Awareness Training.  The Traffic Commissioner made the point that the failings identified at the previous Public Inquiry would have been covered by Awareness Training for either goods or passenger transport operations.

(xx)               The Traffic Commissioner then turned to the undertaking to have an independent audit of the systems, documentation and inspections relating to the Appellant’s operation by the end of September 2012.  The Appellant explained that he had looked into the options for fulfilling this undertaking and that in doing so: “time got away from us more than I’d expected it to”.  He added that he had not let the Traffic Commissioner know about the delay.  He accepted that that was his fault.  He said that he had commissioned Mr Gibbs to do the audit at the end of December 2012 and that the audit actually took place on 9 February 2013.  The Traffic Commissioner pointed out that the undertaking required the Appellant to have a second audit by 30 March 2013.  The Appellant replied that it was booked for 13 April 2013.

(xxi)             Dealing with the undertakings generally the Appellant accepted that he had not fulfilled them within the timescale he had promised.  He apologised to the Traffic Commissioner and said that he felt annoyed with himself and that he only had himself to blame.  A little later the Appellant accepted that he had mostly if not completely destroyed any trust that the Traffic Commissioner had in him.  When asked about the consequences of regulatory action the Appellant said that revocation would obviously close the business but that it would be able to continue if the number of vehicles was reduced from 11 to 6 or 7.

(xxii)            The Traffic Commissioner then referred the Appellant to the report from Mr Gibbs.  He quoted the executive summary which was that:

“The Operator has an entirely ineffective maintenance regime in place.  Mr Roots is neither trained nor qualified to carry out these inspections.  Consequently the degree of defects, some of which are safety related, that are allowed to continue in service is unacceptable.”

The Traffic Commissioner then dealt with some of the detail in the report pointing out that Mr Gibbs had referred to examples of the same defect appearing on a driver’s defect report before and after a safety inspection had been carried out.  The Appellant said that ultimately it was down to him to make a decision as to whether the vehicle was roadworthy, which was why he needed more training.  The Traffic Commissioner indicated that he struggled to find much that was positive in the report but he appreciated the Appellant’s honesty in handing it in.

(xxiii)           The Traffic Commissioner quoted from part of the decision of the Deputy Traffic Commissioner in June 2012 and said that it was worrying that the first two shortcomings to be singled out by his Deputy, (no quality monitoring of defect reports and not all driver’s defects recorded), had not been attended to by the time of the audit conducted by Mr Gibbs.  The Appellant, in effect, explained that these shortcomings could be explained as differences of opinion as to the seriousness of defects.

(xxiv)          At the conclusion of the Public Inquiry the Traffic Commissioner indicated that he would give a written decision.  He said that he would be prepared to take additional material into account if submitted quickly.

(xxv)            On 15 February 2013 VOSA provided details of the ‘encounter history’ for the period after the Public Inquiry on 1 June 2012.  That showed that there were 8 roadworthiness encounters as a result of which 2 delayed prohibitions were issued and 3 defect notices were issued to other vehicles.  In addition there were 3 traffic encounters with a prohibition and a fixed penalty being issued for a driver’s hours offence of failing to produce records.

(xxvi)          On 19 February 2013 the Appellant wrote to the Traffic Commissioner.  He confirmed that the evidence he had given in relation to the MOT pass rate was correct and said that a pass rate of 70%, (possibly 80%) appeared to be satisfactory.  He added that he had registered with the OCRS system and found that he was in the green band for roadworthiness but in the red band for traffic offences, as a result of a driver failing to produce tachographs/working hours records at the roadside.  The Appellant assured the Traffic Commissioner of his willingness to improve all the aspects of his business which needed attention.

(xxvii)         On 20 February 2013 the Appellant provided copies of 6 invoices for roller brake tests.  On 26 February 2013 he wrote to the Traffic Commissioner to provide confirmation that he was booked onto a refresher course for operator licensing awareness training.  He also said that there had been 10 rather 8 roadside encounters, giving a prohibition rate of 20%, which he believed to be lower than the national average.

(xxviii)        The Traffic Commissioner issued a written decision dated 27 February 2013.  He set out the history, the evidence and the additional material which he had received, all of which we have summarised above.  He pointed out that the Appellant came to the Public Inquiry with an already tarnished record.  He said that there was no evidence that the undertaking to carryout roller brake testing had been carried out before 27 August 2012, in other words 6 years after the undertaking was given.  He referred to the Appellant’s failure to comply, on time, with other undertakings and to other unsatisfactory features of the case.  The Traffic Commissioner then listed 7 favourable features, including the fact that the audit had been carried out and disclosed, the fact that an external maintenance contractor had been employed, the fact that the latest roadside encounters were not particularly out of line with the industry average and the fact that the most recent MOT test resulted in a first time pass.

(xxix)           The Traffic Commissioner went on to find that the Appellant had breached the three undertakings given at Public Inquiries, that in addition he had broken three of the undertakings given when applying for the licence and that he had incurred prohibitions.

(xxx)            The Traffic Commissioner then considered the question of good repute.  He took into account the fact that the Appellant failed to fulfil undertakings on time and that he had failed to inform the Traffic Commissioner that had not fulfilled the undertakings.  He concluded that the detailed report from the external auditor of “an entirely ineffective maintenance regime” outweighed the more favourable picture in relation to prohibitions.  He came to the conclusion that it was unlikely that the Appellant could be relied on to operate compliantly in the future.  In doing so he relied on the past history of partial compliance with undertakings, at the last moment, and the fact that the suspension of the Appellant’s operator’s licence and warnings given at earlier Public Inquiries had not had the desired effect.  The Traffic Commissioner then turned to the question of whether the Appellant ought to be put out of business.  He concluded that because the Appellant had failed to heed warnings and was unlikely to operate compliantly in the future and because it was impossible to conclude that the licence would be in safe hands, if the Appellant continued to operate the answer had to be that it was appropriate to put him out of business.

(xxxi)           As a result the Traffic Commissioner concluded that the Appellant had lost his good repute, not only as an operator but also as a Transport Manager.  He revoked the operator’s licence, with effect from 1 April 2013 and varied the relevant condition of the licence to reduce the number of vehicles authorised from 11 to 6 with immediate effect.  The Traffic Commissioner then pointed out that he was required by paragraph 7B of Schedule 3 to the Public Passenger Vehicles Act 1981 to disqualify the Appellant from acting as a transport manager under any operator’s licence.  He set the term of the disqualification at one year from 1 April 2013 explaining that it was to: “give Mr Roots time to reflect on what went wrong, rehabilitate himself and to acquire fuller knowledge of the responsibilities of a transport manager if he wants to exercise that function again”.

(xxxii)         On 25 March 2013 Notice of Appeal was filed on behalf of the Appellant.  The ground of appeal advanced was that the Traffic Commissioner had failed to give sufficient weight to the recent improvements made by the Appellant.  Reliance was placed, in particular on the improved MOT and road-side check performance, the commitment to regular audits and the Appellant’s realisation that a more robust maintenance regime was needed.

3.           At the hearing of the appeal the Appellant was represented by Mr Paul Carless senior.  While he frankly and realistically recognised the difficulty of arguing that the Traffic Commissioner had attached too little weight to the recent improvements he nevertheless sought to make three points. The first was that revocation was disproportionate, the second was that he had never previously heard of a Vehicle Examiner changing the outcome of the maintenance investigation from ‘satisfactory’ to ‘unsatisfactory’ and the third was that given the amount of material submitted after the end of the Public Inquiry the Traffic Commissioner should have re-convened the Public Inquiry to deal with it. However the main focus of his submissions concerned the length of the disqualification, his argument being that the purpose set out by the Traffic Commissioner could have been achieved by a much shorter period of disqualification.

4.           The Tribunal has stressed on many occasions that Traffic Commissioners have the great advantage of seeing and hearing the witnesses at a Public Inquiry.  As a result they are in a much better position to assess the weight to be given to different aspects of the evidence.  In the present case the Traffic Commissioner took great care to identify both the favourable and the unfavourable aspects of the evidence in this case, all of which he set out with great clarity.  He explained that he felt that the adverse findings in a very thorough audit report outweighed the more recent improvements.  In our view that is a conclusion which the Traffic Commissioner was entitled to reach.  Given the state of the evidence and the care with which the Traffic Commissioner justified his conclusion we are satisfied that it was proportionate and that there is quite simply no possible basis on which the Tribunal could interfere.

5.           The Vehicle Examiner explained that further information in relation to a MOT test failure led him to re-consider the conclusion to his report.  While we agree that this is most unusual we are satisfied that it does not provide justification for overturning a decision that was founded on other evidence of a compelling nature.  While we agree that it would have been open to the Traffic Commissioner to reconvene the Public Inquiry to allow for more detailed consideration of the material submitted after the Public Inquiry we are satisfied that this was not essential in the present case.  It is significant that the Appellant, who was represented, did not invite the Traffic Commissioner to reconvene.  Insofar as the material was provided by VOSA the Appellant was given the opportunity to comment in writing and did so.  Insofar as the material came from the Appellant himself it was accompanied by a covering letter.  Given the overall state of the evidence we are satisfied that the Traffic Commissioner was entitled to proceed on the basis of this additional written material, without reconvening the Public Inquiry.

6.           In our view this was a bad case of an operator who, for a significant period, chose to ignore many of the obligations imposed by the operator’s licensing regime.  In addition he was dilatory in taking steps to comply with undertakings given at earlier Public Inquiries.  Given his failure to keep the promises made at those Public Inquiries it is hardly surprising that the Traffic Commissioner concluded that he could not be trusted to comply with the regulatory regime in the future.  While the Traffic Commissioner did not expressly say so we have little doubt that he had in mind that the jurisdiction of Traffic Commissioners is ‘preventative’ in nature.  By this we mean that Traffic Commissioners are not required to wait and then react after some serious event has occurred because they can, when the evidence justifies it, take action to prevent the serious event from occurring in the first place.  In our view the evidence in this case provided the Traffic Commissioner with a compelling case for taking preventative action to revoke the licence of an operator whose lax approach to the requirements of the regulatory regime ran an unacceptable risk that sooner or later a serious accident would occur involving a bus full of children.

7.           For these reasons the appeal against the revocation of the licence is dismissed with immediate effect.

8.           As the Traffic Commissioner pointed out, once he had found that the Appellant had lost his good repute as a Transport Manager, he was obliged to disqualify him from acting as a Transport Manager.  The only question is whether disqualification for a year was too long.  The Traffic Commissioner provided a succinct explanation for this period saying that it was to: “give Mr Roots time to reflect on what went wrong, rehabilitate himself and to acquire fuller knowledge of the responsibilities of a transport manager if he wants to exercise that function again”.  In our view it is essential for each of these things to happen if the Appellant is to take on the position of Transport Manger at some future date.  Given the dilatory response of the Appellant in the past, when it must have been apparent that improvement in his performance as an operator and as a Transport Manager was essential we can see no justification for a disqualification of less than 12 months.  If history repeats itself the Appellant may find it difficult in mid 2014 to satisfy the Traffic Commissioner that he has made sufficient progress to be entrusted, once again, with the responsibility of acting as the Transport Manager for a PSV operator’s licence.

9.           For these reasons the appeal against the length of the disqualification is also dismissed with immediate effect.

 

 

 

 

 

His Hon. Michael Brodrick, Judge of the Upper Tribunal,

Principal Judge for Traffic Commissioner Appeals, President of the Transport Tribunal.

20 August 2013