Neutral Citation Number: [2013] UKUT 0428 (AAC)

Appeal No.  T/2013/36

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of

Richard Turfitt, Traffic Commissioner for the

East of England Traffic Area dated 22 April 2013

 

 

 

Before:

Her Honour Judge J Beech, Judge of the Upper Tribunal

John Robinson, Member of the Upper Tribunal

David Rawsthorn, Member of the Upper Tribunal

 

 

Appellant:

 

 

IAN JOHN SMITH

 

 

Attendances:

For the Appellant: James Backhouse of Backhouse Jones Solicitors. 

 

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

Date of hearing: 20 August 2013

Date of decision:   4 September 2013

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

 

IT IS HEREBY ORDERED that this appeal be DISMISSED

 

 

 

SUBJECT MATTER:-  Revocation of licence; disqualification

 

 

CASES REFERRED TO:-  None

 

REASONS FOR DECISION

 

 

1.           This was an appeal from the decision of the Traffic Commissioner for the East of England Traffic Area made on 22 April 2013 when he revoked the partnership licence of Paul Anthony Smith and Ian John Smith under s.27(1)(a) of the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”) and disqualified both operators from holding or obtaining an operator’s licence for a period of three years under s.28 of the Act.

 

2.           The factual background appears from the documents and the Traffic Commissioner’s written decision and is as follows:

 

(i)              Paul Anthony Smith (“Paul Smith”) and Ian John Smith (“Ian Smith”) held a standard international operator’s licence authorising three vehicles and three trailers.  They are father and son respectively.  The licence was granted in June 2005 and the transport manager was Paul Smith.  Ian Smith is a farmer who uses the specified vehicles to collect food waste for feeding his cattle, to transport beet during the beet season and to transport “muck” for spreading.  Paul Smith used the vehicles occasionally when he needed to and helped his son out from time to time.  Otherwise he undertook agency driving.

(ii)             On 14 March 2013, Paul Smith and Ian Smith were called to a public inquiry for the Traffic Commissioner to consider taking regulatory action in respect of their licence.  Unauthorised use of an operating centre, prohibitions, breach of statements and undertakings in relation to maintenance and drivers’ hours rules, material change, financial standing, good repute and professional competence were all in issue.  Paul Smith and Ian Smith attended the public inquiry and were unrepresented.

(iii)            The findings of the Traffic Commissioner were as follows:

a)    Paul Smith and Ian Smith had failed to demonstrate adequate finances to support even one vehicle.  Further time was given to the operators’ to produce additional evidence but that which was forthcoming did not improve matters greatly.  In the result, the operator’s licence was revoked under s.27(1)(a) (lack of financial standing and material change);

b)    There was no evidence to suggest that Paul Smith and Ian Smith were in a partnership but rather that the operator’s licence was being utilised by Ian Smith alone with Paul Smith using the vehicles occasionally.  Paul Smith was under the mistaken impression that as the nominated transport manager, his name needed to be on the licence.  The Traffic Commissioner considered that the decision of Ian Smith not to inform Paul Smith of the maintenance investigation that took place in December 2011 despite his father being his business partner and the nominated transport manager on the licence to be “telling”.  The Traffic concluded that there had been a material change since the licence was granted and that this was an additional ground for revocation of the licence.

c)     VE Salter undertook a maintenance investigation in March 2011 when both operators were present.  Maintenance was in house and the records were “remarkably clean and pristine”.  The declared preventative maintenance inspection frequencies were six weeks for vehicles and eight weeks for trailers.  There were gaps of up to 19 weeks between inspections.  The annual test history over the previous five years showed an initial failure rate of 50%.  The Traffic Commissioner found that he was justified in taking action under s.26(1)(e) of the Act in relation to the inspection of vehicles.

d)    On 15 July 2011, VE Salter found the only tractor unit operated under the licence (SN54 CCY) was parked outside Ian Smith’s home on Mill Hill Lane, March.  A trailer was attached to it.  The vehicle was issued with a delayed PG9 for an insecure fifth wheel, although there was no risk of failure and the trailer was issued with an immediate “S” marked PG9 for a brake defect and a disconnected load sensing valve.  Ian Smith maintained that he only used the trailer (A24163) for moving muck from one side of the lane to the other.  He stated that he was not going to clear the prohibition from the trailer as he had no intention of taking it onto a public highway.  However, the Traffic Commissioner was satisfied that it had been used on a public highway because it had been moved from the operating centre to Mill Hill Lane in the condition it was found in earlier by VE Salter.

e)    On 28 September 2011, VE Salter inspected a trailer (A106707) which was situated at a farm waiting to be loaded with waste.  It belonged to Ian Smith.  The MOT had expired in July 2011 and it was found to have faulty tyres.  A few days later, the trailer was removed from the site late at night and replaced by another one.  The trailer passed its MOT test on 19 October 2011.  Ian Smith maintained to VE Salter that the trailer was only used to move waste around the customer’s premises but the farm had its own machinery for that.  In evidence, Ian Smith confirmed that he had been using the trailer to collect vegetable waste.  He said he had changed the defective tyre before removing the trailer from the site.  He had not completed a driver defect report although he accepted that he “supposed” he should have done.  He accepted that he had used the trailer on a public road without an MOT certificate in order to return it to the operating centre to arrange a test. 

f)      In December 2011, VE Salter and TE Gardener carried out a joint maintenance and drivers’ hours investigation.  Both were unsatisfactory.  The maintenance shortcomings were summarised as: gaps in the inspection frequency; a motor vehicle was not shown on forward planner; prohibitions had been attached to the licence; there was doubt as to transport manager’s role within the business. 

g)    On 17 January 2012, VE Salter was on a mobile road check when he observed Ian Smith driving SN54CCY coupled to trailer A24163 on Knights End road.  The vehicle eventually parked on a field on Mill Hill Lane.  The trailer was still the subject of an immediate PG9 as no work having been carried out upon it to clear the prohibition issued in July 2011 and its MOT certificate had expired.  A second “S” marked PG9 was issued.  When giving evidence, Ian Smith queried whether a PG9 should have been issued to the trailer at all as it was being used for “limited agricultural use”.  He accepted however that the PG9 was justified for the disconnected load sensor valve, although its disconnection would have had no effect on brake efficiency when the trailer was empty.  The Traffic Commissioner found breaches of undertakings justifying action under ss.26(1)(c)(iii) and 26(1)(f) of the Act.

h)     During the course of the hearing, VE Salter had an opportunity to examine the PMI records and other records that Paul Smith and Ian Smith had brought with them.  He noted that there were no brake test recordings on any of the PMI records or tyre tread depths.  Some of the trailers were being inspected at 6 weekly intervals rather than the declared 8 weekly intervals.  There were some extended intervals when it appeared the annual test was being treated as a PMI.  Ian Smith stated that some pre-MOT preparation was undertaken on the vehicle and trailers but  no records were kept of the work.  Other extended intervals were explained by the trailers being “off road” but no record was kept of when this had occurred.  Both operators accepted that there should have been better record keeping and monitoring.

i) Turning to the findings of TE Gardener, his analysis of the tachographs requested for the period 1 September to 30 November 2011 revealed:

·  One occasion of exceeding the 10 hour driving period;

· Driving in excess of 4 ½ hours without taking a required break on four occasions;

· Use of a tachograph chart for longer than 24 hours on twenty eight occasions;

· Failure to enter details on the tachograph centrefield on thirty eight occasions (the return destination).

Of concern was Ian Smith’s failure to keep a record of his other work as a farmer.  Similarly there was no record of weekly rest periods.  The charts themselves were of concern.  There were two consecutive records for 26 September 2012 showing an offence of 4 ½ hours driving without a break.  Ian Smith drove a total of 8 hours 41 minutes without taking one qualifying break of 15 minutes.  The first tachograph was removed from the head at 11.52 hours and the second inserted at 11.56.  He had a daily driving period of 12 hours 9 minutes.  TE Gardener concluded that Ian Smith must have been aware that he was approaching his daily driving limit and made the decision to create two records.  In relation to the charts produced by the operators at the hearing, a “dip sample” revealed two occasions of exceeding 4 ½ hours driving without a break.  Many of Paul Smith’s answers to questions confirmed that much of Ian Smith’s driving took place at the end of a working day on the farm.  As a result of the evidence on this issue, the Traffic Commissioner was satisfied to the civil standard that the relevant undertaking had not been complied with and that he was justified in taking action under s.26(1)(f) of the Act.

j) Finally, Ian Smith had persistently failed to attend for interview as requested by both TE Gardener and VE Salter.  He was written to on four occasions by TE Gardener requesting that he attend for interview and on three occasions by VE Salter.  Either Ian Smith failed to respond or he cancelled the appointments at the last minute. 

(iv)           In undertaking his balancing exercise, the Traffic Commissioner noted that Ian Smith had described himself as having made “a few mistakes”.  He produced a driver defect report book to the Traffic Commissioner which contained reports which were not dated and reports without trailer identification numbers added.  Both operators had a “casual approach to compliance” and the Traffic Commissioner was not satisfied that Ian Smith appreciated the potential impact and risk presented to other road users by using vehicles on public roads when prohibited.  There appeared to be little change in the operators approach since VE Salter intervened and Ian Smith placed the blame for coming under the spotlight onto someone who had contacted VOSA and had caused the initial investigation into his operation.  He was reluctant to admit that he had been using a trailer without an MOT.  The Traffic Commissioner was “alarmed” to learn that  Ian Smith would sign off a vehicle as roadworthy following a PMI without undertaking a road test as he preferred testing the brakes when the vehicle was in a factory compound.  Ian Smith’s general approach to maintenance presented a potential risk to other road users.

(v)            The Traffic Commissioner was critical of Paul Smith’s conduct as transport manager which was far below the standard expected of a reputable transport manager (we note that Paul Smith had described himself as transport manager “in name only”).  The Traffic Commissioner concluded that it was proportionate to take action in respect of Paul Smith’s CPC and made a finding that he no longer met the requirements of s.13(a)(3)(a) of the Act and disqualified him as a transport manager until he had retaken the relevant examinations and had obtained a new CPC certificate. 

(vi)           The Traffic Commissioner then considered whether he could trust Paul Smith and Ian Smith to operate compliantly in the future (the “Priority Freight question”) and concluded that he could not.  When considering the potential impact of any order arising out of a finding of loss of repute, he noted that Paul Smith had said in evidence that “there was no real money in the transport operation”.  The benefit derived was that of Ian Smith being able to feed his cattle with the waste he collected using the vehicle and trailers in question.  Ian Smith described himself as “basically getting a living” from his farming operation.  He could not feed his cattle without the lorry.  Following questioning on the point, the Traffic Commissioner was left with the impression that it would be more inconvenient for Ian Smith to use alternative agricultural vehicles to collect the waste due to the design of the trailers.  The Traffic Commissioner then concluded that an adverse finding against Ian Smith’s repute resulting in the revocation of the operator’s licence would not lead in itself to the end of the farming business.  The Traffic Commissioner was concerned about the impact on road safety should the Smiths’ be allowed to continue to hold a licence.  Having revoked the operator’s licence, the Traffic Commissioner then disqualified Paul Smith and Ian Smith from holding or acquiring a licence for a period of three years. 

 

3.           The basis of Ian Smith’s appeal (“Mr Smith”) was that the Traffic Commissioner was wrong to find that the loss of the operator’s licence would not bring an end to his farming business.  The loss of the licence would have the opposite effect.  He would be unable to feed 190 head of cattle thus depriving him of his livelihood and his ability to support his wife and seven children.  He described himself as “not well educated”  with some learning difficulties.  He had not explained his situation well enough at the public inquiry and this may have affected the Traffic Commissioner’s decision.  He accepted that he had made serious mistakes and there had been misunderstandings in the past but he had learnt by them and he was taking action to prevent recurrences in the future.  He was looking for a safe and legal way to take his business into the future. 

4.           At the hearing of this appeal, Ian Smith appeared without representation but was in the company of his father.  However, at the request of the Tribunal, Mr Backhouse spoke to Mr Smith and then kindly assisted him with his appeal.  Mr Backhouse accepted at the outset that the Smiths were not operating as a partnership and so the operator’s licence had to be revoked.  He described Mr Smith as lacking sophistication in his operation of vehicles.  Whilst he may have believed that the agricultural exemption from the need to hold an operator’s licence might benefit him, his operation and vehicles could not fall within it.  Mr Backhouse conceded that it was implicit that the Traffic Commissioner’s decision was correct in relation to revocation.  However, he had been wrong about the likely adverse effect of revocation upon the farm business.  Mr Smith did need to move waste onto the farm from customer’s premises to feed his cattle using a tractor unit and trailer. 

5.           Mr Backhouse described Mr Smith as being naive to a high degree.  He had not understood that the compliant operation of vehicles was fundamental to the farm business rather than being incidental to it.  It was Mr Backhouse’s opinion that Mr Smith needed a restricted operator’s licence.  He had not been operating vehicles since May 2013 and now appreciated what he had to do.  He had now been advised that he should apply for a restricted operator’s licence in his own name for one vehicle and that prior to that application being made, he should attend an intensive operator licence course.  Mr Smith indicated to the Tribunal that he would take a CPC course but he was worried that the difficulties he has (as described in paragraph 3 above) may inhibit his ability to pass such a course. 

6.           Mr Backhouse asked the Tribunal to conclude that in all of the circumstances the length of the disqualification order made by the Traffic Commissioner was too long.  He submitted that we should set aside that order and substitute our own order to the effect that the order of disqualification should be for three years unless Mr Smith completed an appropriate training course within the three year period. 

7.           This was a very serious case where Mr Smith failed to appreciate despite advice from VE Salter and TE Gardener that his responsibilities as an operator were fundamental to the continuing success of his farming business rather than treating his responsibilities as an operator as an irritating side issue.  His approach to operator licensing was cavalier although he was not assisted by his father whose responsibility it was to instil into Mr Smith the necessary regard and compliant attitude towards the operation of his vehicle.  Having briefly heard from Mr Smith it would appear that the revocation of the operator’s licence has come as a great shock to him and a “wake up call”.  But that is insufficient against the background of very serious non-compliance which resulted in the operation of vehicles which posed a risk to the public whilst being operated on public highways.  Mr Smith must demonstrate that he will be compliant in the future and that he takes his responsibilities as an operator seriously.  Training is a minimum requirement which may in itself pose some difficulties for Mr Smith but, more fundamentally, a change of attitude is required on his part. He needs time to reflect on whether he wishes to re-enter the road haulage industry and on what basis. In the interim, we have concluded that the Traffic Commissioner was correct in placing road safety considerations above those surrounding the operation of Mr Smith’s core farm business which we believe can and will accommodate the revocation of the operator licence. We have reminded him that he can apply within the next three years to have the order of disqualification lifted once he is able to put before the Traffic Commissioner a cogent and compelling case that he is rehabilitated and that he should be allowed to operate vehicles whether on a restricted or a standard licence basis and that he can be trusted to do so. 

8.           In the result, the appeal is dismissed.

 

 

 

Her Honour Judge J Beech

4 September  2013