Neutral Citation Number: [2015] UKUT 156 (AAC) Appeal No.  T/2014/84

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of

Marcia Davis, Deputy Traffic Commissioner for the

East of England Traffic Area dated 22 December 2014

 

 

 

Before:

Her Honour Judge J Beech, Judge of the Upper Tribunal

Michael Farmer, Member of the Upper Tribunal

 

 

 

Appellants:

 

 

TIMOTHY ROBINSON trading as ROBINSONS’ REMOVALS &

STUART ROBINSON

 

 

Attendances:

For the Appellant:

 

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

Date of hearing: 24 March 2015

Date of decision:   30 March 2015

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

 

IT IS HEREBY ORDERED that these appeals be DISMISSED with immediate effect

 

 

SUBJECT MATTER:-  Adverse maintenance investigation; failure to attend public inquiry following refusals to adjourn the hearing; failure to demonstrate financial standing; loss of repute and disqualification

 

 

 

CASES REFERRED TO:-  Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport (2010) EWCA Civ 695.

 

 

REASONS FOR DECISION

 

 

1.             This is an appeal from the decision of the Deputy Traffic Commissioner for the East of England Traffic Area (“DTC”) made on 22 December 2014 when she revoked the standard national operator’s licence of Timothy Robinson trading as Robinsons Removals under sections 26 and 27 of the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”) and disqualified the nominated Transport Manager, Stuart Robinson, for an indefinite period under s.28 of the Act. 

 

2.             The factual background to these appeals appears from the documents, the transcript and the DTC’s written decision and is as follows.  Timothy Robinson was granted a standard national operator’s licence in 2005 authorising one vehicle.  His nominated Transport Manager was his father, Stuart Robinson. 

 

3.             On 9 March 2013, Vehicle Examiner John Cripps and Traffic Examiner Dave Tomlin undertook a maintenance investigation at the operating centre at Unit A, Weedon Road Industrial Estate, Northampton, which was also the trading address of the operator’s maintenance contractor, AIS Car & Truck.  On 8 March 2013, VE Cripps spoke with Stuart Robinson (“Mr Robinson”) on the telephone and listed the documents which he was to make available for inspection the following day.  Mr Robinson stated that all of the maintenance records were kept on the computer of AIS Car & Truck and when VE Cripps enquired about the signed paper copies of the PMI sheets which Mr Robinson should have had in his possession, Mr Robinson stated that “he didn’t mind making another complaint to VOSA”.  He maintained that he had made previous complaints about the number of occasions the specified vehicle was stopped on the roadside.  He did not accept that VE Cripps was unaware of those previous complaints.

 

4.             The outcome of the investigation was unsatisfactory for the following reasons:

 

a)    Mr Robinson failed to produce the maintenance contract with AIS Car & Truck;

 

b)    No PMI sheets were available.  VE Cripps was told by Mr Robinson that the records were kept on the maintenance contractor’s computer although the maintenance contractor could not find them.  Mr Robinson stated that he kept the hard copies of the sheets at home.  He was requested to send the sheets to VE Cripps along with his response to the PG13G Notice.  No response or sheets were received by VE Cripps;

 

c)    There was no written driver defect reporting system.  Mr Robinson suggested that as he was the only driver of the specified vehicle, he did not require one and used his memory.  This was also his explanation for the absence of a forward planning system. He undertook minor repairs himself leaving the larger repairs to the maintenance contractor;

 

d)    The annual test failure rate at initial presentation was 100% over 5 years and 2 years (compared to the national failure rate of 24% and 21% respectively).  The final failure rate was 75% over 5 years (national average being 14%) and 100% over two years (national average being 12%);

 

e)    Two PG9’s had been issued to the specified vehicle.  In 2010, a delayed prohibition was issued for excessive movement in the steering joint.  In November 2012 an immediate prohibition was issued for an inoperative direction indicator;

 

f)     The specified vehicle was inspected during the investigation with only advisory defects being noted;

 

g)    Attached to the report were the following:

 

i.              A weight prohibition which was issued on 13 November 2012 for a gross overload of 14.53%;

ii.            A fixed penalty notice of £120 as a result of the above;

iii.           A fixed penalty notice dated 21 September 2012 for £30 in respect of incorrect use of the mode switch;

iv.           A fixed penalty notice also dated 21 September 2013 for £60 in respect of “dangerous use – unsuitable purpose”.

 

For reasons which are not apparent from the appeal papers, VE Cripps did not submit a public inquiry brief in relation to the above until 20 August 2014 (a delay of 17 months).  He noted that between the dates of his inspection and of his report, the authorised vehicle had not been submitted for annual test, no encounters had been recorded by the DVSA and the registered keeper of the vehicle had changed to AIS Car & Truck on 15 November 2013 and was subsequently transferred to the motor trade on 24 June 2014 whilst its details remained on the operator’s licence as the specified vehicle.

 

5.             By letters dated 15 October 2014, Timothy Robinson and Stuart Robinson were called to a public inquiry scheduled for 26 November 2014 at 2pm.  All matters were in issue.  The letter to Timothy Robinson made it clear that financial evidence to demonstrate financial standing must be submitted to the Office of the Traffic Commissioner (“OTC”) before 17 November 2014 along with any written representations the operator wished to rely upon. 

 

6.             On 29 October 2014, the OTC received two confirmation slips completed by Timothy and Stuart Robinson respectively.  Both had been annotated to read “I confirm that I CANNOT attend the public inquiry ...” (“cannot” having been substituted for “will”).  Mr Robinson then wrote to the OTC in the following terms:

 

“Owing to the fact that the pre Christmas period is very busy and profitable I am unable to attend the inquiry on that date.

I however wish to attend when you have the inquiry.  If you can rearrange it for after Christmas I will come to Cambridge.

For your interest our business current account is non interest bearing, so we put excess money in a interest bearing account which to date stands at ...”.  A figure in excess of the amount necessary to demonstrate financial standing was set out in the letter.

 

7.             On 6 November 2014, Ms Vince on behalf of the Traffic Commissioner responded to the request for an adjournment:

 

“The decision of the Traffic Commissioner is that the operator and transport manager appear to be under the misapprehension that he will consider delaying a tribunal hearing at their commercial advantage.  The Traffic Commissioner refers to the Senior Traffic Commissioner’s Statutory Document No 9 on Case Management:

 

“there is a considerable public interest in hearings taking place on the date set and so hearings should not be adjourned unless there is a good and compelling reason to do so ...”

 

In this case the operator and transport manager have failed to provide a good and compelling reason to adjourn ..”

 

Both parties were advised that it was in their interests as operator and transport manager to attend the public inquiry.

 

8.             Mr Robinson responded in the following terms:

 

“I ask you to reconsider our request .. It is not that we wont be their that date, it is because we cant (sic).

We have work agreements that we cannot get out of having previously agreed them prior to your request.

We dont regard working for money as a commercial advantage.  We are not salary earners.  We get paid for what we have agreed to do, and if we renage then we don’t get paid.  You do not see this as compelling, very strange (sic).

If you hold that meeting without us being there, it will not be an enquiry, you can call it what you want, but reading out an unchallenged statement is not an enquiry.

Or else who enquires about the enquirers.”

 

9.             The response of the OTC on behalf of the TC was that to adjourn the hearing would result in another applicant or operator being inconvenienced.  Other operators were able to accommodate attendance and as the business appeared to rely on its operator’s licence in order to continue its business, the Traffic Commissioner would expect the hearing to be given priority.  The Traffic Commissioner did not find any good or compelling reason to adjourn the hearing.

 

10.         On the 25 November 2014 Ms Vince attempted to contact the parties.  During the course of the morning of 26 November 2014, Ms Vince tried again in order to advise Timothy and Stuart Robinson that the public inquiry would proceed at 2pm that day.  She rang the contact telephone number held for the operator on the licensing computer system but that was “invalid”.  She then telephoned the mobile telephone number of the operator and Mr Robinson answered.  He confirmed that neither he nor his son would be attending the public inquiry because they were both working and could not let their customers down.  They would be willing to attend a public inquiry after Christmas.  Mr Robinson asked if they were able to appeal the DTC’s decision and he was advised that they were.

 

11.         The DTC delayed the start of the public inquiry to 2.45pm to allow Timothy and/or Stuart Robinson to attend.  They did not do so.  The DTC then proceeded to determine the issues set out in the call up letter by way of an oral decision, later providing a written decision dated 22 December 2014.  She first of all determined that the request for an adjournment may have been a device to postpone the impact of adverse findings being made by the DTC at the conclusion of the public inquiry.  The explanation of pre-booked work was not a good or sufficient justification for an adjournment and if it were, then the justification could be used by every operator and transport manager to delay a public inquiry.  She determined that in the absence of the operator, the transport manager could have attended.  In the absence of both, which was a discourtesy and an attempt to undermine the regulatory system, written representations could have been made.  The Transport Manager, who was responsible for one vehicle could and should have prioritised the public inquiry as it was his repute which was in question.  The same point applied equally to the operator.  The DTC made a finding that Timothy and Stuart Robinson had deliberately absented themselves from the hearing.  As a result, the DTC had nothing before her to assist in determining the extent to which the operator had attempted to remedy the shortcomings identified by VE Cripps or to challenge his findings.  It was unacceptable and objectionable for both the operator and transport manager to ignore the request for attendance and then seek to rely on the fact that there was a right of appeal.  The DTC made the following findings:

 

a)    There had been a “deliberate snub” to a very reasonable request for finance to be demonstrated by 17 November 2014, and in the absence of financial evidence, there had been a material change in the circumstances of the operator as he had failed to demonstrate that he had sufficient financial resources (s.26(1)(h).  An adverse finding under s.27 of the Act was also made which resulted in the mandatory revocation of the licence;

 

b)    Prohibition notices had been issued (s.26(1)(c)(a) of the Act);

 

c)    Statements of intent had not been fulfilled, namely that vehicles would be inspected at six weekly intervals (s.26(1)(e) of the Act);

 

d)    Undertakings had not been fulfilled relating to keeping vehicles fit and serviceable and not overloaded and the retention of records for a period of 15 months. 

 

The DTC also made findings that there had been a breach of the condition recorded on the licence that changes in maintenance arrangements be notified to the Traffic Commissioner and that a statement of intent had not been fulfilled, namely that PMI’s and maintenance would be carried out by AIS Car and Truck.  The former of those findings cannot be sustained as AIS Car and Truck had been the nominated maintenance contractor from the outset when the licence was granted and continued to be so.  The DTC also found that there had been a breach of the undertaking that the rules on drivers hours and tachographs would be complied with although there was no evidence in the appeal bundle that any requests had been made for the production of those documents either to the operator or transport manager prior to the public inquiry taking place. 

 

12.         Turning to the issue of good repute, the DTC reminded herself that the licensing system was based on trust, not only between the operator and the Traffic Commissioner but also between operators.  As a result of the deliberate absenteeism of Timothy and Stuart Robinson and the unchallenged evidence of VE Cripps which identified significant failings, the commitment, suitability and competency of the operator and transport manager were called into question.  There was no evidence to show what steps they had taken in order to address the failings identified by VE Cripps despite having been given an opportunity to do so.  It was clear that a decision had been made not to attend the public inquiry until such time as it suited the operator’s business commitments.  They put their financial concerns ahead of the need to attend the hearing and respond to the evidence of VE Cripps.  As a result, the DTC was not satisfied that any steps had been taken to put matters right or that such steps would be taken in the future (the Priority Freight question).  Further, she was not satisfied that the operator and transport manager understood the importance of compliance and she determined that Mr Robinson could not be trusted in the future and that he had lost his good repute.  As a result of VE Cripps findings and her conclusions, the DTC was satisfied that the revocation of the licence was the balanced and proportionate approach (the Bryan Haulage question) in addition to the mandatory revocation resulting from the absence of any evidence of financial standing.

 

13.         As a result of the finding that Mr Robinson had lost his repute, the DTC disqualified Mr Robinson for an indefinite period.  He needed to demonstrate that he had “changed his ways” before he could hope to persuade the Traffic Commissioner that his repute had been restored.  The DTC did not consider that any specific rehabilitation measure was appropriate over and above the order of disqualification.

 

14.         Mr Robinson submitted a Notice of Appeal on 23 December 2014.  During a telephone conversation with a member of the Upper Tribunal staff, Mr Robinson confirmed that he was appealing the decision of the DTC as it related to him in his capacity as the Transport Manager.  He was not appealing on behalf of the operator.  However, it became clear at the outset of the appeal hearing that he was in fact appealing the decision to revoke his son’s operator’s licence as well as the decision that Mr Robinson had lost his good repute. 

 

15.         Mr Robinson’s grounds of appeal read as follows:

 

“It could not be an enquiry if I was not there to challenge the evidence where applicable.  I told them weeks before I was committed to work and putting the date forward to January would be OK.  They said working for a living was not a compelling reason for not coming.  ... Mr Cripps evidence is full of half truths on some very important details.  As the commissioner was not at the scene, how could she enquire.  It was therefore not fit for purpose.  I want the enquiry reconvened ..”

 

16.         Mr Robinson’s first point to the Tribunal was that the Traffic Commissioner had been wrong to refuse his application for an adjournment of the public inquiry hearing.  The business of removals was seasonal and very profitable immediately prior to Christmas.  It then “died a death” at the beginning of the New Year.  The Traffic Commissioner should have taken this into consideration and adjourned the hearing to a date in January.  When asked why he did not provide to  the Traffic commissioner, when making his requests for an adjournment, any evidence to demonstrate that he and his son were under some significant contractual obligation which they could not avoid on 26 November 2014, Mr Robinson informed the Tribunal that he had not been asked to provide such evidence and the onus was on the Traffic Commissioner to request the information if it was considered to be relevant.  It was not for him to provide such evidence without prompting.

 

17.         Mr Robinson’s second point was that as a result of his non-attendance, the hearing could not be described as a “proper public inquiry”.  The report of VE Cripps remained unchallenged and it would have been “better” if Mr Robinson had been given the opportunity to attend to cross examine VE Cripps upon his findings.  When asked why he did not respond to the PG13G form served upon him by VE Cripps on the day of the investigation, Mr Robinson did not know the reasons why.  He did not provide the maintenance agreement or the PMI sheets as requested by VE Cripps because the maintenance contractor’s computer “was down” and Mr Robinson was not provided with copies of the PMI sheets in the ordinary course of business by the contractor because the operation was a “one van band”.  In any event, to respond to the PG13G would have been an “enormous task”.  As for the failure to provide evidence of financial standing in the form of bank statements, he did not feel that it was necessary because he was not attending the public inquiry.  He had set out the total amount that was kept by his son in an interest bearing account when he had written to the Traffic Commissioner.  Mr Robinson would not have lied about that and so his statement should have been deemed to be adequate evidence of financial standing. 

 

18.          Mr Robinson’s third point was that if the public inquiry had been adjourned, he would have been able to demonstrate that VE Cripps’ investigation was “vindictive”.  Mr Robinson was angered by the number of times the specified vehicle was stopped on the M4 and on each occasion there was “always something wrong”.  Whilst he could have challenged the PG9’s and the fixed penalty notices, that would have involved time and money.  He accepted that he was now aware of the “traffic light” system of grading the roadworthiness of operated vehicles but he had not accessed the relevant part of the DVSA website to learn where the specified vehicle he drove fell within the grading but he assumed that it had a marking of “red”. 

 

19.         The two PG9’s issued to the vehicle were for trivial defects.  The “D” marked PG9 issued on 17 March 2010 was for excessive movement in the steering joint and a driving prohibition was placed upon it until such time as it was removed by a full inspection (an MOT).  Mr Robinson was particularly aggrieved by this as the vehicle at the time had two valid MOT certificates.  He did not see why a third was required.  He argued with the vehicle examiner (VE Knowles) and it was eventually agreed that the prohibition would be lifted once the maintenance contractor had contacted VE Knowles to tell him that the defect had been repaired.  Mr Robinson considered that the initial requirement for a further MOT test demonstrated the vindictive attitude of the DVSA towards the licence.  Upon further discussion, he did accept that the compromise reached could be seen to demonstrate that VE Knowles was being pro-active and reasonable in his approach to this serious defect.

 

20.         The second PG9 dated 13 November 2012 related to a direction indicator which was described as inoperative when there was nothing wrong with it.  The prohibition was issued at 11.16 and was lifted at 11.19.  Mr Robinson argued that in the circumstances, neither of these prohibitions should have been taken into account by the DTC.

 

21.         Mr Robinson was further aggrieved by the issuing of the fixed penalty notices on 21 September 2012 (incorrect use of mode switch and dangerous use).  The former was trivial in that it related to his failure to change the mode switch from one driver to the other when his daughter was assisting him and the latter fixed penalty notice should not have been issued at all as it related to the use of a bed in the cab of the vehicle which doubled up as a seat.  The prohibition related to the bed being used without a seat belt when the vehicle’s age meant that no seat belt was required.  Mr Robinson had not challenged either of these fixed penalty notices because of the time and costs involved in such an exercise.  It was easier to pay the penalties and put the whole incident down to experience.

 

22.         Mr Robinson advised the Tribunal that the specified vehicle had been disposed of since the investigation had taken place and had not been replaced because of the recession.  The business was concentrating on internal removals within companies.  He considered that his disqualification was unfair and in the alternative, that it should be for a shorter period.

 

23.         We are satisfied that during the course VE Cripps’ investigation, Mr Robinson failed to demonstrate at all that he was discharging his responsibilities as a Transport Manager.  He failed to produce any documents on the day of the investigation which in the ordinary course of events, should have been available to him if he was discharging his responsibilities, particularly when Mr Robinson had been spoken to on 8 May 2013 and advised to have the documentation available for the following day.  He then failed to produce the documentation as part of a response to the PG13G document which he signed on 9 May 2014.  Then having been refused an adjournment of the public inquiry, he further failed to produce the documentation (financial and otherwise) as required by the call up letter to the operator.  The DTC was correct in her finding that the evidence of VE Cripps remained unchallenged without even written representations from Timothy and Stuart Robinson which might have assisted the DTC in coming to her conclusions.

 

24.         We are further satisfied that the Traffic Commissioner’s refusals to adjourn the public inquiry were plainly right.  Neither Timothy or Stuart Robinson made any attempt to provide the Traffic Commissioner with evidence which was capable of causing him to agree to the adjournment requests.  In the ordinary course of events, operators and Transport Managers volunteer evidence to the Traffic Commissioner.  It was or should have been clear to the Robinsons’ that documentary evidence at the very least was required.  It is not for the Traffic Commissioner to require such evidence to be produced.  We agree with the DTC’s finding that the requests for the adjournment against the background of a wholesale failure to demonstrate compliance, was a cynical and deliberate attempt to delay the date of the public inquiry. Further, Mr Robinson’s correspondence demonstrates an arrogant and wilful disregard of the functions of the regulatory system and further demonstrates an attitude that is not acceptable in a regulated industry which is largely based on trust.

 

25.         It was inevitable that adverse findings would be made under s.26 of the Act and in the absence of any input from the Robinsons’, revocation was the only available and proportionate action to be taken in the circumstances.  There is no place in the transport industry for such an operator.  Further, as a result of the failure to provide any evidence of financial standing, irrespective of the issue of whether an adjournment should have been granted, also meant that it was inevitable that the licence would be revoked under s.27 of the Act. 

 

26.         There can be no question that loss of repute by Timothy and Stuart Robinson was not an appropriate finding and it was therefore inevitable that Mr Robinson would be disqualified.  Bearing in mind his attitude towards compliance and his attitude towards DVSA officers, we are satisfied that a disqualification for an indefinite period was the appropriate order to make.  It will be for Mr Robinson to take time to reflect upon his conduct and to undertake some refresher courses to remind himself of his obligations and responsibilities as a Transport Manager.  He may then be able to persuade the Traffic Commissioner that the disqualification should be reduced or removed.

 

27.         We are satisfied that the DTC’s findings cannot be faulted and we cannot find that either the law or the facts of this case impel us to come to a different view to that of the DTC as per the test in Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport (2010) EWCA Civ 695.

 

28.         The appeal is dismissed.

 

29.         Postscript: we were concerned by what appears to be an unnecessary and undue delay between the maintenance investigation undertaken on 9 May 2013 by VE Cripps and the submission of his public inquiry statement on 20 August 2014.  There is nothing before us to give any indication as to why such a delay occurred.  Steps should be taken to ensure that such long delays, which may undermine the integrity of the regulatory process, do not occur in the future.

 

 

 

 

Her Honour Judge J Beech

30 March 2015