Neutral Citation Number: [2015] UKUT 280 (AAC) Appeal No.  T/2014/82

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of John Baker DEPUTY TRAFFIC COMMISSIONER for London and the South East of England

Dated 17 November 2014

 

 

 

Before:

Kenneth Mullan Judge of the Upper Tribunal

Mr S. James Member of the Upper Tribunal

Mr A. Guest Member of the Upper Tribunal

 

 

Appellant:

Cowan Plant Limited and Fiona Heather Macleod

 

 

 

 

Attendances:

For the Appellant: Mr T. Nesbitt

 

 

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

Date of hearing: 16 March 2015

Date of decision: 21 May 2015

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED and the Deputy Traffic Commissioner’s Order will take effect at 23.59 hours on 18 June 2015.

 

SUBJECT MATTER:- Contravention of condition, conviction, fixed-penalty notice, undertaking, revocation, disqualification

 

 

CASES REFERRED TO:- Warstone Motors Limited T/A The Green Bus Service ([2009] UKUT 216 (AAC))

 

 

REASONS FOR DECISION

 

The decision under appeal to the Upper Tribunal

1.         This is an appeal from the decision of the Deputy Traffic Commissioner for London and the South East of England dated 17 November 2014.

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 international goods vehicle licence granted on 10 March 2006 with an authorisation for 8 vehicles and 6 in possession. The Directors of the company are Donald MacLeod and Charles Cowan. The Transport Manager is Fiona MacLeod who is the wife of Donald Macleod.

(ii)              On 28 August 2013 the Appellant was called to a Public Inquiry before the Deputy Traffic Commissioner. The Deputy Traffic Commissioner found that there had been a breach of section 26(1)(c)(ca)(e) and (f) of the Goods Vehicles (Licensing of Operators) Act 1995 (‘the 1995 Act’). The Deputy Traffic Commissioner ordered a curtailment of the authorisation to 4 vehicles for 21 days which was to be implemented and completed by 31 October 2013. The Deputy Traffic Commissioner also accepted an undertaking that an audit of the transport operation would be carried out no earlier than 4 months and no later than 6 months after the Inquiry. The initial audit was not carried out in a manner which the Deputy Traffic Commissioner found to be satisfactory. A further audit was undertaken on 1 April 2014 which the Deputy Traffic Commissioner approved and, consequently, he removed the undertaking from the licence.

(iii)             On 2 December 2013 one of the licence authorised vehicles was stopped and it was revealed that the MOT on the trailer had expired on 31 March 2009. A Traffic Examiner interviewed Mr Macleod on 5 Narch 2014. A summary of that interview is to be found at paragraph 2 of the decision of the Deputy Traffic Commissioner. As a result of the use of the trailer without a test certificate the company was prosecuted and fined £500 with costs of £307.

(iv)            An application to vary the licence by increasing the authorisation to 12 vehicles was submitted on 12 April 2014. A decision was made that this application was to be dealt with by way of a preliminary hearing. When it transpired that prohibitions had been issued to certain of the operator’s vehicles on 2 December 2013, 7 May 2014 and 20 June 2014, a decision was made to call the Appellant to a Public Inquiry. The prohibition issued on 7 May 2014 was ‘s’ marked indicating a significant failure of the maintenance systems in place.

(v)             The Deputy Traffic Commissioner has noted that two further prohibitions were issued on 18 September 2014 in respect of different vehicles after the date when the ‘call-up’ letter to the Public Inquiry had been issued. When one of the vehicles was stopped on 18 September 2014 it was being driven by a driver who had no authorisation to drive that type of vehicle, his authorisation having expired and not been renewed. It was also discovered that the relevant vehicle had not been specified on the operator’s licence for Cowan Plant Limited.

(vi)            A summary of the statement evidence submitted in connection with the second Public Inquiry is set out by the Deputy Traffic Commissioner at paragraph 6 of his written decision. A summary of the oral evidence is set out at paragraph 7.

3.         On 17 November 2014 the Deputy Traffic Commissioner made a decision to the following effect:

‘(a) Breaches of Section 26(1)(b)(c)(ca) and (f) of the Goods Vehicles (Licensing of Operators) Act 1995 found.

(b) As a consequence of these breaches and the previous history of the licence the operator’s licence is lost and the licence is revoked in accordance with Section 27(1)(a) of the Goods Vehicles (Licensing of Operators) Act 1995. The application for variation of licence is refused.

(c) The repute of the Transport Manager Fiona Macleod is lost and she is disqualified indefinitely from acting as a Transport Manager.

(d) In order to regain her repute Fiona Macleod must demonstrate that she has brought herself fully up to date in relation to the role of a Transport Manager and that she has systems in place so as to ensure a fully compliant operation.

(e) The order of revocation of the licence and the disqualification of Fiona Macleod to take effect from 1 January 2015.

4.         The Appellant was notified of the decision of 17 November 2014 by way of correspondence dated 18 November 2014.

The application for a stay

5.         By way of correspondence dated 17 December 2014 an application was made for a stay of the decision of the Deputy Traffic Commissioner.

6.         On 19 December 2014 the application for a stay was granted by the Deputy Traffic Commissioner.

The appeal to the Upper Tribunal

7.         On 15 December 2014 an appeal to the Upper Tribunal was received in the office of the Upper Tribunal.

8.         The Appellant has set out the following Grounds of Appeal:

(i)            In dealing with the regulatory failings of the Appellant company, the Deputy Traffic Commissioner failed to take sufficient account of the circumstances in which the failings arose and/or failed to undertake sufficient analysis of the culpability that properly attached to the operator. More specifically, it was submitted that while an employer operator could not be wholly absolved from fault, the circumstances of the prohibitions involved errors on the part of drivers who were appropriately disciplined. Before the ultimate sanction of revocation was imposed, the degree of culpability that could properly be attached to the operator needed to be undertaken. That which was undertaken was insufficient.

(ii)           The Deputy Traffic Commissioner erred in law in undertaking the balancing exercise, failing to weigh matters going to the Appellant operator’s credit in the balance sufficiently carefully. More particularly, it was submitted that prior to the first Public Inquiry in 2013 the Appellant operator had operated substantially compliantly for a number of years. Insufficient weight was given to this factor when assessing the “Priority Freight” question.

(iii)          The Deputy Traffic Commissioner erred in law in revoking the licence when it was disproportionate to do so. It was submitted that while it was acknowledged that the failings that were the subject of the inquiry warranted significant regulatory action, in light of the positive features of the case action taken on this occasion should have stopped short of revocation.

(iv)         In relation to the Second Appellant, in making the decision to find a loss of repute and order disqualification, the Deputy Traffic Commissioner failed to undertake a sufficiently careful balancing exercise and, in so doing, failed to take account of evidence of a medical condition which she had.

(v)          The Deputy Traffic Commissioner erred in law in deciding to disqualify the Second Appellant indefinitely when in all of the circumstances of the case, and her situation, it was disproportionate to do so.

9.         Before the oral hearing in the Upper Tribunal, Mr Nesbitt submitted a Skeleton Argument on behalf of both Appellants. Mr Nesbitt set out the relevant factual background, summarised the evidence adduced at the Public Inquiry and set out the decision of the Deputy Traffic Commissioner.

10.      Mr Nesbitt expanded on the grounds of appeal, as follows. He submitted that a decision by a Traffic Commissioner to revoke an operator’s licence had to be at the serious end of regulatory decision-making as the effect of such a decision was to put an end to the livelihoods of many people. Because of that, it was essential that a Traffic Commissioner should take care in ‘… analysing the seriousness of non-compliance and the culpability properly attaching to it, and, as part of the balancing exercise, the positive features of the operator’s history and performance.’ Mr Nesbitt set out what he submitted were the positive features in the case. He asserted that the Deputy Traffic Commissioner dealt with the positive features in two sentences in his ‘Findings and Decision’ and, submitted the careful balancing exercise required a reference to a greater number of the positive features of the case and according a greater credit for them. Mr Nesbitt submitted that ‘… by failing to recognise and give sufficient credit for those matters the Deputy Commissioner fell into error.’

11.      Mr Nesbitt submitted that the conclusion which the Deputy Traffic Commissioner arrived at in paragraph 15 of his decision amounted to a ‘… general characterisation of the operator’s performance without looking with sufficient care exactly what culpable default the recent history demonstrated.’ He asserted that while the more recent compliance issues showed carelessness and warranted criticism, they did not warrant the general characterisation of the operator in paragraph 15 of the decision of the Deputy Traffic Commissioner without a more detailed explanation of why such a description was justified.

12.      Mr Nesbitt submitted that, overall, the decision to revoke the licence was too harsh. Although there had been a number of individual failings, which were regrettable in themselves, the operator’s trajectory was one of improvement and the systems and procedures were broadly satisfactory. While a serious sanction was required, the more appropriate one was a significant curtailment rather than the ultimate sanction of revocation. Set against the positive and mitigating features of the case, the sanction of revocation was too harsh.

13.      Finally, Mr Nesbitt expanded on the grounds of appeal in connection with the Second Appellant. He submitted that the arguments which had been put forward in connection with the operator company applied equally to her position. Further, he submitted that the decision did not undertake any or sufficient balancing exercise in relation to her personal position, ‘… including failing to give any regard to the consequences of the medical condition she had which appeared to be occupying a lot of her time.’ He submitted that against that background the decision to disqualify her indefinitely was too harsh.

14.      At the oral hearing of the appeal Mr Nesbitt added to the written grounds of appeal and expanded on the submissions made in his Skeleton Argument. He began by summarising three separate periods of time as part of a chronology of events. The first of these periods was from the date of the grant of the licence through to the date of the first ‘negative compliance event’ on 19 January 2012. Mr Nesbitt submitted that during this period it could be assumed that this was not a ‘seriously non-compliant’ organisation. The second period was from the date of the fleet inspection, on 19 January 2012, to the date of the first Public Inquiry on 28 August 2013. During this period there had been three negative compliance events. Mr Nesbitt conceded that the Deputy Traffic Commissioner, in his decision dated 10 September 2013, did not have the ‘best impression’ of the operator company. The third relevant period was from August 2013 to the date of the second Public Inquiry in November 2014. Mr Nesbitt summarised the main events which took place during this period.

15.      Mr Nesbitt repeated the submissions which he had made in his Skeleton Argument concerning the requirement to take care in the conduct of the balancing exercise. He reiterated his assertions concerning the manner in which the Deputy Traffic Commissioner addressed the positive features in the case, limiting himself to a brief mention of two of these and omitting others. He submitted that a reading of the decision would not reveal that there had been positive assessments. Further no fault had been found with systems and procedures. The first Public Inquiry and the decision which had resulted from it had involved a fuller assessment and balancing of the positive and negative features.

16.      Mr Nesbitt submitted a copy of Annex 3 to the Senior Traffic Commissioner’s Statutory Document No.10 ‘The Principles of Decision Making & the Concept of Proportionality’. Mr Nesbitt submitted that many of the ‘Balancing Features’ set out in the Annex were relevant in the instant case. He submitted that a ‘not inappropriate’ sanction was an order of significant curtailment.

17.      Finally Mr Nesbitt reiterated the submissions which had been made in the Skeleton Argument concerning the Second Appellant and, at our invitation, made additional submissions on an appropriate period to permit an orderly winding-up of the business should we determine that the decision of the Deputy Traffic Commissioner was correct and that the appeal should be disallowed.

The reasoning of the Deputy Traffic Commissioner

18.      The reasoning of the Deputy Traffic Commissioner was set out under the heading ‘Findings and Decision’ at paragraphs 11 to 17, as follows:

‘… In deciding what action to take as a consequence I have referred to my written decision following the public enquiry on 28 August 2013 and in particular paragraphs 11 iv) and 12 which state as follows:

Mr MacLeod on behalf of the company, and Mrs McLeod as Transport Manager gave me the impression at the enquiry that they were not fully appreciative of the seriousness of the situation and I found difficulty in reassuring myself that they had the necessary real determination to achieve full compliance and maintain improvements made. Both of them, and in particular Mr MacLeod answered my questions in a manner which was hesitant and sometimes bordered on resentful.

Having balanced all the factors in this case I have asked myself whether I can be confident I can trust this operator to be compliant in the future. Because of the issues that emerged at the inquiry and my findings in relation to the individuals involved I have struggled to answer this question positively. However bearing in mind the positive steps that have been taken and the comparatively good previous history I am prepared to allow the licence to continue and to give the operator a chance to prove that they can operate in a fully compliant way. They should be in no doubt however that they have come close to revocation, that the repute of the company and of the Transport manager is tarnished and that the content of this decision will be considered if there is an inquiry in the future.

12. It is clear to me from these paragraphs and should have been abundantly clear to the operator that they had come very close to revocation at the last inquiry and that they were being given a chance to improve and demonstrate an ability to comply. Whilst I accept that there have been improvements in relation to tachograph records I note that the marking from Traffic Examiner Kaylan was "mostly satisfactory” as opposed to "satisfactory”. I also accept that the MOT pass rate has improved of late but this is set against the background of the level being below the national average.

13. Whilst the limited improvements are acknowledged there is also a catalogue of non-compliance since the last inquiry including the use of a vehicle on 7 May 2014 with defective tyres, inadequate mirrors and a seatbelt deliberately disabled from use. The number and range of defaults led me to the conclusion that the operator did not learn sufficiently from the previous inquiry and I have to ask myself if this will change now. I do not find the explanation of "driver error" acceptable. If the drivers are not completing tasks properly leading to non-compliance it is ultimately the operator who takes responsibility.

14. I have noted the proposed undertakings and actions taken to date but have concluded that if the operator had been really committed to a regime of compliance then proactive measures would have been taken rather than waiting for an inquiry to prompt them. It is noteworthy that even in the period leading up to the present inquiry the events of 18 September 2014 occurred.

15. I have asked myself the question as set out in the case of Priority Freight Limited & Paul Williams i.e. how likely is it that this operator will operate in compliance with the operator's licensing regime? In answer my finding is that it is unlikely based on the outcome of the previous inquiry and what has happened since. I am prepared to accept that the default is more omission than deliberate commission but even so the level of default and the frequency demonstrates a high degree of culpable negligence and ineffectiveness. Having concluded that future compliance is unlikely I have asked myself the ‘Bryan Haulage’ question i.e. does this operator deserve to be put out of business and my conclusion is yes. I considered all the factors carefully and do not reach this conclusion easily or lightly. I am aware of the consequences for the company and their employees but nevertheless believe that revocation is the appropriate course of action in this case. For the sake of completeness I confirm that the application for variation of licence is refused.

 

16. As regards Mrs McLeod I find that she has lost her repute as a Transport Manager. I do not believe she exercised the necessary level of management and control over the transport operation and the consequences are set out above. It follows from loss of repute that I must also disqualify her from acting as a Transport Manager either for a fixed period or indefinitely. In all the circumstances I have decided that there should be an indefinite period of disqualification in this case. If Mrs McLeod decides to apply to become a Transport Manager in the future it will be essential that she demonstrates that she has brought herself fully up to date in relation to the role of a Transport Manager and that she has systems in place so as to ensure a fully compliant operation.

17. As far as Mr MacLeod is concerned I have decided not to order a period of disqualification but nevertheless he should be in no doubt that if he applies for a licence again, either as an individual or a director, he should expect to be able to demonstrate a much improved approach with robust effective systems of transport management and a transport manager who will enforce them.’

Our analysis

19.      We have no hesitation in upholding the decisions of the Deputy Traffic Commissioner.

 

20.      In NT/2013/52 & 53 Fergal Hughes v DOENI & Perry McKee Homes Ltd v DOENI, the Upper Tribunal said the following, at paragraph 8 of its decision, on the proper approach on appeal to the Upper Tribunal:

‘There is a right of appeal to the Upper Tribunal against decisions by the Head of the TRU in the circumstances set out in s. 35 of the 2010 Act.  Leave to appeal is not required.  At the hearing of an appeal the Tribunal is entitled to hear and determine matters of both fact and law.  However it is important to remember that the appeal is not the equivalent of a Crown Court hearing an appeal against conviction from a Magistrates Court, where the case, effectively, begins all over again.  Instead an appeal hearing will take the form of a review of the material placed before the Head of the TRU, together with a transcript of any public inquiry, which has taken place.  For a detailed explanation of the role of the Tribunal when hearing this type of appeal see paragraphs 34-40 of the decision of the Court of Appeal (Civil Division) in Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport [2010] EWCA Civ 695.  Two other points emerge from these paragraphs.  First, the Appellant assumes the burden of showing that the decision under appeal is wrong.  Second, in order to succeed the Appellant must show that: “the process of reasoning and the application of the relevant law require the Tribunal to adopt a different view”.  The Tribunal sometimes uses the expression “plainly wrong” as a shorthand description of this test.’

21.      The Upper Tribunal In NT/2013/52 & 53 Fergal Hughes v DOENI & Perry McKee Homes Ltd v DOENI was considering an appeal to the Upper Tribunal against a decision of the Head of the Traffic Regulation Unit under the Goods Vehicles (Licensing of Operators) Act (Northern Ireland) 2010. There is no doubt, however, that the principles set out by the Upper Tribunal in paragraph 8, are derived from parallel appeals, such as the one in the instant case, where the appeal is against a decision of a Traffic Commissioner under the Goods Vehicles (Licensing of Operators) Act 1995 and Regulations made under that Act – see paragraph 4 of NT/2013/52 & 53 Fergal Hughes v DOENI & Perry McKee Homes Ltd v DOENI.

22.      We have not been satisfied that on the basis of the submissions which have been made by the appellant that it could be said that the decision of the Traffic Commissioner in the instant case was ‘plainly wrong’.

23.      Mr Nesbitt submits that there were several evident positive features in the case which were omitted by the Deputy Traffic Commissioner in his analysis and, more crucially, in the critical balancing exercise. With respect to the submission made by Mr Nesbitt, we do not accept it. We do not agree that the features identified by Mr Nesbitt are as positive as he asserts.

24.      Mr Nesbitt refers to:

(i)            a trajectory of significant improvement in relation to drivers’ hours issues to a position of broad compliance;

(ii)           repeated expert assessment of the systems and procedures in place in relation to both maintenance and traffic issues as satisfactory in most respects;

(iii)          an MOT pass rate that was at the time of the inquiry (arguably comfortably) above the national average;

(iv)         various remedial measures which included seeking outside assistance, disciplining drivers, and the “signing up” to a driver licence checking service called Advance Check.

25.      In his reasoning the Deputy Traffic Commissioner, at paragraph 12 of his decision, makes reference to ‘improvements in relation to tachograph records’ and an improvement of the MOT pass rate. It cannot be said, therefore, that the Deputy Traffic Commissioner ignored these features. What the Deputy Traffic Commissioner did do was to set it into the context of the other compliance features evident in the case. We have noted the results of the Traffic Examiner investigation which took place in December 2012, some two years prior to the decision under appeal. That examination revealed the detection of sixteen offences following an examination of one hundred and sixty eight charts. A ‘stop’ in November 2012 had revealed a brake defect and resulted in the successful prosecution of the driver for four separate offences including exceeding hours and insufficient daily and weekly rest. Following the issue of an ‘s’ marked prohibition notice, a fleet inspection was carried out in February 2013 which revealed a roadside prohibition rate of 63% and an annual test fail rate at 33%.

26.      Following the first Public Inquiry, the Deputy Traffic Commissioner issued his decision dated 10 September 2013. In that decision, the Deputy Traffic Commissioner did recognise that the operator company had engaged the services of a transport consultant with a view to undertaking better analysis of drivers’ hours and tachograph compliance and the provision of advice. He also recognised that the compliance history had, until January 2012, been good and that certain training had been undertaken and new handbooks been introduced. Against that  improvements which had been sought had not been introduced, that Mr Macleod had committed more tachograph offences than other drivers, that the ‘walk around’ procedures were problematic and that Mr and Mrs Macleod did not appear to understand the seriousness of the situation.

27.      In our view the message which was sent to the First and Second Appellants through the results of the first Public Inquiry and the decision of the Deputy Traffic Commissioner dated 10 September 2013 could not have been clearer and the implications for their future conduct more obvious. The Deputy Traffic Commissioner informed them that he had found that there were breaches of the 1995 Act. They were told that they were being given a chance to prove that the company could be operated in a fully compliant manner. Most significantly, they were notified that the Deputy Traffic Commissioner had come close to revoking the operator’s licence and that the repute of the company and the Transport Manager had been tarnished.

28.      The consequences for the future could not have been starker. In addition to the curtailment action which was ordered and the undertakings which were sought, the Appellants were informed that the content of the decision dated 10 September 2013 would be considered if there was any further inquiry in the future.

29.      What was the reaction of the Appellants to the decision dated 10 September 2013? Following a stop on 2 December 2013, the company was prosecuted for the offence of having no goods vehicle test certificate in force and was fined. A Traffic Examiner visited the company’s premises on 5 March 2014 to obtain an explanation for the background to the offence and, in addition, carried out a check on the company’s tachograph and drivers’ hours systems. The report of the examination is set out at pages 38 to 41 of the bundle of documents relating to the appeal. The Traffic Examiner recorded scores for 18 different areas recording scores of 1 for 13 of those areas and scores of 2 for the remaining 5. The Traffic Examiner recorded an overall total of ‘MS’ standing for ‘Mostly Satisfactory’. We have noted that three of the areas where the awarded score was 2 related to the ‘Monitoring Systems for Drivers’ and that one further award of a score of 2 would have resulted in an overall total of ‘Unsatisfactory’.

30.      An audit was carried out in February 2014 but was clearly unsatisfactory. A reading of the audit report, a copy of which was included in the bundle of documents at pages 85 to 87, shows why it was deemed to be unsatisfactory. A further audit report was completed on 1 April 2014 which resulted in the undertaking to complete such a report being removed.

31.      On 7 May 2014, an ‘s’ marked prohibition was issued to one of the operator’s vehicles indicating a significant failure in the maintenance system in place. A further prohibition took place on 20 June 2014. Even after the call-up letter for the second Public Inquiry had been issued, two further prohibitions in respect of different vehicles belonging to the operator company were issued on 18 September 2014. In connection with one of these vehicles, it transpired that the driver did not have an entitlement to drive a vehicle of that class, the previous entitlement having expired and not been renewed. In addition, the relevant vehicle was not specified on the operator’s licence for the First Appellant.

32.      It seems to us, therefore, that while appropriate credit had to be given for the improvements in relation to tachograph records and in the MOT pass rate, the Deputy Traffic Commissioner was correct to place that in the context of a report from a Traffic Examiner who gave an overall score of ‘Mostly Satisfactory’ and lower individual scores in areas associated with monitoring systems for drivers. In addition, the Deputy Traffic Commissioner was correct to place the evident positive features in the context of the compliance record since the date of the first Public Inquiry. As was noted above, the First and Second appellants could not have been given a clearer message following the events leading to and outcome of the first Public Inquiry. That message was that the reason for the Public Inquiry was that there were compliance and regulatory issues; that the Deputy Traffic Commissioner had come close to revoking the First appellant’s operator’s licence and that the repute of the company and the Transport Manager had been tarnished. The consequences for the future were equally evident. We consider that the Deputy Traffic Commissioner in the instant case was correct to take into account the decision of 10 September 2013 and the evidential basis for that decision.

33.      The conduct of the First and Second Appellants since the decision of the 10 September 2013 demonstrates, at a minimum, an ambivalence to the guidance given within that decision and the potential consequences of a failure to address the issues which arose. The chronology of events set out above, summarising compliance failures in the period since 10 September 2013, are evidence of a disregard for that decision. The reaction of the first Appellant to seek a variation in the licence to increase the authorisation to twelve vehicles was made at a time when there was evidence of system deficiencies. Even after the call-up letter for the second Public Inquiry had been issued, two further prohibitions in respect of different vehicles belonging to the operator company were issued on 18 September 2014.

34.      Mr Nesbitt has characterised the most recent compliance issues as ‘… particular paperwork issues which had specific explanations, or driver error that had been dealt with by disciplinary measures.’ Others were based on placing too much trust in others or misunderstanding the operation of the law. He conceded that they demonstrated carelessness on the part of the First and Second Appellants. With respect to Mr Nesbitt the clear message to the First and Second appellants were caution and attention to detail, rather than carelessness. The default might have been by omission rather commission but the inattentiveness was clear.

35.      Accordingly, we are satisfied that the Deputy Traffic Commissioner took the proper approach to the balancing exercise. Further, we are satisfied that the Deputy Traffic Commissioner, based on the evidence which was before him, was entitled to arrive at the conclusions which he did in paragraph 15 of his decision when he described the level and frequency of default as demonstrating ‘ a high degree of culpable negligence and ineffectiveness.’ We cannot agree that the decision of the Deputy Traffic Commissioner is in error of law on the basis of these submitted grounds.

36.      Mr Nesbitt has submitted that the sanction of revocation of the operator’s licence and the disqualification of the Second Appellant from acting as a Transport manager was too harsh. As was noted above, in support of that submission he referred to Annex 3 to the Senior Traffic Commissioner’s Statutory Document No.10 ‘The Principles of Decision Making & the Concept of Proportionality’. With respect to the submission made by Mr Nesbitt we cannot accept it.

37.      Looking at Annex 3 the sanction of ‘Revocation with consideration (or detailed consideration) of disqualification’ is thought to be an appropriate form of sanction where infringements are in the ‘serious’ or ‘severe’ categories. The ‘Regulatory Starting Point’ for a ‘Serious to Moderate’ regulatory starting point is ‘Long history of maintenance non-compliance with evidence that maintenance standards are improving and will continue to improve after the public inquiry’. It is arguable that the instant case falls at the ‘serious’ end of that starting point. The ‘Regulatory Starting Point’ for a ‘Severe to Moderate’ regulatory starting point is ‘Long history of maintenance non-compliance with little or no sign of improvement at the time of the public inquiry’. Once again, it is arguable that the instant case falls at the ‘serious’ end of that starting point.

38.      We are also reminded of the decision of the Upper Tribunal in Warstone Motors Limited T/A The Green Bus Service ([2009] UKUT 216 (AAC)). In that case the Upper Tribunal determined that:

‘Revocation is not disproportionate where, in the absence of any objective justification and excuse, there have been long term, sustained, repetitive deficiencies.

The decision of the Deputy Commissioner is not in error of law on the basis of this submitted ground.

39.      We turn to the specific position of the Second Appellant. As was noted above, Mr Nesbitt advanced the same arguments in connection with her appeal as had been advanced in relation to the First Appellant. For the reasons which we have set out above, we have rejected the arguments advanced in relation to the First Appellant and do so in connection to the Second Appellant. Further, he submitted that the decision did not undertake any or sufficient balancing exercise in relation to her personal position, ‘… including failing to give any regard to the consequences of the medical condition she had which appeared to be occupying a lot of her time.’  

40.      The Second Appellant gave evidence during the course of the second Public Inquiry. The transcript of the proceedings of the Public Inquiry is at pages 120 to 156 of the bundle of the documents which was before the Upper Tribunal. At page 150 there is a record of an interchange between the Deputy Traffic Commissioner and the Second Appellant. The Second Appellant indicates that her medical condition would not stop her from being present as much as might otherwise be; that she attended quite a few hospital appointments and, accordingly, might not be in the office at nine o’clock in the morning; that on the days when she had a hospital appointment she did not leave at four or five but stayed on until she had to finish; and that she had postponed a hospital appointment to be at the Public Inquiry which demonstrated her commitment to the operator’s licence and the business. The interchange ended with the Second Appellant stating:

‘But the medical condition I’ve got does, I hope, in no way jeopardise my ability to do what I do.’

 

41.      We note, in addition, that no additional documentary evidence was submitted in connection with the Second Appellant’s medical condition. Without wishing to underplay the Second Appellant’s medical condition, based on her statements to the Deputy Traffic Commissioner at the second Public Inquiry, we are of the view that the Deputy Traffic Commissioner did place the significance of her medical condition in the proper context. The decision is not in error of law on the basis of this submitted ground.

 

 

 

 

 

 

 

 

 

 

 

 

Disposal

 

42.      The decision of the Deputy Traffic Commissioner dated 17 November 2014 is confirmed in all respects save as follows:

 

After canvassing with Mr Nesbitt an appropriate time for an orderly winding-up of the business, we direct that the orders of the Deputy Traffic Commissioner shall come into effect at 23.59 hours on 18 June 2015.

 

 

[image removed]

 

 

Kenneth Mullan, Judge of the Upper Tribunal,

21 May 2015