Neutral Citation Number: [2015] UKUT 296 (AAC)

Appeal No.  T/2015/09

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

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

Dated 9 December 2014

 

 

 

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:

RICHARD and SYLVIA JONES t/a ACORN SKIP HIRE

 

 

 

 

Attendances:

For the Appellant: Stephen Ashby, Transport Consultant.

 

 

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

Date of hearing: 8 April 2015

Date of decision: 29 May 2015

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED.

 

 

 

 

 

 

 

 

 

SUBJECT MATTER:-   Good Repute; Professional Competence; Material Change in circumstances, change of entity by operator; Disqualification.

 

 

CASES REFERRED TO:-

 

 

 

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 operator’s licence held by the Appellant, to disqualify Richard Jones, (“RJ”), from holding or obtaining an operator’s licence for three years and to disqualify RJ from acting as a Transport Manager indefinitely.

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 Goods Vehicle operator’s licence authorising 4 vehicles.  At the material time it had three vehicles in possession.

(ii)              The licence was held by RJ and his mother, Sylvia Jones, who were in partnership.  RJ was the designated Transport Manager.

(iii)             The five yearly renewal of the licence took place in 2012.  The cheque sent to pay the renewal fee was drawn on an account held by Acorn Skips Ltd.  When this was queried RJ said that there were two entities a Limited Company and a Partnership.  He said that the partnership operated 2 vehicles while the Limited Company operated a Waste Transfer Station and used a third party to transport waste.  RJ explained that the use of a cheque drawn on the Limited Company’s account was a genuine mistake.  His explanation was accepted.

(iv)            On 29 July 2014 a Traffic Examiner saw a 32 tonne IVECO roll on roll off Tipper, registration number W10 PFA parked on a public road known as Rob Pascoe Lane. It was loaded with wood but it did not display either an Operator’s licence disc or a valid Tax disc.  The Traffic Examiner checked the DVSA database and found that the vehicle was not listed on any operator’s licence.  In addition it was found that the vehicle had no current Goods Vehicle Test Certificate.  The driver of the vehicle was not present.

(v)             On 31 July 2014 the same vehicle was encountered at a roadside check.  On that occasion the driver was RJ who said that he owned the vehicle.  When interviewed under caution he said that he was a ‘sole trader’.  Once again no operator’s licence disc was displayed, the vehicle was not specified on any operator’s licence, the Tax disc displayed had expired and there was no Test Certificate in force.  RJ was asked to produce his tachograph charts and his digital tachograph and CPC cards if he had been issued with them.  RJ replied that he had not been issued with a digital tachograph card, he had not passed his driver CPC and he was not using an analogue chart.  He added that his previous tachograph charts were at his yard not with him.  Further inquiries revealed that the Registered Keeper of this vehicle was the Appellant partnership.  RJ said that he was on his way from his yard to Manns Waste Management Ltd to meet a fitter.  RJ confirmed that no valid Tax disc or Test Certificate were in force for the vehicle and inquiries revealed that the vehicle was the subject of a SORN declaration, (Statutory Off Road Notification).  When RJ was asked about the sighting of the vehicle on 29 July he replied that: “it had been moved to get it out of the way while it was not being used”.  He was unable to produce a tachograph chart for this movement, although the use of an analogue tachograph chart was required in the vehicle.  He said that it was used as a ‘shunter’ in the yard.  The vehicle was issued with an Immediate ‘S’ marked Prohibition notice and RJ was reported for possible prosecution.  The ‘S’ marked prohibition was issued because: (i) a lamp lens was insecure and liable to imminent detachment and (ii) the fuel tank was insecure and liable to imminent detachment.  In the case of the fuel tank this was because 50% of the straps had fractured.  A check at the DVLA showed that RJ’s Class C entitlement had expired on 24 February 2013.  It has since been renewed.

(vi)            On 31 July 2014 RJ was issued with a letter requiring him to produce analogue tachograph charts for the period 1 June 2014 to 30 June 2014, for all vehicles, by 10 August 2014.  In addition other information was required, including any disciplinary action taken against drivers in the previous 6 months.

(vii)           On 11 August 2014 the Traffic Examiner tried, unsuccessfully, to contact RJ to discover why nothing had been provided.  She visited the operating centre but the gate was locked.  Outside the operating centre was a vehicle loaded with a skip.  The registration number was DK05 DHD.  It displayed an operator’s licence disc, which had expired on 31 October 2012.  It displayed a current Tax disc.  Later that day RJ arranged for the Traffic Examiner to visit the operating centre on the following day.

(viii)          On 12 August 2014 RJ provided the Traffic Examiner with a folder containing defect sheets and 13 analogue tachograph charts for DK05 DHD.  Examination of the charts showed significant missing mileage.  It was not possible to conduct a proper analysis of drivers’ hours.

(ix)            Further investigation showed that the three vehicles operated by the Appellant were all registered to Acorn Skips Ltd.  All three had been specified on the Appellant’s licence since 2007/2008.  Although there was a margin of one vehicle the Appellant was not entitled to operate W10 PFA under the margin on 31 July 2014 because it had, by then, been in the Appellant’s lawful possession for more than 28 days without being specified on the licence.

(x)             On 9 October 2014 a Vehicle Examiner carried out a fleet inspection, which was prompted by the issue of the ‘S’ marked prohibition on 31 July 2014.  The Vehicle Examiner was met by RJ who told him that one of the two vehicles in the yard was only used to move containers in the yard, while the other, DK05 DHD, had developed a fault and would not start, which meant that the Vehicle Examiner could not carry out a full inspection.  The inspection was unsatisfactory for a number of reasons: (i) PMI records were missing or not fully completed, (ii) no effective forward planning system for PMIs, MOTs or tachograph calibrations was in use, (iii) a written Drivers Defect reporting system was not fully used and 15 months worth of records were not produced, (iv) no maintenance contract was produced, (v) an ‘S’ marked prohibition had been issued, (vi) six other prohibitions had been issued following 14 encounters in the previous 5 years, giving a prohibition rate of 43% compared to the national average of 27% and (vii) the Appellant had failed to notify the fact that it was no longer in possession of two of the authorised vehicles.  RJ was given an opportunity to comment on the findings but did not do so.  The Vehicle Examiner had been able to consider 5 PMI sheets before the inspection.  He asked RJ if any more records were available.  RJ was able to produce some further Driver Defect Report sheets though some of them were duplicates.  None showed any defects, which the Vehicle Examiner found strange, given that the vehicles were being issued with prohibitions.  RJ was unable to produce any documents to show that the mobile mechanic used by the Appellant had carried out any repairs or inspections.  The MOT pass rate was 78%, which was below the national average.

(xi)            On 13 October 2014 Stephen Ashby of Purple Services wrote to the Office of the Traffic Commissioner, (“OTC”).  It would appear that the OTC only received the letter on 1 December 2014.  Mr Ashby explained that he had met RJ on 13 October and had been told of the problems facing the Appellant.  He went on: “It is evident that he has been wrongly advised during the last few years and has been negligent in running the business in all departments placing him and the company in a non-compliant position with reference to the operator licence and its obligations”.  He said that he had been asked to assist in getting the company back onto a firm and compliant footing.  He then set out the steps that he had advised the Appellant to take in order to achieve this objective.

(xii)           On 5 November 2014 the Traffic Commissioner called the Appellant to a Public Inquiry, which was listed for 4 December 2014.  Under the heading: ‘The Issues’ the Appellant was warned that the Traffic Commissioner was concerned about: (i) breach of the condition to notify a change in maintenance contractor, (ii) the issue of prohibitions and fixed penalty notices, (iii) that statements of intent in relation to inspection intervals and safety inspections/repair work had not been fulfilled, (iv) that undertakings given on the application for the operator’s licence had not been honoured, (v) that there had been a material change in circumstances in that the operator of the vehicles was no longer a partnership, (vi) that as a result the Appellant might no longer be of good repute, of appropriate financial standing or professionally competent and (vii) that the nominated transport manager might not be exercising continuous and effective management of the transport activities of the undertaking.  Copies of the reports to be considered at the Public Inquiry were provided with the letter.  The letter went on to explain the extent of the Traffic Commissioner’s powers, including a warning about the power to disqualify an operator and/or transport manager.  The letter ended with detailed advice to the Appellant as to the evidence, which should be collected on behalf of the Appellant, for production at the Public Inquiry.

(xiii)          In November 2014 RJ pleaded guilty to the following offences: (i) No goods vehicle test certificate in force, (ii) Use of an HGV outside the period of grace, (iii) Failing to produce tachograph record sheets or driver cards or printouts at the roadside, (iv) Failing to use tachograph record sheets or a driver card, and (v) Using a vehicle when a SORN declaration had been made.  RJ was fined £500 on the first offence.  No separate penalty was imposed for the other offences.  He was ordered to pay costs of £551 and back-dated excise duty of £653.34.

(xiv)          On 26 November 2014 the Appellant signed a maintenance contract with Independent Fleet Care Ltd providing for safety inspections every 6 weeks and, with the consent of the Appellant such renewals and repairs as might be necessary.

(xv)           The Public Inquiry took place before the Traffic Commissioner on 4 December 2014.  RJ appeared for the Appellant assisted by Mr Ashby.  The Vehicle Examiner and the Traffic Examiner were both present.  RJ explained that his mother, the other partner in the Appellant, was not present because she was not in the best of health.  He added that she was now in her seventies and that he dealt with day to day matters.

(xvi)          The Traffic Commissioner then referred to the reports from the Vehicle Examiner and the Traffic Commissioner and asked RJ if there was anything that he wanted to ask either of them.  RJ replied: “I don’t think so no …”.  He was told that if anything occurred to him later he should feel free to raise it.

(xvii)         The Traffic Commissioner then turned to the events of 31 July 2014.  He asked RJ why he was driving W10 PFA on a road.  As transcribed the explanation is contradictory but RJ appears to have been saying that he understood that the part of the road on which he was driving was a private road, with the result that it was permissible for him to drive the vehicle on it notwithstanding that it was not taxed, had no MOT, was uninsured and was the subject of a SORN.  The Traffic Examiner intervened to point out that whether or not a road is private is not the test in relation to s. 192 of the Road Traffic Act 1988.  She went on to state that although partly private the road in question was a highway to which the public had access.  RJ then said that the relevant test had been explained to him and that that was why he pleaded guilty before the Magistrates Court.  The Traffic Examiner went on to explain that the public also had access to Rob Pascoe Lane where W10 PFA was parked on 29 July 2014.  In response to a question from the Traffic Commissioner RJ said that he did not have any documentary evidence as to the extent to which W10 PFA had been used on other occasions.  He added that he was unaware of the defects leading to the ‘S’ marked prohibition but then explained that the damage to the lights occurred when the vehicle was pushed with a fork lift truck.  He agreed that in hindsight he should have waited until the mobile fitter was able to come to the operating centre.

(xviii)        RJ accepted that as a professionally qualified transport manager he should have been aware that his Class C entitlement had to be renewed at the age of 45 and not at 50 as he had thought.  He agreed that having taken the exam over 10 years before he needed to “get up to speed on this”.  He added that having been put in touch with Mr Ashby he had become aware that there were courses available.  He agreed that he had not previously done anything to keep up to date.

(xix)          The Traffic Commissioner pointed out that W10 PFA was not specified on the Appellant’s operator’s licence, though it was carrying a load.  RJ replied that he had been intending to specify the vehicle but in the end decided to use it as a ‘shunter’ in the yard.  RJ was not in a position to say when the Appellant acquired W10 PFA nor could he contradict the Traffic Commissioner who suggested that it was December 2011. The Traffic Commissioner returned to the question of why the vehicle was carrying a load.  RJ replied that it was a shunter and that the operating centre was “a big yard”.

(xx)           RJ agreed that he had been driving DK05 DHD on a regular basis.  The Traffic Commissioner then pointed out that having allowed his Class C entitlement to run out he would have been doing so uninsured.  After some discussion RJ accepted that this would have been the case.

(xxi)          The Traffic Commissioner then turned to the limited number of documents, which the Appellant had been able to provide, and asked why there were not more.  The Appellant replied that he had either mislaid them or that the driver might have taken them.  When pressed further he said that he must have them but that he needed to get his house in order.  He denied that he would have driven without a chart in the tachograph, but immediately had to accept that this is what had happened on 31 July 2014.

(xxii)         The Traffic Commissioner asked about a vehicle with the registration RK07 JPV.  RJ replied that it had been hired.  The Traffic Commissioner pointed out that it had a digital tachograph and asked RJ if the Appellant had the equipment to do the necessary downloads of the vehicle unit and the driver card.  RJ replied that it did not have this equipment.  RJ added that he had probably asked for advice from the wrong people.  He accepted that he should have checked more thoroughly.  The Traffic Commissioner pointed out that all the relevant information could be found on the DVSA website.

(xxiii)        The Traffic Commissioner turned to the question of insurance, pointing out that the Traffic Examiner had not been given details of the insurance for DK05 DHD.  RJ replied that the vehicle was insured and that he could provide the document if necessary.  The Traffic Commissioner referred to the fact that W10 PFA was insured in the name of Acorn Skips Ltd and that they were the registered keepers of all the vehicles specified on the licence.  He asked whether Acorn Skips Ltd was the operator of the vehicles.  RJ denied that this was the case.  After some further discussion the Traffic Commissioner asked whether the Appellant partnership rented the vehicle from the limited company.  RJ replied: “Yeah, that’s, yeah that’s basically what, yeah”.  When asked if there was a rental agreement RJ replied: “Well it’s more of an informal thing but, …”.  RJ went on to explain about the two businesses.  He was asked why the vehicles belonged to the limited company and were insured in its name.  RJ explained that he bought them through the company and had not transferred them.  He said that the company did not pay for maintenance or fuel.  A little later he said that he was not very good at explaining himself.  In answer to further questions he agreed that the insurance should be in the name of the Appellant, as the operator.  He said that it had now been changed and he would be able to produce a document, which would show that it was the Appellant, which insured the vehicles.  When asked about the request to produce tachograph charts for September, October and November 2014 RJ apologised and said that there had been a misunderstanding and that they were at the yard.  The Traffic Commissioner pointed out that this meant that he would be unable to tell if the Appellant had been observing the rules on drivers’ hours.

(xxiv)       Turning to the question of maintenance the Traffic Commissioner acknowledged that RJ had brought a copy of the maintenance agreement, dated 26 November 2014.  He asked whether RJ had brought copies of safety inspection records from 10 October 2014 or driver daily defect reports from 7 October 2014.  RJ replied that again he had misunderstood but that he had brought the blank book of forms.  The Traffic Commissioner pointed out that the request set out in the call-up letter was ‘as plain as a pikestaff’.  He then turned to consider what had been produced earlier.  He pointed out that 5 inspection sheets had been disclosed whereas over a 15 month period, with inspections at 6 weekly intervals, he would have expected at least 10 to have been available.  He asked whether that meant that some were missing or that some inspections had not been performed.  RJ replied that he was not going to lie it was a bit of both.

(xxv)        The Traffic Commissioner asked when RJ had first got in touch with Mr Ashby.  RJ was unable to be precise but Mr Ashby said that it was about 6 weeks before the date of the Public Inquiry.  RJ said that he was unable to produce a wall planner because he was still waiting for it.

(xxvi)       Looking at the inspection records that had been disclosed the Traffic Commissioner pointed out that they listed a large number of defects which ought to have been spotted by drivers doing a daily walk round check rather than during a 6 weekly safety inspection.  He asked whether the drivers were filling in defect reports all the time.  RJ accepted that before 5^th June drivers did not always fill in defect reports.

(xxvii)      The Traffic Commissioner asked about two vehicles specified on the operator’s licence, one of which MU51 NZJ had been seen on the grass verge outside the operating centre.  He said that that lorry had been sold and that it was waiting to be picked up.  The other, M370 UJN had been sold some time before.  RJ accepted that he should have removed them from the licence.  He agreed that he had not recovered the operators’ licence discs and that there was a risk that they were being driven on an ostensibly valid licence because his disc was being displayed.  He said that when this was all pointed out to him it made him realise how important “all this stuff is”.  However he went on to accept that as at the date of the Public Inquiry he had still not taken them off.

(xxviii)     In relation to the prohibitions the Traffic Commissioner pointed out that the defects were all the kind of thing that a driver ought to pick up on a daily walk-round check.  RJ agreed that this was the case.  The Traffic Commissioner asked why RJ had not responded to the report on the maintenance investigation.  RJ replied that when he could not find the records he decided to have a “bit of a blitz” and that he thought that unfortunately he must have thrown out some records with the irrelevant stuff.  A little later he said that he had now realised the severity of the situation and how important it was to maintain vehicles keep records and to ask for advice if he was not sure about anything.

(xxix)       The Traffic Commissioner then gave a brief summary of the options open to him including revocation, disqualification from holding or obtaining an operators’ licence, finding that he had lost his repute as a transport manager and disqualifying him from being a transport manager.  He gave RJ an opportunity to explain the effect that different forms of regulatory action would have on the business.  RJ agreed with the Traffic Commissioner that revocation would mean the end of the skip hire business but that the transfer station would be able to carry on.

(xxx)        The Traffic Commissioner closed the Public Inquiry by informing RJ that he would reserve his decision.  The Traffic Commissioner’s written decision is dated 9 December 2014.

(xxxi)       Having set out the background and referred to the evidence which we have summarised above the Traffic Commissioner made eight findings of fact.  There were: (i) that RJ had incurred convictions, (ii) that the Appellant’s vehicles had incurred roadworthiness prohibitions including an ‘S’ marked prohibition, (iii) that servants or agents of the Appellant had been issued with fixed penalty notices, two of which related to tachograph offences, (iv) that the statement of expectation that vehicles would be inspected at 6 weekly intervals had not been fulfilled, (v) that the undertaking in relation to drivers’ hours, tachographs and the retention of records had not been fulfilled, (vi) that the undertaking that drivers would report defects in writing had not been fulfilled, (vii) that the Appellant had failed to fulfil the undertaking to observe the laws relating to the driving and operation of vehicles, given, amongst other things, that RJ had driven for 18 months after his category ‘C’ entitlement had expired and (viii) that there had been a material change in the circumstances of the Appellant in that given the lack of involvement by Sylvia Jones it had become a sole trader business.

(xxxii)      The Traffic Commissioner then set out the factors which he took into account when balancing the positive and negative aspects of the evidence.  He concluded that the positive factors of a reasonable MOT pass rate and RJ’s promise to do better in the future were heavily outweighed by the negative findings listed in paragraph 2(xxxi) above.  The Traffic Commissioner indicated that he was particularly influenced by (a) the almost complete absence of proper record keeping, (b) the serious illegalities in driving not only without the proper entitlement and therefore without insurance but also without the vehicle in question being taxed or having an MOT certificate, (c) the convictions for road traffic offences, (d) the complete lack of any effective oversight of drivers’ hours and (e) the complete lack of any evidence that RJ had taken effective steps, following the maintenance inspection, to put matters right and his complete failure to bring the documents which he was required to submit at the Public Inquiry.

(xxxiii)     While the Traffic Commissioner concluded, despite the lack of records, that there was no evidence of more widespread use of W10 PFA, apart from 29^th and 31^st July 2014.  However he took the view that RJ took a calculated risk in operating the vehicle, on 31 July 2014 without tax or an MOT certificate.

(xxxiv)    Given the background the Traffic Commissioner concluded that he had no alternative but to conclude that RJ had lost his good repute, not only as an operator but also as a transport manager.  He pointed out that given RJ’s convictions for road transport offences such a conclusion was mandatory.  Having come to the conclusion that RJ had operated as a sole trader rather than under the partnership with his mother Sylvia Jones the Traffic Commissioner decided to make no finding in relation to her repute.

(xxxv)     Given the finding that RJ not longer fulfilled the requirement to be of good repute revocation of the licence was mandatory.  For the avoidance of doubt the Traffic Commissioner made it clear that even if loss of good repute had not been mandatory he would still have revoked the licence under s. 26(1) of the 1995 Act.  He explained that he would have reached that conclusion because in the light of RJ’s appalling record he would have had no confidence that the Appellant would operate compliantly in the future and he deserved to be put out of business because of his cavalier approach to the law, the way in which he had jeopardised the safety of other road users and the fact that he was competing unfairly with compliant operators.

(xxxvi)    Having revoked the licence the Traffic Commissioner concluded that it was appropriate to disqualify RJ from holding or obtaining an operators’ licence for three years.  As a result of the finding that RJ was no longer of good repute, as a transport manager, disqualification from acting as a transport manager was mandatory.  The Traffic Commissioner imposed an indefinite disqualification because he concluded that in addition to lacking good repute the evidence showed that RJ had very little grasp of the duties and responsibilities of a transport manager or of the laws governing the operation of heavy goods vehicles.  The Traffic Commissioner added that before RJ can re-establish his good repute and be considered for nomination as a transport manager he must, at the very least, have retaken and passed the examination to obtain a transport manager certificate of professional competence.

(xxxvii)   On 19 January 2015 RJ filed a Notice of Appeal on behalf of the Appellant.  In the grounds of appeal the Appellant explained that his failure to comply with the obligations attached to the operator’s licence arose through failing to take appropriate advice but that he had since employed a transport consultant to ensure compliance in the future.  He added that he had started the Transport Managers course and that he had begun to make major changes.  He urged the Tribunal to be lenient and to allow him to remain in business.  We have assumed that a letter dated 18 December 2014, in which the Appellant asked for a stay of the Traffic Commissioner’s decision also forms part of the grounds of appeal.  The letter listed a number of steps, which the Appellant had either taken or intended to take.

(xxxviii)  At the hearing of the appeal the Appellant was represented by Mr Ashby and RJ was present.  Mr Ashby explained that after he had been consulted the Appellant began to put matters right but that there was insufficient time to complete that process and to gather the necessary evidence before the Public Inquiry on 4 December 2014.  Mr Ashby stressed, in relation to RJ’s conviction, that he had been wrongly advised in relation to the road in question and believed that the Road Traffic Act did not apply.  Finally Mr Ashby said that he and RJ were prepared to do whatever was necessary to keep the business going.

3.         This is not the only appeal in which it has been suggested that the fact that a road is in private ownership means that the obligations imposed by the Road Traffic Act 1988, (“the 1988 Act”), the Goods Vehicles (Licensing of Operators) Act 1995, ["the 1995 Act"] or the Public Passenger Vehicles Act 1981, (“the 1981 Act”) do not apply.  In our view it is quite clear, as a result of the way in which “road” is defined in each of these Acts, that the question of whether a road is ‘public’ or ‘private’ is an irrelevant consideration, which is more likely to mislead than it is to assist.  For the purposes of the 1988 Act “road” is defined in s. 192(1) in this way: “Road, in relation to England and Wales, means any highway and any other road to which the public have access, and includes bridges over which a road passes”.  The first part of the definition in s. 58(1) of the 1995 Act is in identical terms, while the second part applies to Scotland and adopts the definition in the Roads (Scotland) Act 1984.  The definition in s. 82(1) of the 1981 Act is also identical to the definition in the 1988 Act.

4.         If there is evidence that the public have access to the highway or road in question and if the Traffic Commissioner accepts that evidence it follows that the road in question is one to which the 1981, 1988 and 1995 Acts all apply.  While we accept that RJ insisted, until advised of the correct position, that he believed that the fact that the road in question was ‘private’ made all the difference we have to say that the transport manager of a business holding an operator’s licence ought to have a better understanding as to when and where the relevant Acts apply.

5.         In our view there are four reasons why this appeal must fail.  The first is that this is a case in which RJ suffered mandatory loss of good repute.  Since he was the person principally concerned with running the business we are satisfied that the Traffic Commissioner was correct when he found that the partnership was therefore no longer of good repute.  The second is that once the Traffic Commissioner found that RJ had lost his good repute he was no longer qualified to act as a Transport Manger, with the result that the Appellant ceased to be professionally competent. The third is that the Traffic Commissioner concluded that there had in fact been a change in the entity operating the vehicles, without any application for a new operator’s licence.  The fourth is that it appears that the main steps which it is said that the Appellant had taken, or was proposing to take are steps taken or to be taken after the date of the decision.

6.         Turning to the first of these reasons, on 25 November 2014 Richard Jones was convicted of: (i) having no goods vehicle test certificate in force, (ii) using a vehicle outside the one month period of grace for specifying the vehicle on an operator’s licence, (iii) failing to produce tachograph charts at the roadside, (iv) failure to make a tachograph record and (v) using a vehicle when a SORN declaration had been made.  We are satisfied that these are ‘Road Transport offences’ within the definition in Paragraph 3(4)(a) of Schedule 3 to the 1995 Act.  This provides that: “Road Transport offence means – (a) an offence under the law of any part of the UK relating to road transport including, in particular, (i) an offence relating to driver’s hours of work or rest periods, the weights or dimensions of commercial vehicles, road or vehicle safety or the protection of the environment; and (ii) any other offence concerning professional liability”.  In our view offences (i), (iii) and (iv) above all relate to driver’s hours or rest periods and/or road or vehicle safety, so they come into a category with which Parliament was particularly concerned. 

7.         The consequence of convictions for road transport offences is set out in paragraph 2 of Schedule 3 to the 1995 Act.  This provides that: “Without prejudice to the generality of a traffic commissioner’s power under paragraph 1 to determine that a person is not of good repute, a commissioner shall determine that an individual is not of good repute if that individual has – (b) been convicted of road transport offences”.  We have underlined the word ‘shall’ to stress that once un-contradicted evidence of convictions for road transport offences has been put before the Traffic Commissioner, (which was the case here), he is required to find that the individual concerned is not of good repute.  In that situation the Traffic Commissioner has no discretion to find otherwise.

8.         RJ was operating in partnership with his mother and it was the partnership that obtained an operator’s licence.  However the Traffic Commissioner found that in reality Mrs Jones was no longer involved in the management of the business, with the result that it had become a sole trader business.  Whether Richard Jones was the dominant partner or a sole trader our view is that the Traffic Commissioner was entitled to regard his good repute as critical to fulfilling the statutory requirement for an operator to be of good repute.  Mandatory loss of good repute on the part of RJ therefore meant mandatory loss of good repute on the part of the operator and, inevitably, mandatory revocation of the licence had to follow, because of the terms of S. 27(1) of the 1995 Act. 

9.         Turning to the second reason, mandatory loss of good repute on the part of RJ has a further consequence.  In addition to being the person principally responsible for the business RJ was the designated transport manager.  The fact that he fulfilled that role enabled the Appellant to satisfy the requirement to be professionally competent.  A transport manager who ceases to be of good repute is (a) no longer qualified to act as a transport manager and (b) subject to mandatory disqualification from acting as a transport manager under paragraph 16(2) of Schedule 3 to the 1995 Act.  Without a designated transport manager, who has been approved by the Traffic Commissioner and satisfies the statutory requirements, the Appellant cannot satisfy the requirement to be professionally competent.  It follows, in our view, that a further consequence of the fact that RJ lost his good repute is that the Traffic Commissioner was correct to conclude that the Appellant had ceased to be professionally competent.  That too is a situation in which revocation is mandatory.

10.      As to the third reason our view is that there was evidence, which the Traffic Commissioner clearly accepted, capable of justifying the conclusion that there had been a change in the entity holding the operator’s licence from a partnership to a sole trader.  Indeed ‘sole trader’ was the description used by RJ to describe the way in which he operated.  Since an operator’s licence is neither “transferrable nor assignable” (see s. 48(1) of the 1995 Act), any change in the entity operating the vehicles in question requires a fresh application for an operator’s licence.  Since no application was made by RJ to operate as a sole trader we are satisfied that the Traffic Commissioner was correct when he concluded that there had been a material change in circumstances.  In our view it was a sufficiently serious change to warrant revocation of the licence.

11.      Turning to the fourth reason this relates to the letter dated 18 December 2014, which is annexed to the Notice of Appeal and appears to serve as part of the grounds of appeal.  In that letter the Appellant said that he accepted parts of the decision and he also accepted that he had been very laid back in his approach but that he had: “therefore put in place the following”.  He then set out thirteen different matters, including arranging to attend a CPC course, appointing someone to guide him and action, in a number of respects, to ensure that proper records were made and kept.  He went on to say that: “having already actioned the above due to the wake-up call of the Traffic Commissioner’s decision … I again ask for a stay…”.  It seems to us to be clear that the Appellant is seeking to persuade the Tribunal to take into account matters that were not in existence and actions that had not been taken by the date of the Traffic Commissioner’s decision.  Sadly this appears to be yet another example of an operator doing ‘too little too late’.  The reason why the Appellant has left it too late is that Parliament has stated in paragraph 17(3) of Schedule 4 to the Transport Act 1985 that: “The Upper Tribunal may not on any such appeal, (i.e. an appeal from a Traffic Commissioner), take into consideration any circumstances which did not exist at the time of the determination which is the subject of the appeal”.  Since it appears that all the matters on which the Appellant seeks to rely are ‘circumstances which did not exist’ at the date of the Traffic Commissioner’s decision it follows that the Tribunal is prohibited by Parliament from taking them into account.  That, in our view, is yet another reason why this appeal must fail.

12.      In our judgment this was a case of an operator who was out of his depth and was either unable or unwilling, until it was too late, to make any proper attempt to operate compliantly.  As a result he was competing unfairly with other operators and jeopardising the safety of other road users.  Not only was revocation of the licence appropriate, proportionate and justified in those circumstances but so too was disqualification.  In relation to disqualification from holding or obtaining an operator’s licence we are satisfied that a period of three years strikes the right balance between RJ’s interests and the wider public interest.  In relation to disqualification from acting as a transport manager this was mandatory, given the finding of loss of good repute.  In our view an indefinite disqualification was appropriate because the object of the exercise was to ensure that, at the very least, before being able to apply to remove that disqualification RJ would have to re-take and pass the examination for obtaining a transport manager CPC.  Given the extent of RJ’s ignorance, as exposed in the Public Inquiry, this, in our view, was a sensible and appropriate requirement.

13.      The Appeal is dismissed, with immediate effect.  The revocation of the licence, which has already taken place is confirmed, as too are the orders for disqualification.

 

 

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

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

29 May 2015