Neutral Citation Number: [2015] UKUT 444 (AAC) Appeal No: T/2015/11

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

(TRAFFIC COMMISSIONER APPEALS)

 

ON APPEAL FROM THE DECISION OF MR N JONES,

TRAFFIC COMMISSIONER for the WEST MIDLANDS TRAFFIC AREA,

DATED 13 JANUARY 2015

 

 

Before:

Judge M Hinchliffe, Deputy Chamber President (HESC); Judge of the Upper Tribunal.

Mr M Farmer, Member of the Upper Tribunal.

Mr D Rawsthorn, Member of the Upper Tribunal.

 

 

 

Appellant

TRAVEL EXPRESS LTD (Operator)

 

KISHAN SINGH CHUMBER (Transport Manager)

 

 

Attendance

For the Appellant: Mr M Laprell, Counsel instructed by Shulmans, Solicitors

 

Appeal heard at: Field House, Breams Buildings, London

Date of hearing: 18 June 2015

Date of decision: 29 June 2015

 

 

DECISION OF THE UPPER TRIBUNAL

 

IT IS HEREBY ORDERED that the appeal be dismissed.

 

 

 

Subject matter

Alleged poor representation; Application of 2009/225 Priority Freight.

 

 

Cases referred to

2009/225 Priority Freight

Graham William Smith t/a Smiths Coaches (T/2013/80)

Pilkington Asbestos Removal Services Ltd [2014] UKUT 500 AAC

 

 

 

 

 

 

REASONS FOR DECISION:

 

Background

1)    This was an appeal from the decision of the Traffic Commissioner for the West Midlands Traffic Area made on 13 January 2015 when he:

a)    made adverse findings against the operator under Section 17(3)(a); 17(3)(aa) and 17(3)(c) of the Public Passenger Vehicles Act 1981 (as amended);

b)    found that the operator had failed to operate a local service registered under Section 6 of the Transport Act 1985, and had failed to comply with the requirements of Regulations made under Section 6(9); and

c)    found that the Transport Manager no longer satisfied the requirement to be of good repute and that, therefore, the operator no longer had professional competence.

 

2)    As a result of these findings, the Traffic Commissioner ordered that:

a)    the condition attached under Section 16(1) specifying the maximum number of vehicles that the operator may use at any one time under the licence be varied, by reducing the number of such vehicles from 13 to 8;

b)    a penalty must be paid by the operator, under Section 155 Transport Act 2000, in the sum of £6,500;

c)    local services registered as service numbers 1 and 2 are to be cancelled;

d)    no new services may be registered by the operator until 15 March 2016;

e)    Mr Chumber is to be disqualified from acting as a Transport Manager until he passes fresh CPC Transport Manager examinations; and

f)     the operator will have a period of grace of 3 months to appoint a new Transport Manager.

 

3)    The tribunal agreed that both the original and amended Grounds of Appeal may be varied, so that, now, all matters are the subject of appeal, save and except the orders relating to Mr Chumber as Transport Manager, which are not challenged.

 

4)    The operator was first granted an operator’s licence in 2002. In 2011, an application was made to increase the authorisation from 10 vehicles to 20 vehicles. However, in the light of previous prohibitions issued, an unsatisfactory maintenance investigation and breach of undertakings relating to keeping vehicles in a fit and serviceable condition, the Traffic Commissioner held a public inquiry and only granted an increase to 13 vehicles. The Traffic Commissioner further said that the additional discs could not be used until the operator had employed an additional mechanic and had extended its maintenance pit. It is not clear from the papers whether, or how, this requirement was enforced.

 

5)    Between the 2011 public inquiry and the 2014 maintenance investigation, the prohibition history shows immediate prohibitions issued on 1/12/2011; 20/12/2011; 30/10/2013; 17/12/2013 and 10/1/2014. Two prohibitions were not cleared when the vehicles were presented for clearance (indicative of poor workmanship), and two different vehicles received “S” marked prohibitions on 10/1/2014, indicating a significant failure in maintenance.

 

6)    Largely as a result of the “S” marked prohibitions, an unannounced maintenance investigation was carried out by a DVSA Vehicle Examiner (Mr Jewess) on 10/3/2014.  Mr Jewess was accompanied by two other Vehicle Examiners, and he says in his evidence that, having arrived at the operating centre at 06:00 hours, the three men waited until the drivers had finished their walk round checks and were ready to take their buses out. The buses then inspected were, therefore, buses that would otherwise have been driven onto the roads, and in the condition found upon inspection.

 

7)    Nine vehicles were inspected, the interiors were dirty and untidy, and the mechanical condition was such that six prohibition notices were issued, including four immediate prohibitions, indicating that the vehicles would present an immediate danger on the road.

 

8)    All prohibitable defects found were corroborated by a second Vehicle Examiner, and three of the four immediate prohibitions were “S” marked, again indicating a significant failure in the maintenance systems.

 

9)    Many of the defects were safety critical – for example, corrosion was found on a mounting bracket that was so extensive it had actually become detached from the mounting post. The only remaining supporting bracket was also severely corroded. In the workshop there was evidence of old brake shoes which had been run until the brake lining was non-existent. There was also evidence of fretting, indicating that they had been run metal to metal for an extended period. It was also noted that maintenance facilities were very basic – there was only one underside inspection pit, despite the operator having 25 vehicles in possession, the workshop was cluttered and dirty, and only semi-skilled and unqualified mechanics were employed. The overall picture raised very significant and serious concerns.

 

10) Mr Jewess checked the operator’s paperwork and found no evidence that drivers had been trained to do the walk-round check properly or that they understood what was required; there was no evidence that any quality checks of the drivers’ inspections had been undertaken; there was no evidence of any disciplinary steps being taken to maintain driver standards, and there was no evidence that driver licences were periodically checked. Moreover, it appeared that no follow-up action had been taken following the earlier “S” marked prohibition notices.

 

11) Mr Jewess concluded that Mr Chumber only had a limited understanding of crucial aspects of maintenance that were safety critical, that this created “a dangerous situation”, and that the overall fleet operating conditions had significantly deteriorated since the public inquiry of 2011.

 

12) This operator had also been subject to attention from Bus Operator Account Managers, responsible for monitoring local bus services and timetable compliance. Following previous concerns, an improvement plan had been agreed with the operator in April 2014. Thereafter, a monitoring exercise took place between 2/6/2014 and 14/7/2014.

 

13) Of over a hundred timing points checked, 24 were regarded as failures to comply with the registered timetable - a “failure” being recorded, in accordance with a 2005 ‘Practice Direction’ from the then Senior Traffic Commissioner if, when compared with it’s registered route timetable, a bus failed to depart from a bus stop within a window of tolerance of up to 1 minute early and up to 5 minutes late. Additionally, there were routes that were not operated at all, buses seen at unregistered times, and buses completely off route. Adding journeys which failed to operate, ran at unregistered times, and ran off route to those operating outside the window of tolerance, produced an overall compliance rate of 55%. The Practice Direction states that Traffic Commissioners expect that operators will achieve 95% compliance. Of the 5 routes monitored, by far the worst were routes 1 and 2 – with route 2 managing a total compliance rate of just 19%.

 

14) In addition, there was evidence of vehicles waiting at the bus stop until a rival operator arrived, even when the service was running late, thereby unfairly collecting passengers who would otherwise catch the following vehicle. There was also evidence of just one vehicle operating a route rostered for two vehicles.

 

15) The Bus Operator Account Manager thought that there had been no implementation of the previous improvement plan and concluded that no beneficial changes had been made in order to achieve the effective and punctual management of registered local services.

 

Public Inquiry

16) A public inquiry took place on 1/12/2014 before the Traffic Commissioner. The operator and Mr Chumber were represented by Mr Earnshaw, a Transport Consultant.

 

17) The inquiry got off to a shaky start, with Mr Earnshaw forgetting Mr Chumber’s name, and suggesting that the operator had authorisation for 14 vehicles. After that, however, the evidence progressed and a number of points were made on the operator’s behalf.

 

18) For example, Mr Earnshaw stressed that Mr Chumber had provided all drivers with oral instruction, and demonstrated to them how to perform their walk-round inspection duties. Mr Earnshaw accepted that administration was something of a “blind spot” for Mr Chumber, but he submitted that Mr Chumber worked hard and was a constant presence at his business.

 

19) Mr Earnshaw explained that, according to Mr Chumber, the Vehicle Examiners inspected vehicles before the drivers had completed their walk-round checks, and/or whilst undergoing maintenance. Some defects allegedly found were, in fact, non-reportable, and the undertakings given at the previous public inquiry had been complied with. It was also suggested that some of the vehicles examined were VOR (vehicle off the road) and would not have been used that day. Unfortunately, at the time, they had not been identified as such.

 

20) Mr Earnshaw, through questions put to Mr Chumber, elicited an acknowledgement from him that attention had been diverted away from the service buses to a new fleet being purchased, and Mr Chumber admitted that he had taken his eye off the ball. However, the new buses were ten or more years younger and so maintenance would now be easier. Mr Earnshaw was also able to establish that DVSA officers did not find Mr Chumber unwilling to listen. The problem was with the subsequent implementation of advice – or lack of it. Moreover, many prohibitions could have been avoided if Mr Chumber had officially designated unused vehicles as VOR, so that then the Vehicle Examiners would not have inspected them. Mr Earnshaw addressed the Traffic Commissioner in relation to disposal, pointing out that revocation would be disastrous.

 

21) The Traffic Commissioner then gave an ex tempore indication as to his thinking and the likely outcome. He said to Mr Chumber that he was doing this in order “to give you advanced warning, so you can plan ahead.” The Traffic Commissioner also promised to issue a written decision, which in due course he did.

 

22) In his oral summation, the Traffic Commissioner explained that he had asked himself the “Priority Freight” question (see 2009/225 Priority Freight) and had asked himself, “How likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime?

 

23) In answer, the Traffic Commissioner had decided that, with appropriate measures in place, he could draw back from revocation. As a starting point, there would have to be a new Transport Manager in place. Additionally, the Traffic Commissioner said that there would have to be significantly fewer authorised vehicles because he did not believe that Mr Chumber could run a bus company of the current size. There would also have to be fewer registered services because the findings relating to timetables were “deeply worrying”. In addition, there would have to be a substantial financial penalty - this being justified by the complete lack of management control that lay at the heart of the operator’s non-compliance.

 

24) In his written decision, the Traffic Commissioner described the bus operation as amateurish, and Mr Chumber as a man who lacked competence as a manager and as an engineer, and yet who delegated nothing. This was why Mr Chumber had to recruit another Transport Manager. However, the Traffic Commissioner was concerned that Mr Chumber would not allow such a person to fulfil their role without interference. Working for Mr Chumber was likely to involve significant risk and the Transport Manager’s autonomy to make key decisions was vital.

 

25) The Traffic Commissioner said that he wanted the new Transport Manager to attend before him, so that he could ask him some pertinent questions, but he added that, in his view, the problems would not be solved merely by employing another individual to perform the role of Transport Manager. The condition of vehicles and the levels of professionalism needed to be raised, and it was not clear that Mr Chumber would be able to defer to someone else running the transport business. Therefore, the reduction in authorisation was to continue until a comprehensive DVSA investigation had taken place which demonstrated both that vehicles were safe, and that buses could be run in accordance with their registered timetables.

 

26) With the loss of routes 1 and 2 as a consequence of timetable non-compliance, the remaining services could continue with 8 discs.

 

27) Finally, in relation to financial penalty, the Traffic Commissioner referred to the timetable non-compliance matters as “unacceptable” and said that the travelling public were far less likely to use public transport if faced with dirty, unsafe vehicles running other than to their published timetables. Giving “limited credit” for the few positive features in the case, the Traffic Commissioner directed that the operator pay a financial penalty of 500 multiplied by 13 (the current authorisation) making an amount payable of £6,500. It is noted that, despite the very poor level of compliance, this is below the maximum allowed by law, which would be £7,150.

 

Appeal to the Upper Tribunal

28) At the hearing of this appeal, the Appellants were represented by Mr Laprell who submitted a skeleton argument for which we were grateful.  There are, essentially, two points to consider.

 

29) The first point made was that the operator had not had a fair public inquiry because it, and Mr Chumber, had not been represented competently, and the Traffic Commissioner had not been given the assistance of appropriate and suitable closing submissions. Mr Laprell’s skeleton argument lists a number of areas where, for example, Mr Earnshaw needed to seek clarification from Mr Chumber when he should have taken instructions in advance, and where he was unsure of basic facts. Cross-examination of the Vehicle Examiner was limited to one page and addressed issues in a cursory fashion. The final submission was brief and devoid of any principles which might focus the Traffic Commissioner’s mind on a route to a decision,

 

30) The second point was that the Traffic Commissioner had asked himself the “Priority Freight” question and decided that there were alternatives to revocation that would achieve compliance. The first of these was the appointment of a new Transport Manager. However, having arrived at this conclusion, the Traffic Commissioner should then have asked the Priority Freight question again, and if more action was needed, clear reasons should have been given. If a further measure was necessary, the Traffic Commissioner should again stop and ask the Priority Freight question – and so on until the minimum necessary set of measures had been identified to ensure future compliance.

 

31) Mr Laprell’s submission was that the Traffic Commissioner had not explained why the appointment of a new professionally competent Transport Manager (especially one that the Traffic Commissioner had personally approved of) was not a sufficient remedy. Mr Laprell submitted that – once there was a new and competent Transport Manager – there was no need to reduce the authorisation, no need to remove routes or prevent new routes being registered, and no need to punish the company with a financial penalty.

 

32) In short, once it was clear that a new Transport Manager would be brought in, Mr Laprell complained that the Traffic Commissioner had not revisited the Priority Freight question, having considered and predicted the likely level of improvement that this would bring. Mr Laprell submitted that, as a consequence, the addition of any further orders, on top of those relating to Mr Chumber personally, amounted to sanctions that were excessive and disproportionate.

 

Tribunal’s Conclusions with Reasons

33) So far as the representation point is concerned, whilst we accept that Mr Earnshaw may not have reached the high standards that we would have expected from Mr Laprell, we do not think that Mr Earnshaw demonstrated such incompetence that it could be said that the proceedings before an experienced Traffic Commissioner were rendered unfair. Having read the entire transcript for ourselves, we are not persuaded on balance that Mr Earnshaw took decisions or acted in such a way that no reasonable advocate might reasonably have been expected to act.

 

34) In Graham William Smith t/a Smiths Coaches (T/2013/80) we considered similar submissions:

 

7.     As far as the standard of advocacy and representation is concerned, the tribunal recognises that different representatives will exercise their judgement differently in relation to the most advantageous way of presenting a case. There are representatives, at one extreme, who will take every point and argue every excuse, and this may or may not be an appropriate, engaging or successful strategy when appearing before an expert judicial decision maker, such as a Traffic Commissioner. At the other extreme, there are those advocates and representatives who take the view that “least said, soonest mended” and consider that the best approach is to gloss over the negative features and, instead, seek to maximise the benefit to be obtained by admitting and accepting the errors and defects alleged without unnecessary argument whilst, at the same time, offering urgent and effective rectification and improvement.

 

8.     Some advocates exercise this judgement better than others: some will seek to defend the indefensible whilst others may omit to highlight weaknesses in the evidence presented by VOSA – perhaps because, in the scheme of things, the limited areas for effective challenge will make little difference to the outcome, and appearing to nit-pick may do more harm than good.

 

9.     Mr Nesbitt’s complaints included the suggestion that Mr Carless had not initially sought to cross-examine in circumstances where any competent advocate would attempt to show, for example, that the ‘history’ was not as serious as it looked, that the prohibition history contained some prohibitions that were delayed or not serious, and that in relation to finance, the confusing position should have been clarified, or a period of grace sought.

 

10.  Having read the transcript in its entirety, the tribunal does not consider that the standard of representation and advocacy deployed by Mr Carless was so poor as to render the process unfair. Mr Carless clearly made a decision to move on from too detailed consideration of the past and, instead to concentrate on the future. In our view, Traffic Commissioners will be well able to accurately assess for themselves the seriousness or otherwise of a P.I history, or a schedule of prohibitions. It is not always wise to treat Traffic Commissioners as if they are a jury, lacking expertise in the subject matter of the case and needing to have the obvious pointed out.

 

35) We consider that similar considerations apply here. Mr Laprell did not pursue this point vigorously at the hearing before us and, in any event, we find that it has no merit. Indeed, to paraphrase what we said in Pilkington Asbestos Removal Services Ltd [2014] UKUT 500 AAC, it would be regrettable if operators imagined that it might be a viable tactic to wait and see what the outcome of a public inquiry or hearing is - and, if the outcome is undesirable, to then seek to blame their representative. It is to be remembered that the Traffic Commissioner’s jurisdiction is commercial, and all licensed operators are expected to have sufficient funds for the proper administration and conduct of their business. It is a matter for an operator to decide whether they wish to be represented if called before a Traffic Commissioner and, if so, who they wish to instruct, and how much they are prepared to pay.

 

36) So far as the argument based upon the Priority Freight question is concerned, we regard this as misconceived. By definition, if an operator holding a standard international PSV operator’s licence is allowed to continue in business, it must have professional competence – whether that is to be provided by the existing Transport Manager, or by someone new. In addition, Parliament has envisaged that Traffic Commissioners may also need to consider other types of regulatory action. Having a Transport Manager of good repute is not a panacea for all ills. It is an essential prerequisite, but it may not be enough. A package of measures may be required.

 

37) Although the idea of a Traffic Commissioner giving an oral ex tempore decision with some reasons and then also giving a written decision is not ideal, we consider that, taken together, the oral and written decisions provide a sufficient insight into the Traffic Commissioner’s thinking, and provide adequate reasons for his decisions and actions.

 

38) We would add that, sitting judicially at first instance, the Traffic Commissioner is similar to a First-tier Tribunal. Unlike an Upper Tribunal decision in this jurisdiction where readers from the industry and the legal profession (and the public) are entitled to an adequate summary of the background facts in order to understand the context and rationale of the tribunal’s binding judgment, the decision of a Traffic Commissioner is not one that sets a precedent. It is principally of interest to the participants and any appellate body. Reading the Traffic Commissioner’s oral remarks in the transcript, together with his later written decision, we are in no doubt as to the reasons why the Traffic Commissioner was not content to confine regulatory action to merely having a new Transport Manager brought in. We do not believe that Mr Chumber, who was present at the public inquiry, would be in any doubt either.

 

39) The Traffic Commissioner, rightly in our view, considered that bringing risk down to an acceptable level required a multi-pronged approach, or a package of coherent, cohesive and consistent measures that needed to fit together so that the size of the fleet matched the ability of the operator to maintain it in a fit and serviceable condition with proper records kept, and also matched the demands of the registered local services to be provided to the public. In this case, a new Transport Manager was clearly not the complete answer, especially where the new person would probably be appointed by Mr Chumber and would then be employed by a company that had Mr Chumber as sole director, sole shareholder, and controlling mind.

 

40) Moreover, the Traffic Commissioner had three separate legislative pathways to follow. First, there were considerations relating to the Transport Manager. Second, there were distinct considerations relating to the maintenance failings and prohibitions, for which the operator was responsible. Third, there were considerations relating to timetable compliance and reliability for which, again, the operator was responsible. Each of these pathways, involving different statutory provisions, were addressed individually but then, in order to achieve a final outcome that was proportionate and appropriate, the Traffic Commissioner considered the picture in the round, and finalised a package of measures that, taken together, were entirely appropriate to the very serious failings established on the evidence, and which fitted logically into a coherent, cohesive and consistent whole.

 

41) We have set out the evidence in this case at some length because readers of this decision need to understand why this was a bad case. The bus industry is highly competitive, and it is essential that bus operators are reassured that Traffic Commissioners will use their full range of powers to discourage operators from cutting corners, from gaining an unfair competitive advantage through non-compliance, or from taking risks with public safety. The ‘Priority Freight’ question is, of course, the appropriate starting point but, in our view, it remains important that the Traffic Commissioner’s statutory powers should not be emasculated by an over elaborate approach, such as that which was suggested to us in this case.

 

42) The appeal is dismissed.

Judge M Hinchliffe, DCP

29 June 2015