Neutral Citation Number: [2015] UKUT 474 (AAC)

Appeal No.  T/2015/19

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

ROAD TRANSPORT APPEALS

 

ON APPEAL from the DECISION of James Astle DEPUTY TRAFFIC COMMISSIONER for Scotland

Dated 19 February 2014

 

 

 

Before:

His Hon. Michael Brodrick Judge of the Upper Tribunal

Leslie Milliken Member of the Upper Tribunal

John Robinson Member of the Upper Tribunal

 

 

Appellant:

JAMES KILPATRICK t/a J KILPATRICK COACH HIRE

 

 

 

 

Attendances:

For the Appellant: The Appellant appeared in person

 

 

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

Date of hearing: 16 July 2015

Date of decision: 18 August 2015

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED.

 

 

 

 

 

 

 

 

 

SUBJECT MATTER:-   Restricted PSV operator’s licence, Good Repute; Financial Standing; main occupation

 

 

CASES REFERRED TO:- Appeal 2008/240 Jim Kilpatrick t/a J. Kilpatrick Coach Hire

T/2012/17 NCF (Leicester) Ltd [2012] UKUT 271 (AAC)

 

 

 

REASONS FOR DECISION

 

 

Background

1.         This is an appeal from the decision of the Deputy Traffic Commissioner for Scotland to refuse the Appellant’s application for a Restricted PSV operator’s licence.

Facts

2.        The factual background to this appeal appears from the documents and the Traffic Commissioner’s decision.  It is summarised in the remainder of this section.

3.        In 1997 the Appellant was convicted of offences of reckless driving, assault, wilful and malicious driving and disorderly conduct.  The assault was on another road user.  The Appellant was sentenced to 6 months imprisonment and disqualified from driving for 4 years for the offence of reckless driving.  Sentences of 30 days, 30 days and 60 days consecutive were passed for the other offences.  In passing sentence the Sheriff described the Appellant as: “arrogant and self-opinionated”.  The Appellant’s driving licence was restored, on his application, after 2 years 7 months.  As a result of these offences the Appellant was called to a Public Inquiry but it was cancelled when he did not renew his operator’s licence.

4.        In 2003 the Appellant applied for a standard national PSV operator’s licence.  In granting the application for 2 vehicles the Traffic Commissioner for Scotland said: “In effect Mr Kilpatrick is asking me to trust him and to give him a chance to rebuild his life.  I have decided that I will do that.  I do that not without some hesitation …… I have to trust him to operate with due regard to the feelings and perceptions of others.  He will have to earn the trust of the industry and in that regard I warn him to be transparent in his business dealings and respectful of others in his conduct”.

5.        On 30 March 2004 the Appellant’s son, who was also the holder of an operator’s licence, was called to a Public Inquiry, which the Appellant attended.  The Public Inquiry was adjourned to establish whether a cheque would clear.  By the time it resumed, on 19 August 2004, the Appellant had been called to the adjourned Public Inquiry so that his financial standing, an adverse report from a Vehicle Examiner and questions relating to the breach of conditions: (i) that he was to have no financial interest in his son’s business and (ii) that he was not to be employed by that business or have any involvement in the management or day-to-day running of the business, could be considered.

6.        On 19 August 2004 the Appellant’s son did not attend the Public Inquiry.  He was by then serving a sentence of 18 months imprisonment passed in July 2004.  When the Appellant was informed that this was the reason for his son’s absence the Appellant became upset and said that he did not know of his son’s imprisonment.  The Public Inquiry was again adjourned.  When it resumed on 9 September 2004 the Appellant was represented.  The Traffic Commissioner for Scotland knew, by then, that the Appellant had visited his son in prison before the hearing on 19 August 2004.  The Appellant apologised profusely for misleading the Traffic Commissioner for Scotland.  He said that he was ashamed of his son’s actions, that he did not want to attract further attention from the Press who had hounded him and that when he saw a reporter present on 19 August he panicked.

7.        The written decision of the Traffic Commissioner for Scotland is dated 12 July 2006, which was nearly 23 months after the end of the Public Inquiry.  The decision contained a number of adverse findings against the Appellant.  For example: (i) paying a cheque to the wife of a man diagnosed with cancer for the purchase of 3 coaches, which was subsequently dishonoured, was described as “appalling”, (ii) the Appellant had breached undertakings to make proper arrangements to ensure that his vehicles were roadworthy, (iii) he had lied when saying that he did not know that his son was in gaol, (iv) he was less than honest about the business arrangements with his son and (v) he was a “great man for excuses”.  Perhaps in part because of the delayed decision the Traffic Commissioner for Scotland decided that it would be disproportionate to make a finding that the Appellant had lost his good repute, because the inevitable consequence of such a finding would have been revocation.  Instead she gave the Appellant one final chance to show that he had matured and could act responsibly and deal honestly.  She added a condition to the licence to prevent the number of authorised vehicles exceeding two for a period of 18 months.

8.        After “adverse reports from VOSA Traffic and Vehicle Examiners” the Appellant was called to further Public Inquiry, which took place on 18 April 2008.  This resulted in findings of a failure to comply with undertakings, loss of good repute, loss of financial standing and loss of professional competence.  As a result the PSV operator’s licence held by the Appellant was revoked and the Appellant was disqualified from holding or obtaining an operator’s licence for a period of 5 years commencing at 23:59 on 30 May 2008.

9.        Amongst the detailed findings made by the Traffic Commissioner for Scotland were these: (i) the Appellant deliberately omitted to produce tachograph records when required to do so, (ii) the Appellant deliberately misled the Traffic Examiner when first asked about the number of drivers he employed, (iii) the Appellant failed to record the true hours that he worked by continuing to drive having removed charts without putting in a new chart so that the missing mileage covered up breaches of drivers’ hours and tachograph regulations, (iv) the Appellant lied about the breaches of the rules on drivers’ hours and tachographs, (v) the Appellant took cash which was not put through his books, (vi) the Appellant undertook a journey to Glasgow without conducting a proper first use check, of the vehicle’s wheels and that when he did detect that something was amiss he chose to tighten the wheel nuts at the roadside and drive on risking the loss of the wheel, with consequent danger to his passengers and other road users, (vii) that the Appellant was not of appropriate financial standing.

10.      The Traffic Commissioner for Scotland concluded that it was: “a very serious case given the background of the two previous Public Inquiries” and the Appellant’s previous conduct. She found that the positive factors, which were limited, were outweighed by the negative factors and concluded that the Appellant was no longer of good repute or professionally competent.  She revoked the licence and disqualified the Appellant from holding or obtaining an operator’s licence for 5 years.  Her reason was: “He simply cannot be trusted to be a straightforward compliant operator”.  She added: “I do not think that Mr Kilpatrick can change.  He lacks credibility in my eyes.  This leads me to warn him that he cannot regard it as a given that if he applies for a licence in 5 years’ time that he will push at an open door”.

11.      The Appellant appealed to the Transport Tribunal, (whose jurisdiction has now been transferred to the Upper Tribunal).  The appeal was dismissed, the revocation of the operator’s licence was upheld and the disqualification was ordered to commence at 23:59 on 16 December 2008, (see Appeal 2008/240 Jim Kilpatrick t/a J. Kilpatrick Coach Hire).  The Tribunal ended its decision, at paragraph 5, with these words:-

“The Appellant accepts that the revocation of his licence was inevitable as a result of the lack of evidence in support of financial standing and we are satisfied that it was also inevitable as a result of the adverse findings that the Traffic Commissioner made upon the evidence that she heard.  Her assessment and categorisation of that evidence was beyond reproach and when assessing the truthfulness and credibility of the witnesses, the Traffic Commissioner was in the best position to do that.  Against the background of the previous regulatory action, this was a serious case and we are satisfied that had there not been a delay between the public inquiry in 2004 and the publication of the Traffic Commissioner’s decision twenty three months later, she would have revoked the Appellant’s licence at that stage.  The delay in producing her decision gave the Appellant a life line, which he did not take.  The revocation on all grounds cannot be faulted, neither can the decision to disqualify the Appellant.  Whilst a period of five years may appear to be harsh, we are satisfied that it was not disproportionate and accordingly, the appeal is dismissed with effect from 23.59 on 28 October 2008”.

12.      On 18 November 2011 the Appellant attended and was represented at a Public Inquiry concerning the operator’s licence held by Jacqueline Doherty, (later Mason) and James Thompson, trading in the name of Access Coach Hire. Neither Mrs Mason nor Mr Thompson attended the Public Inquiry.

13.      On 16 December 2012 the Traffic Commissioner for Scotland gave a written decision following the Public Inquiry on 18 November.  The following conclusions are relevant to the present application: (i) the application for an operator’s licence by Access Coach Hire was made in September 2008 at the suggestion of the Appellant, who was by then disqualified from holding or obtaining an operator’s licence, (ii) the vehicles authorised for use by Access Coach Hire were owned, hired or leased by the Appellant, (iii) Mrs Mason was not the ‘controlling force’ of the operation, nor was Mr Thompson in control of it (iv) there was evidence that Mrs Mason, in conjunction with the Appellant fabricated inspection sheets and diaries, (v) Mrs Mason and Mr Thompson lent their names to an operation the prime purpose of which was to enable the Appellant to operate a coach hire business as the principal driver and the person who controlled hiring and got in the business.

14.      As a result of these findings the Appellant’s passenger carrying vehicle driving entitlement was suspended for a period of four months, with effect from 23:59 on 31 December 2011.

15.      On 23 April 2014 the Appellant applied for a restricted PSV operator’s licence authorising the use of 1 vehicle, adapted to carry 9-16 passengers, from an operating centre at 127 Myreside Avenue, Kennoway, Fife.  He confirmed that he was aware of the restrictions applicable in the case of a restricted PSV operator’s licence operating a vehicle adapted to carry 9-16 passengers.  The Appellant declared, in the application, that his main occupation was to market his travel business, Phoenix Travel, which organised coach tours.  He said that he worked an average of 30-35 hours per week in relation to that business and anticipated that he would work 10-15 hours per week on the Coach Hire business if a Restricted Licence were to be granted.  If necessary he said that he would employ another driver.  The Appellant disclosed in the application that he had been declared bankrupt or had had his estate seized or confiscated.  He also disclosed in the application that he had previously held an operator’s licence, that it had been revoked and that he had been disqualified.

16.      On 6 May 2014 the Office of the Traffic Commissioner, (“OTC”), wrote to the Appellant to indicate that the application could not be put before the Traffic Commissioner until further information had been provided: (a) as to the Appellant’s main business, (b) as to who was to drive the vehicle and for how long and (c) as to evidence of financial standing.

17.      On 15 May 2014 the Appellant replied.  He said that he had begun to plan his new business in March 2013.  The business involved organising and planning coach tours, business trips, corporate events, team building events and special interest tours in the UK, Ireland and Western Europe.  He said that due to his previous financial difficulties he was only able to obtain a new business account in March 2014, which meant that it was impossible to take on new customers until then.  He added that he had completed his first trip and had two others confirmed for June and July 2014.  He explained how the business would work stressing that the 16 seater mini-coach, for which he sought authority would be used as a ‘feeder service’ to pick up and drop off passengers from outlying areas and also for small groups on short-term tours.  He pointed out that, as yet, he did not have accounts or tax returns for the business.  He said that his initial plan was that he would be the driver but that he envisaged employing another driver as and when needed.  He enclosed the opening balance of the business account showing a deposit of £3,100.

18.      A sum of £3,100 is required to demonstrate appropriate financial standing in respect of the operation of one PSV under a restricted PSV operator’s licence.

19.      On 6 June 2014 the OTC wrote to the Appellant as: “a final attempt to resolve the issues by correspondence”.  The letter pointed out that an internet bank statement was not acceptable because bank statements must either be originals or verified by the bank in question.  In addition further information was requested about the Appellant’s main occupation.

20.      On 11 June 2014 the Appellant replied.  He enclosed the original of the first month’s bank statement for the business account.  This showed an opening credit of £3,100 and a closing balance on 27 May 2014 of the same amount. The Appellant said that he was the sole proprietor of Phoenix Travel.  He enclosed documents confirming the existence of Phoenix Travel and confirming matters relating to the first completed trip.

21.      On 2 July 2014 the OTC wrote to the Appellant to inform him that the Traffic Commissioner had decided to consider the application at a Public Inquiry.  He was told that the Public Inquiry team would provide further details in due course.

22.      On 27 October the OTC, wrote to the Appellant to notify him that the Traffic Commissioner would hold a Public Inquiry, on 11 December 2014, at which to consider whether he met the requirements for holding a restricted PSV operator’s licence.  The letter went on explain that the application could only be granted if the Appellant satisfied the Traffic Commissioner that the requirements of the Public Passenger Vehicles Act 1981, “(the 1981 Act)”, had been met.  In particular the letter referred to the fact that under s. 14ZB an applicant had to satisfy the requirements (a) to be of good repute, (as determined in accordance with paragraph 1 of Schedule 3) and (b) to be of appropriate financial standing (as determined in accordance with paragraph 2 of Schedule 3).  In addition the letter set out the requirements of s. 14ZC, namely that the Traffic Commissioner had to be satisfied (a) that there would be adequate facilities or arrangements for maintaining the vehicle in a fit and serviceable condition and (b) that there would be adequate arrangements for securing compliance with the legal requirements relating to the driving and operation of the vehicle.  The evidence to be considered at the Public Inquiry was included with the letter.  It went on to explain, in some detail, the type of evidence required to establish appropriate financial standing.  In addition evidence of the Appellant’s principal occupation was required: “giving its nature and weekly hours, together with proof of earnings in the form of wage slips, last years P60 or Tax Return”.  The letter required the Appellant to provide documents in relation to financial standing and his main occupation by 24 November 2014.  Finally it required that documents relating to the systems for vehicle maintenance, compliance with driver’s hours and tachograph regulations and any other relevant evidence should be brought to the Public Inquiry.

23.      The Appellant provided bank statements for the period 29 April 2014 to 27 October 2014.  We have already indicated that these show an opening credit of £3,100 on 14 May 2014.  On 17 July 2014 £3,000 was transferred to another account.  On 6 August 2014 a further £50 was withdrawn, leaving a credit balance of £50, which remained the closing balance on 27 October 2014.

Public Inquiry

24.      The Public Inquiry took place before the Deputy Traffic Commissioner on 1 December 2014.  The Appellant appeared in person, accompanied by his Administrative Assistant, Shirley Dunn.

25.      The Deputy Traffic Commissioner began by stressing that it was for the Appellant, as an applicant for an operator’s licence, to persuade him that it was appropriate for an operator’s licence to be granted.  He then summarised the history beginning in the 1990’s.  We have set this out as far as it is material to this appeal.  At the end of his summary the Deputy Traffic Commissioner posed the question: “Now, why should I trust you in your assurances that you are not simply seeking permission to set up a coach hire business under the guise of a Restricted Licence and that that is going to be your main business?  Why should I trust you?”  The Appellant provided clarification and said that he had not applied for a standard licence because his finances did not allow him to do so and he wanted to concentrate on coach tours rather than running a coach hire business.  He said that a restricted licence would assist in the operation of the coach tour business.  However he went on to explain that due to reduced mobility since about May 2014 he had not been operating the business because of the difficulty of getting abroad to make the necessary arrangements.  Instead he had been kept afloat financially by trading on eBay, though he said that he did not want eBay to provide his main source of income.  His hope was that once he had got his knees sorted out he would be able to revive the coach tour business.

26.      The evidence in relation to financial standing was heard in Chambers.  The Deputy Traffic Commissioner referred to the bank statements, which we have summarised above and indicated that he was aware that the Appellant had paid £3,100 into the account shortly before the Public Inquiry.  The Appellant said that while he had been running the tour company since March 2013 it was not his means of earning a living because his circumstances had changed.  He agreed that £3,000 had been withdrawn in July 2014 and that three credits in late November 2014 took the balance of the account back to £3,100.  In relation to the tour company, Phoenix Travel, the Appellant said that he had only completed the three tours he mentioned earlier.  He explained that since he made the application for a restricted licence his mobility had deteriorated to the extent that he might need a double knee replacement.  He accepted that he had not provided any medical evidence, though he did provide it later.  He said that because of this reduced mobility he looked for other ways to make money.  He said that trading on eBay began as a hobby but had become a business, which involved buying bankrupt stock and selling it on eBay.  He provided the Deputy Traffic Commissioner with Sales Reports showing the extent of the business, which were headed: “CoachDriver 1956”.  He said that this was his username on eBay.  The Appellant pointed out that with one exception the period between May and October 2014 showed steadily increasing eBay sales.  He accepted that to calculate his net profit it would be necessary to deduct the cost of buying the products that he sold as well as the fees charged by eBay and PayPal.

27.      The Appellant said that the amount of time spent on the eBay business meant that he had not done much in the way of marketing the Coach Tour business.  The Deputy Traffic Commissioner asked the Appellant to explain why he wanted a restricted licence to facilitate the development of a tour business that did not appear to be operating.  The Appellant explained that a small coach would help to speed up the process of picking up passengers for a larger tour and that it could be used to collect international clients arriving at various different times.  He added that it could be useful for smaller tours but he did not want that to be the “main thing”.

28.      In relation to the requirement to have £3,100 available the Appellant said that having read the Guide to Public Inquiries he came to the conclusion that the value of the assets which he was offering for sale on eBay would be more than sufficient to meet the statutory requirement.  However when pressed about the amount which could be raised the Appellant indicated that if he needed to sell the stock overnight it would raise significantly less, though still more than £3,100.

29.      On 8 December 2014 the Appellant provided the Deputy Traffic Commissioner with various written submissions.  Amongst the points made were these: (i) the Appellant contended that the grant of an operator’s licence after 1997 nullified any continuing judgment arising out of the conviction that year and that since he had no further convictions his good repute remained intact, (ii) he contended that too much emphasis had been placed on his past history and not enough attention had been given to how things had changed and how he planned to ensure that past mistakes were not repeated,  (iii) there was no proof of involvement with other licences only speculation or innuendo, (iv) since there had been no proof of a breach of the disqualification order there was no further loss of good repute, (v) it had never previously been stated that his good repute had been lost, (vi) documentary evidence was provided of the amount of eBay stock available for sale and of a steady flow of income comfortably covering the amount required to show appropriate financial standing and (vii) he provided evidence that the three tours organised by Phoenix Travel made a profit and that further tours were planned for 2015.

Deputy Traffic Commissioner’s Findings and Reasons

30.      The Deputy Traffic Commissioner gave a written decision dated 19 February 2015.  He began by summarising the law, pointing out that it was for the Appellant to satisfy him, on the balance of probability, that the statutory requirements for the grant of a restricted licence had been met.  He then set out the relevant statutory requirements, quoting them where necessary.  He referred to the evidence, which we have summarised above.

31.      The Deputy Traffic Commissioner made detailed findings.  He referred to many of the earlier findings in relation to the Appellant’s good repute, which we have set out above.  He went on to consider the Appellant’s request that he should consider all these matters to be history and to conclude that things had changed and that his reputation had been rehabilitated.  He explained that he was unable to reach that conclusion.  He gave the following reasons: (i) The length and seriousness of the catalogue of ill repute required to be balanced by a substantial subsequent history of good repute before it was possible to conclude that good repute and trust had been restored to the extent required for the grant of an operator’s licence, (ii) While the period of disqualification had been served and he should not be condemned to an indefinite period of hopelessness the Appellant had still not been able to accumulate sufficient evidence to demonstrate that he could be trusted, (iii) This conclusion was reinforced by the evidence that he continued to operate behind the front provided by the operator’s licence issued to Access Coach Hire, (iv) While there was no evidence that Phoenix Travel had been operated in breach of the 1981 Act the limited extent of that operation was insufficient to support a finding of trustworthiness, (v) The Appellant’s actions in relation to Access Coach Hire and the explanations he gave at the Public Inquiry in relation to that licence were relevant to the present application and gave rise to concern that his actions would extend beyond what was permitted under a restricted licence, (vi) The Appellant’s continued insistence that findings made against him in the past were wrong and his claim that it had never been brought home to him that he had lost his good repute showed that he remained a man who could not be trusted, (vii) Having come to the matter without having had any previous dealings with the Appellant the Deputy Traffic Commissioner nevertheless concluded that the assessment in the 2006 decision was correct, namely that the Appellant was: “certainly a great man for excuses, there is always an angle, always a story”.  As a result of all these matters the Deputy Traffic Commissioner concluded that it was not likely that the Appellant would operate in compliance with the operator’s licencing regime.  He ended, for the avoidance of doubt in the future, in bold and underlined: “I do not find this man of good repute”.

32.      The Deputy Traffic Commissioner then turned to the question of whether the Appellant’s main occupation would not involve the operation of PSVs adapted to carry more than eight passengers.  He concluded that the Appellant had not satisfied him on this point.  He came to this conclusion for three reasons.  First, he found that Phoenix Travel was little more than an incipient business idea and he found that the Appellant had not produced evidence of substantial income from the business or even substantial trading.  Second, he was not persuaded that the new business would be subsidiary to Phoenix Travel rather than a part of Phoenix Travel itself.  He came to that conclusion because he felt unable to trust the Appellant’s assurances on this point.  Third, he was not satisfied that the evidence relating to eBay transactions provided a sufficient income for the Appellant to support himself.  He pointed to the fact that there were no accounts for this ‘business’ and that he only had the Appellant’s word that the username ‘CoachDriver 1956’ was in fact the Appellant.

33.      Next the Deputy Traffic Commissioner considered the financial evidence and concluded that it was not sufficient to satisfy him that the Appellant would be able to fulfil the requirement to be of appropriate financial standing.  He gave four reasons for reaching that conclusion.  First, he pointed out that the bank statements did not show the consistent availability of the £3,100 needed to meet the requirement.  Instead they showed that such a sum was available between 28 May and 25 July 2015 and again on 28 November 2015.  While he accepted that the Appellant had given an explanation for this situation he pointed out that he had already come to the conclusion that the Appellant was a man whose word he could not trust.  Second, he pointed out that he only had the Appellant’s word for the fact that the eBay transactions were his.  Third, he pointed out that the ability to raise income via eBay trading was not the same as the cash generated from sales and that there were no profit and loss accounts for the business and no evidence as to the saleability of the stock.  Fourth, the Deputy Traffic Commissioner pointed out that the Appellant had been bankrupt twice, had not recovered financially from the second bankruptcy and had no assets against which to borrow money.

34.      In view of those findings the Deputy Traffic Commissioner refused the application on the grounds that he was not satisfied: (i) that the Appellant was of good repute, (ii) that he was of appropriate financial standing and (iii) that his main occupation would not be the operation of PSVs adapted to carry more than eight passengers.  The Deputy Traffic Commissioner added that in view of those findings he had not found it necessary to consider whether the Appellant had satisfied the requirement (a) to have adequate facilities or arrangements for maintaining authorised vehicles in a fit and serviceable condition and (b) to have adequate arrangements for securing compliance with the rules on drivers’ hours and tachographs.

Grounds of Appeal

35.      The Appellant filed a Notice of Appeal dated 21 March 2015.  In his grounds of appeal he challenged the findings made by the Deputy Traffic Commissioner: (i) that he was not of good repute, (ii) that he did not have appropriate financial standing and (iii) that he had failed to show that the operation of a PSV adapted to carry more than 8 passengers would not be his main occupation. In addition he argued that the Deputy Traffic Commissioner gave too much weight to adverse comments made in the past and too little to his willingness to operate compliantly.  In relation to each of these points the Appellant set out the arguments he advanced in support of his contentions.  Although raised in the grounds of appeal it is not necessary to deal with maintenance issues because the Deputy Traffic Commissioner found it unnecessary to make any findings in relation to those issues.  The grounds of appeal also contain submissions under the headings ‘Comments’ and ‘Weight of Evidence’.  It is unnecessary to deal with these points under separate headings since these submissions relate to the three main grounds of appeal.

Appeal Hearing

36.      On 21 March 2015 the Appellant wrote to the Tribunal.  He said that he had been informed that it might take some time for the Appeal to be listed for a hearing in Scotland.  He went on: “I hereby request that a hearing in relation to my Appeal relating to the decision not to grant me a Restricted Operator’s Licence be heard in London as soon as possible.  I confirm that I am willing to travel to London for this hearing in order to expedite matters”.  Since the Upper Tribunal is a unified jurisdiction, covering the whole of the UK, the Tribunal acceded to this request and listed the appeal for hearing in London.

37.      The Appellant was present at the hearing of the appeal.  He made submissions on all the main grounds of appeal.

38.      On the question of good repute the Appellant argued that the Deputy Traffic Commissioner had paid too much attention to his past history and his previous dealings with the Traffic Commissioner for Scotland.  The Appellant referred to the consequences of the events of 1997, (see paragraph 3 above), and said that so long after the event he thought that he was entitled to ‘get on with his life’, especially as he had been granted an operator’s licence in 2003 and had done nothing wrong since 1998.  He maintained that: “the bottom line is that there is no reason to question my repute since 1997”.  He said that he was not a bad person and that he had made one mistake and was still living with the consequences. He clearly disagreed with the findings made in relation to the ‘wheel nut incident’, which featured in the Public Inquiry in 2008, (see paragraph 9 above) and he referred us to an article about the causes of the loss of wheel nuts.  He was questioned by the Tribunal about his contention that he had never previously been made aware that he had been the subject of a finding of loss of good repute.  His attention was drawn to paragraph 60 of the decision of the Traffic Commissioner for Scotland, dated 24 April 2008 and to the fact that the Transport Appeal upheld the revocation of the Appellant’s operator’s licence on the basis that all the adverse findings made by the Traffic Commissioner for Scotland, including loss of good repute, were correct.  The Appellant apologised and said that he had “overlooked this” adding that he had not intended to mislead. He submitted that the Deputy Traffic Commissioner was wrong to keep going back to what had been said and done in the past and that, instead, he ought to have used his own judgment.

39.      In relation to financial standing the Appellant accepted that £53,000 was the price he hoped to achieve by selling his eBay stock, but that this was not a figure that he had actually achieved.  He also accepted that with an average sales figure of £2,000 per month it would take over 2 years to turn over his stock.  However he maintained that, if necessary, he would be able to raise £5,000 by selling the stock quickly.  He accepted that he was not in a position to show how much he made each month but maintained that his overall profit was £14,000-£15,000.  He submitted that the Deputy Traffic Commissioner was wrong to say that he had no assets against which to borrow, because he had overlooked the eBay stock.

40.      On the issue of his main occupation the Appellant accepted that he could have informed the OTC before the date of the Public Inquiry that because of mobility problems he had had to look at other ways of earning a living and had begun to trade on eBay.  He said that he had updated to ‘business status’ on eBay in May 2014 and that trading had become his main source of income.  He added that he had been trading for too short a period to have a Profit and Loss account.  He said that he was able to live, or at least to get by, on the amount made via eBay.

Discussion : Good Repute

41.      In relation to good repute the main point advanced by the Appellant is that in the absence of any significant conviction since 1997 and having been granted an operator’s licence in 2003 there could be no justification for finding that he is not of good repute.  We are satisfied that this submission cannot succeed.  In order to explain why it will be helpful to go back to the terms of the 1981 Act.

42.      Some of the specific requirements, which have to be met before a restricted PSV operator’s licence can be granted, are set out in s. 14ZB of the 1981 Act.  These include: (a) that the Applicant: “is of good repute (as defined in accordance with paragraph 1 of Schedule 3”.

43.      In our view it is important to consider the terms of paragraph 1(1) of schedule 3 as a whole.  For that reason we set it out in full:

“1. – (1) In determining whether an individual is of good repute, a traffic commissioner shall have regard to all relevant evidence and in particular to-

(a)        relevant convictions of his and of his employees and agents;

(aa) relevant fixed penalty notices issued to him and to his employees and agents; and

(b)   such other information as the commissioner may have as to his previous conduct, in whatever capacity, in relation to the operation of vehicles of any description in the course of a business”.

44.      The underlining of ‘shall’ and ‘all relevant evidence’ is ours in order to stress two initial points.  First, by using the word “shall” Parliament is making it clear that Traffic Commissioners are required, whenever they have to determine a question of good repute, to take all the relevant evidence into account.  There is no question of this being optional or discretionary they will, quite simply, be failing in their duty if they do not take all the relevant evidence into account.  Second, when the terms of this sub-paragraph are considered as a whole it is quite clear that the relevant evidence, in relation to good repute, is not confined to relevant convictions but covers a much wider range of conduct.

45.      In assessing the extent of the material which Parliament intended Traffic Commissioners to take into account the terms of paragraph 1(1)(b) are instructive.  This requires Traffic Commissioners to have regard, in particular, to the previous conduct of the person concerned, in whatever capacity, in relation to the operation of vehicles of any description in the course of a business.  In other words this extends relevance, for example, beyond the conduct of holders of an earlier operator’s licence and beyond the previous operation of PSVs.

46.      In our view what Parliament had in mind was a point that the Tribunal, (and before that the Transport Tribunal), has stressed on many occasions, namely that operator licensing is based on trust.  It is unrealistic to expect Traffic Commissioners and/or the DVSA and/or the Police to monitor the degree of compliance with the operator licencing regime on the part of every operator, throughout every hour of every day during which they hold an operator’s licence.  Instead Traffic Commissioners must be able to trust operators to comply with all the requirements of the operator licencing regime and other operators must trust their competitors to do so in order that all operators compete on a level playing field.  Compliance with the operator licencing regime makes an important contribution to the safe of operation of PSVs, (and HGVs).  It follows that there is an important public interest in ensuring that a high level of compliance is achieved.

47.      In our judgement the terms of paragraph 1(1)(b) provide a clear indication that the initial expression “all relevant evidence” includes, amongst other things, any evidence tending to show that an applicant for an operator’s licence or the holder of an operator’s licence either can or cannot be trusted to operate in compliance with the operator licencing regime.  If an applicant for an operator’s licence fails to satisfy the Traffic Commissioner that he or she can be trusted to operate compliantly or if it appears to a Traffic Commissioner, who has called an operator to a Public Inquiry, that the operator cannot be trusted to operate compliantly, we find it difficult to envisage circumstances where that person would, nevertheless, be of good repute.

48.      Given the extent of the material that a Traffic Commissioner is entitled to take into account in assessing the question of good repute we are satisfied that not only was the Deputy Traffic Commissioner entitled to take into account all the matters to which he referred he was required by the terms of paragraph 1(1) to do so.  At paragraph 31 above we have summarised the detailed findings made by the Deputy Traffic Commissioner in relation to good repute.  We are satisfied that those findings were justified by the material before the Deputy Traffic Commissioner and that, in particular, he was required by the terms of paragraph 1(1) to take into account the past history.  We agree with the conclusion that the Appellant had been unable to show that he had really put his past behind him.  In our view two of the Deputy Traffic Commissioner’s conclusions are especially important in relation to this point.  First, the Appellant’s reaction to being disqualified was to continue to operate behind the front provided by the operator’s licence held by Mrs Mason and Mr Thompson, trading as Access Coach Hire. In our view this demonstrated contempt for rather than a willingness to comply with the licencing regime.  Second, the Appellant’s continued insistence, in relation to important findings made against him that he was right and the findings were wrong, suggests a person in denial rather than a person intent on mending their ways and operating compliantly in the future.

49.      In our view the Deputy Traffic Commissioner approached the question of good repute with great care.  He took the trouble to set out detailed findings all of which appear to us to be justified by the evidence before him.  At the end of that process he concluded that it was unlikely that the Appellant would operate compliantly in the future.  While he did not state expressly that he could not trust the Appellant to operate compliantly we have no doubt that that, in effect, is the conclusion he reached.  As a result he stated quite clearly that he did not find the Appellant to be a man of good repute.  In our view the approach of the Deputy Traffic Commissioner cannot be faulted and none of the reasons advanced by the Appellant are sufficient to undermine the finding that the Appellant is not of good repute.  To remove any room for doubt in the Appellant’s mind we expressly uphold the finding that he is not of good repute for the purposes of PSV operator licencing.

Discussion : Financial Standing

50.      The Deputy Traffic Commissioner gave four reasons for concluding that the Appellant had failed to satisfy him that he met the requirement to be of appropriate financial standing.  We have set them out at paragraph 33 above.

51.      We agree with the conclusion that the bank statements did not show the consistent availability of the £3,100 required to demonstrate financial standing.  While we accept the Appellant’s explanation that he could make better use of the money by using it to buy stock to sell on eBay we are concerned by the implications.  It seems to us that the Appellant treated the money as being of use both to the business that he hoped to run if granted an operator’s licence but also as working capital for his eBay business.  In our view that is not an acceptable approach to meeting the requirement to be of appropriate financial standing.

52.      While we agree that the Appellant provided no clear evidence to show that he was the person dealing on eBay under the name of ‘CoachDriver 1956’ it seems to us that this concern on the part of the Deputy Traffic Commissioner is weakened by the fact that this is also the Appellant’s email user name.  In our view it is clear that the person dealing with the OTC by email after the Public Inquiry was indeed the Appellant.  On its own this point is not sufficient to show that the finding that the Appellant had failed to satisfy the requirement to be of appropriate financial standing was plainly wrong.

53.      We agree with the Deputy Traffic Commissioner that the absence of any form of Profit and Loss account in relation to eBay trading and the absence of any evidence as to the saleability of the stock made it impossible to assess the extent to which eBay trading could assist in meeting the requirement to be of appropriate financial standing.  In our view the Appellant’s approach, of simply pointing to the value of his stock currently available for sale on eBay, was too simplistic and failed to take into account the factors that govern the question of using physical assets, rather than money, when seeking to meet the requirement to be of appropriate financial standing.  These factors were identified and considered in paragraphs 18-22 of the Tribunal’s decision in appeal T/2012/17 NCF (Leicester) Ltd [2012] UKUT 271 (AAC).  In our view there was no evidence to show how quickly or easily the remainder of the stock could be sold, there was no evidence to show what revenue could be generated on such a sale, there was no evidence as to the net profit on such a sale and, given that the Appellant had said that he was able to ‘manage or at least get by’, in the sense of meeting his everyday living expenses there was no evidence that, if necessary, there would be enough money left over to meet the continuing requirement to be of appropriate financial standing.

54.      The Appellant has challenged the finding that he had no assets against which to borrow money by pointing to the value of his eBay stock.  While we accept that the Deputy Traffic Commissioner did not mention the value of the eBay stock in the context of this point we question whether anyone would lend on the strength of assets which were up for sale on eBay in circumstances in which they might be sold at any moment.  There was certainly no evidence before the Deputy Traffic Commissioner that these were assets that could be used as collateral for a loan.

55.      When all these points are taken into account we are satisfied that the Deputy Traffic Commissioner was correct in concluding that the Appellant had failed to satisfy the requirement to be of appropriate financial standing.

Discussion : Main Occupation

56.      In paragraph 32 above the Deputy Traffic Commissioner gave three reasons for concluding that he could not be satisfied that the operation of a vehicle adapted to carry more than 8 passengers would not be the Appellants main occupation.

57.      We agree with the Deputy Traffic Commissioner that Phoenix Travel was little more than an incipient business idea and that there was no evidence that it had produced any substantial income.  In our view that finding effectively means that Phoenix Travel could not, at the time of the Deputy Traffic Commissioner’s decision, be the Appellant’s main occupation.

58.      In any event the Deputy Traffic Commissioner concluded that he could not trust the Appellant, given his past history, to keep Phoenix Travel and a coach hire business, operating under a restricted licence, quite separate.  We share the Deputy Traffic Commissioner’s concern that granting a restricted licence would probably have the effect of enabling the Appellant to operate in a way which required a standard licence, while hiding behind the veneer of respectability conferred by the restricted licence.

59.      The Deputy Traffic Commissioner rejected the suggestion that the Appellant’s main occupation was trading on eBay.  His reason was that he was not satisfied on the evidence that that the Appellant’s net income from eBay was sufficient to enable him to support himself.  That reason was disputed by the Appellant, who contended that his income from eBay was sufficient to meet his needs. Nevertheless the Deputy Traffic Commissioner and the Tribunal only had the Appellant’s word for this in circumstances where it should have been possible for the Appellant to produce an interim Profit and Loss account.  In the absence of any independent confirmation that all the relevant costs, including some allowance for replacing stock, had been taken into account we can see no justification for reversing this finding.

Conclusion

60.      The Deputy Traffic Commissioner gave very detailed consideration to this application.  His decision runs to 33 pages.  While much of the decision summarises the history of the Appellant’s involvement with operator licencing the last 7 pages set out the Deputy Traffic Commissioner’s findings and the decision itself.  In our view it is a carefully reasoned and well-justified decision.  For the reasons we have given above we have no hesitation in upholding the decision on all the grounds on which it was reached.

61.      For all these reasons the appeal is dismissed.

 

 

Michael Brodrick

 

 

His Hon. Michael Brodrick,

Judge of the Upper Tribunal, President of the Transport Tribunal.

18 August 2015