Neutral Citation Number: Applied for Appeal No.  T/2015/50

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of

Kevin Rooney, Traffic Commissioner

for the North East of England dated 16 June 2015

 

 

 

Before:

Her Honour Judge J Beech, Judge of the Upper Tribunal

Leslie Milliken, Member of the Upper Tribunal

Michael Farmer, Member of the Upper Tribunal

 

 

Appellant:

 

 

Ibrar Anif trading as Local Minibus Travel

 

 

Attendances:

For the Appellant: In person

 

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

Date of hearing: 13 October 2015

Date of decision:  16 October 2015

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

 

IT IS HEREBY ORDERED that the appeal be DISMISSED with immediate effect

 

SUBJECT MATTER:-  Application for restricted PSV licence; whether Appellant satisfies the primary occupation requirements contained in s.13(3)(b) of the 1981 Act; the Appellant’s likely compliance with the rules and regulations.

 

 

 

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

 

 

REASONS FOR DECISION

 

 

1.            This is an appeal from the decision of the Traffic Commissioner for the North East of England (“TC”) made on 16 June 2015 when he refused the Appellant’s application (“Mr Anif”) for a restricted PSV operator’s licence under ss.13(3)(b) and 14ZC(1) of the Public Passenger Vehicles Act 1981 (“the Act”). 

 

Background

 

2.            The factual background to the appeal appears from the documents, the transcript and the TC’s written decision.  By an incomplete application received on 26 January 2015, Mr Anif applied for a restricted PSV operator’s licence authorising two sixteen seat minibuses.  Mr Anif’s trading name was to be Local Minibus Travel and his nominated operating centre was the forecourt of his family home in Middlesbrough. His nominated maintenance provider was M&M Workshops with a preventative maintenance inspection interval of eight weeks.  His primary occupation was with On:Time Accident Claims Limited. 

 

3.            In response to a request for further information, the Office of the Traffic Commissioner (“OTC”) received an email from Mrs Beverly Brown, the Transport Manager for Local Minibus Hire Limited which held a standard national PSV licence.  The email provided the registration number of the minibus that Mr Anif currently owned and a PMI inspection sheet was enclosed.  The email went on:

 

“.. once the licence is granted a maintenance board will be produced to show the exact dated (sic) when the maintenance is due to be completed along with the expiry of calibration certs and mots.  I will endeavour to get the remaining items on your list over to you within the next few days could you please send another statutory declaration across for completion.  Should you require any further information please do not hesitate to contact (sic) me or Mr Anif”.

 

4.            In response to a further request to provide outstanding information, Mr Anif wrote in the following terms:

 

·         If the licence is granted the numbers of hours I intent (sic) to anticipate for each of the vehicles are approximately 15 hours per week maximum.

·         The vehicles will be used for airport transfers, day trips and contract work eg: school runs.

·         Ibrar Anif ... and Israr Gulzar ... will be driving the vehicles if the licences are granted.

In a separate letter, Mr Gulfraz Afsar, describing himself as the  Managing Director of On:Time Accident Claims (the stationery does not confirm that the operation is a limited company) advised that Mr Anif currently worked 31 hours per week “part time”.  Payslips demonstrated that Mr Anif was earning £150 per week.  Mr Anif also produced a maintenance agreement with Auto Enterprises (a different contractor to that nominated on the application form). 

 

5.            Mr Anif was called to a public inquiry for the TC to consider his application as a result of concerns about whether Mr Anif would  continue to meet the main occupation criteria and whether the operating centre was suitable.  Further, Mr Anif had failed to declare a conviction dated 14 November 2012 for an offence of exceeding the speed limit on a motorway for which he was fined £200 and his driving licence endorsed with 3 points and a further conviction dated 25 April 2013 for an offence of failing to give information as to the identity of a driver for which he was fined £155 and his driving licence endorsed with 6 points.  It was also noted that his proposed driver for the second minibus did not have any vocational entitlement to drive vehicles of that class.

 

6.            Prior to the hearing which took place on 16 June 2015, Mr Arif wrote to the OTC apologising for his “oversight” in failing to notify the TC of his convictions.  He had assumed that such convictions were automatically disclosed to the TC.  He assured the TC that such an omission would not happen again.  He enclosed a document entitled “Details of how you comply with laws regarding driver hours”.  It read:

 

“My drivers should comply with drivers hours.

They should take their breaks in their daily driving hours.

I will check how they take their rest periods properly.

I will keep a log book record it will assist me greatly if my driver has an accident, in that it will show me and keep me updated.

Drivers should know health and safety and must take 45min break.  My driver should responsibly plan there (sic) daily route and daily check before they start there (sic) shift.

Must report accident to me.

I will use a tachograph company to check my tachographs.

Me and my driver must complete periodic training after 5 years.

I will give a written disciplinary action to my drivers and also give them a warning if they do not comply with the rules and regulations”.

 

Mr Anif also enclosed another maintenance contract, this time with C&S Services based at Tees MOT Services, Scotts Road, Middlesbrough.  An unsigned, undated letter on the stationery of Tees MOT Services Ltd stated: “This is to certify that Ibrar Anif ... has rented space to park buses in the above yard”.  The letter gave no indication as to the identity of its author.  Photographs of a large parking area were enclosed. Finally, a photocopy of the driving licence of Israr Gulzar confirmed that he had passed the requisite vocational test to drive minibuses in October 2014.

 

7.            At the public inquiry hearing, Mr Anif appeared in person.  He explained to the TC that he would like to have a restricted licence as a “hobby”.  He had been driving for ten years and he had held his vocational entitlement since April 2014.  He had purchased a 17 seat minibus which was presently being lent to someone else.  His operating centre was going to be Tees MOT Services.  Mr Anif could not give the name of the person who had provided the parking confirmation referred to in paragraph 6 above.  He only knew him by his nickname “Charlie”.  Tees MOT Services would also be his maintenance contractor and he was renting two parking spaces from them.  The TC pointed out to Mr Anif that the most recent maintenance contract he had provided to the TC was in fact with C&S Services.  Mr Anif stated that he believed C&S was the same as Tees MOT Services.  He had decided not to continue with Auto Enterprises as his maintenance contractor because Tees MOT Services could provide him with parking and he was sure that he could provide the TC with an appropriately signed letter confirming his parking agreement with Tees MOT Services. 

 

8.            The TC then asked Mr Anif about his trading name.  He stated that he chose the name because it was already being used by his brother’s friend, Assun Pervaiz, who was trading as “Local Minibus Travel Durham.co,uk”. This operator had allowed Mr Anif to do the odd job for him and he also had a number of contracts.  The TC queried whether Mr Anif had connections with another entity Local Minibus Hire Limited which held a standard national operator’s licence.  Mr Anif denied that he did. It was pointed out to Mr Anif that Beverley Brown, who had submitted information on Mr Anif’s behalf was the Transport Manager for that firm.  Mr Anif denied that he was aware of that fact although he did not explain how it came to be that Mrs Brown appeared to overseeing his application for a licence.  He accepted that he knew the proprietor of the firm because he was “everywhere” but he did not know him personally.  It may be that if Mr Anif were to approach him, he might be offered some work with Local Minibus Hire Limited but he had not thought about it.  The TC then adjourned the hearing to undertake some checks on the various entities that had been mentioned.

 

9.            Following the short adjournment, Mr Anif was asked to clarify the circumstances in which he had applied for a restricted licence.  He had purchased the vehicle from the brother of Assun Pervaiz who had been driving it himself.  He did not know the seller’s name.  Mr Anif’s brother had purchased the vehicle on his behalf because he owed Mr Anif some money.  His sister, who had provided a statutory declaration in relation to finance, had undertaken research about minibus operation and she had helped him. 

 

10.         The TC then turned to the second vehicle.  Mr Anif explained that he had not purchased a second vehicle but Local Minibus Hire Limited had “volunteered” to help Mr Anif with obtaining a school contract.  When it was pointed out to Mr Anif that he had referred to Local Minibus Hire Limited, he said that he had become confused and that it was Local Minibus Travel which was going to help him.  Mr Anif had applied for a licence authorising two vehicles because his second driver wanted to drive minibuses but did not want to apply for his own licence.  Local Minibus Travel would help him get a school contract and Mr Anif would buy a second vehicle after that.  He then disclosed that in fact the second driver was a fellow employee at On:Time Accident Claims; Mr Pervaiz would apply for a school contract on Mr Anif’s behalf; that Mr Anif’s driving would be confined to one day a week, on his day off; if someone wanted to borrow the minibus when he was not using it, then they could do so, although he would make sure that they had the correct vocational entitlement to drive the vehicle and that they were fully conversant with drivers hours and daily checks; they would not be driving for him and if someone did rent the vehicle off him to undertake work, then his disc would remain in the vehicle.

 

11.         The TC then turned to the issue of primary occupation.  Mr Anif confirmed that he continued to earn £150 per week.  The TC was aware that a school contract could earn an operator £500 per week.  He advised Mr Anif that if he were to obtain a school contract, then that would become his primary occupation in monetary terms.  His business model did not make sense and he was prepared to lend the vehicle and disc to someone else.  The TC advised Mr Anif that his application would be refused and went on:

 

“If you want to make a fresh application, I would suggest go and get yourself some training about Operator’s Licences first and get a really clear picture in your mind about how your business is going to operate.  Have yourself a business, work out how you are going to do it legally. If you cannot because of the primary occupation, you need to apply for a Standard National Licence ...”

 

The TC also produced a written decision dated 16 June 2015 which set out his reasoning.  In addition to that set out in paragraph 11 above, the TC found that Mr Anif demonstrated a fundamental lack of knowledge of PSV operator licensing and that as a result the TC had no confidence that he would operate lawfully.  He was also concerned that Mr Anif had failed to establish that the proposed new operating centre was accessible to him and suitable, there being nothing before the TC to show that there was a contract in place for rental, the letter of permission being inadequate.

 

12.         Mr Anif appealed to the Upper Tribunal.  In his grounds of appeal, Mr Anif sought to explain his position in relation to the primary occupation rule.  Whilst he worked 31 hours per week, his pay was about to increase.  In relation to his application for two vehicles, he hoped that he could provide a family member with the chance of employment whilst giving Mr Anif the opportunity of gaining experience in business and gaining a reputation as an honest and reliable operator. Mr Anif described the TC as being “more than keen” to offer him a standard licence but that was not an option available to Mr Anif without holding a CPC qualification as he could not afford a Transport Manager. Mr Anif thought an “amicable option” would have been for the TC to offer Mr Anif a restricted licence so that he could prove his case.  Whilst he had said that he would allow Mr Parvaiz to use Mr Anif’s second vehicle, that was merely to obtain work as a sub-contractor on contract work so that Mr Anif could employ a family member.  In any event, he considered his prospect of being offered a school contract as being remote.  He wished to use the vehicles for airport and local runs until his business grew.  He was prepared to attend any operator courses required of him and he would be prepared to enlist the services of a transport consultant for the first six months to ensure that he was compliant.  He would provide an appropriately signed rental agreement for his operating centre.

 

 

Upper Tribunal Appeal

 

13.         At the hearing of his appeal, Mr Anif attended in person.  He produced a letter on the stationary of Tees MOT Services Limited dated 8 October 2015, which stated:

 

“This is to certify that Ibrar Anif has two bus parking spaces in the above yard”.

 

We advised Mr Anif that even if we could take the document into account (it having not been produced to the TC at the public inquiry) it was also insufficient to establish that he had access to a suitable operating centre which was the subject of a contractual arrangement between himself and the unidentified writer of the letter, the signature being illegible.  Mr Anif accepted that he had not appreciated what was required.

 

14.         Mr Anif was now able to identify the previous owner of the minibus currently in Mr Anif’s possession as Feisal Parvaiz.  He had started to attend an Operator Awareness Course and had completed three of the eight hour course.  He had now learnt about the rules on drivers’ hours and records and about operator licensing.  He was now aware that he could not lend his vehicle to someone else along with his disc and he was not going to do so.  He intended to complete the course and then attend a maintenance awareness course and ultimately to sit the CPC examinations. 

 

15.         Mr Anif submitted that he wanted to operate the minibus to earn some extra money and was willing to comply with all requirements of the licensing system.  He was hoping to provide holiday and sickness cover for other minibus operators who needed extra help when he was not working at his primary occupation.  He could not fulfil a school contract because he worked “9 to 5” four days a week.  He had asked for two vehicles because the application fee was the same for applications for one or two vehicles.  As for the primary occupation requirement, he advised that his income was about to rise to £805 per month which meant that he was more able to comply with the primary occupation requirements.  The vehicle was currently being used privately within his family which was large.  His uncle also held a restricted licence for a minibus and his father helped Mr Anif financially to run the vehicle because of its usefulness in transporting family groups. 

 

16.         Mr Anif then turned to the perceived links he had with other minibus operators.  He thought that the TC must have misheard or misunderstood him on this topic, probably because Mr Anif is not “good with words”.  He meant only to refer to Local Minibus Travel when giving evidence and it was that firm which would have helped him obtain a school contract. 

 

17.         Mr Anif reiterated that he “really wanted” to hold a restricted licence and that he would comply with any conditions attached to the licence.

 

 

The Tribunal’s determination

 

18.         We are satisfied that the TC’s decision cannot be faulted.  It is plain and obvious from the appeal bundle and the transcript, that Mr Anif had very little understanding, if any, about operator licensing and the requirements that he must satisfy in order to obtain a restricted PSV licence.  There were questions which remained unanswered about his connections with other operators and it is still unclear as to how it came to be, that the Transport Manager of Local Minibus Hire Limited came to have involvement with his application for a licence when Mr Anif denied any connections with that firm.  Further, the evidence as to the availability of a suitable operating centre remained unsatisfactory even when taking account of a recently produced letter purporting to be from Tees MOT Services Limited which had not been before the TC.

 

19.         Mr Anif’s submissions were largely based on matters which post dated the public inquiry, for example, his attendance on some of the modules of an operator awareness course; his intention to attend further modules and other courses; and his realisation that he could not operate under a restricted licence in the manner he had proposed to the TC.  None of that evidence is admissible for the purposes of this appeal which by law must concentrate on the position as at the date of the public inquiry.  Included in that evidence is Mr Anif’s assertion (without documentary evidence in support) that his income from his employment with On:Time Claims is to increase by a third.  Even if that were to be admissible, that does not negate the TC’s findings that if Mr Anif were to be offered a school contract (which was his stated intention at the public inquiry) that the primary occupation requirements would not be met. 

 

20.         The Tribunal advised Mr Anif at the conclusion of his appeal hearing, that his appeal would be dismissed.  We repeated the words of the TC set out in paragraph 11 above.  We advised Mr Anif of the concerns of Traffic Commissioners generally that individuals were being persuaded by established operators with restricted licences, who do not wish to hold a standard national licence with all of the costs involved, to apply for a restricted licence in their own name so that the licence can then be used by the established operator.  This is a prevalent and on-going problem and as a result, Mr Anif must be in a position to satisfy the TC  that he is not being used by such an operator to avoid obtaining a standard licence.  Having said that, Mr Anif impressed the Tribunal with his presentation and motivation.  But to say the very least, his application had been premature when even on his own admission he was not conversant with the relevant regulatory requirements.  If he can increase his knowledge of those requirements and produce a sound business model without any suggestion that others may be behind his application for their own reasons, then we see no reason why Mr Anif should not re-apply for a licence authorising one vehicle.  He should seek expert assistance and if necessary attend any public inquiry which may follow with such assistance. 

 

21.         We repeat that the TC’s decision cannot be faulted.  Neither the law nor the facts of this case impel us to come to a different view to that of the TC as per the test in Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport (2010) EWCA Civ 695.  

 

22.      The appeal is dismissed.

 

 

 

 

 

Her Honour Judge J Beech

16 October  2015