Appeal No.  T/2015/23

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of

Nick Jones, Traffic Commissioner

for the West Midlands of England dated 25 March 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:

 

 

Balwant Singh Uppal trading as Chauffeuring Services &

PCS Limos Limited

 

 

Attendances:

For the Appellant: No appearance.

 

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

Date of hearing: 13 October 2015

Date of decision:   21 October 2015

 

 

DECISION OF THE UPPER TRIBUNAL

 

IT IS HEREBY ORDERED that the appeal be DISMISSED with immediate effect and that the stay granted by the Traffic Commissioner is revoked with immediate effect.

 

SUBJECT MATTER:-  Operation of stretch limousines on an existing restricted licence and an application for a new licence by a linked entity; whether operation of such vehicles had complied and could comply with the requirements of s14ZC(1) of the 1981 Act; whether the good repute of Mr Balwant Singh Uppal had been lost. 

 

 

 

CASES REFERRED TO:-  Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport (2010) EWCA Civ 695; 2009/225 Priority Freight Ltd & Paul Williams; 2002/217 Bryan Haulage (No.2).

 

 

REASONS FOR DECISION

 

 

1.            This is an appeal from the decision of the Traffic Commissioner for the West Midlands (“the TC”) made on 25 March 2015 when he revoked the restricted PSV operator’s licence held by the First Appellant (hereinafter referred to as “Mr Uppal”) with immediate effect under ss.17(3)(aa) and 17(3)(b) of the Public Passenger Vehicles Act 1981 (“the Act”) and under s.17(3)(d) and s.14ZB of the Act.  At the same time, the TC refused the linked application for a restricted PSV operator’s licence made by the Second Appellant (hereinafter referred to as “PCS Limos”) under s.14ZB and s.14ZC(1) of the Act. 

 

Background

 

2.            The factual background to the appeal appears from the documents, the transcript and the TC’s written decision.  Mr Uppal was granted a restricted PSV operator’s licence in 2008 authorising one eight passenger seat vehicle.  His main occupation was the provision of stretch limousines for wedding hire which, by virtue of Part II of the Local Government (Miscellaneous Provisions) Act 1976, is exempt from the requirement to hold a private hire vehicle licence.  The use of the limousines for journeys other than those related to weddings must either be covered by a private hire licence or a PSV licence.  Mr Uppal’s local council (Warwick) had made it clear to him that it would not issue a private hire licence to a left hand drive vehicle or a vehicle which is more than five years old.  Mr Uppal’s limousines fall within both categories. 

 

3.            In November 2012, PCS Limos (the sole director being Mr Uppal) applied for a restricted licence authorising two eight passenger seat stretch limousines. It was indicated in the application that if the new licence were to be granted, Mr Uppal would surrender the licence he held in his name trading as Professional Chauffeuring Services. 

 

4.            Both Mr Uppal trading as Professional Chauffeuring Services and PCS Limos were called to a public inquiry because of concerns about connections between the two licences and concerns about whether PCS Limos would comply with the following requirements:

 

·         passengers were to be charged separate fares;

·         passengers must have been brought together by the driver or owner of the vehicle or by an intermediary who is paid for doing so;

·         the journey must have been advertised to the public so as to create a genuine opportunity for members of the public to be carried on the journey in question. 

 

Mr Uppal was notified that he was required to submit written evidence to the TC prior to the public inquiry of all journeys undertaken on his licence over the previous year, along with written evidence of any advertisements placed along with evidence of when and where the advertisements had been placed.

 

The first public inquiry

 

5.            The first public inquiry took place on 17 June 2013.   Mr Uppal, who was represented by Mr Bowling of the National Limousine & Chauffeuring Association, failed to provide the evidence required of him in the call up letter.  Ultimately, the Deputy Traffic Commissioner revoked Mr Uppal’s restricted licence and refused the application of PCS Limos.  That decision was the subject of an appeal to the Upper Tribunal and the appeal was allowed.  That decision (T/2013/63 Balwant Singh Uppal t/a Professional Chauffeuring Services and PCS Limos Limited) sets out the details of the public inquiry and the Upper Tribunal’s reasons for allowing the appeal.  It should therefore be read in conjunction with this decision.  Paragraph 26 contained the following passage:

 

“The First Appellant should not imagine, for one moment, that his troubles are over and that it will all be “plain sailing” from now on.  It seems to us that he needs to produce a schedule accounting for all the journeys made by the vehicle, backed up by the relevant documents.  It might be sensible to consult with the OTC (Office of the Traffic Commissioner) in order to ensure that the form of the schedule will provide all the information required.  The First Appellant would be well advised to consider whether his existing documentation will provide all the information required to show that the conditions set out in Schedule 1 to the 1981 Act will be met.  If necessary the documents should be amended because of the importance of showing that, if the application is granted, the Second Appellant will operate compliantly.  The First Appellant must also understand that any further failure to provide all the documents required is very likely to have fatal consequences both for the application for a new licence and for the continued existence of his own licence”.

 

The second public inquiry

 

6.            On 9 May 2014, Mr Uppal and PCS Limos were called to a public inquiry to be conducted this time by the TC.  The same request for information as set out in paragraph 4 was made.  The hearing took place on 6 June 2014 but as a result of Mr Uppal’s failure to produce any documentation, the TC adjourned the hearing after directing that documentation showing all journeys of the vehicle Mr Uppal operated between May 2012 to 6 June 2014 was to be provided to the TC by 15 July 2014.  The paperwork was to differentiate between wedding journeys and PSV journeys.  If the latter, the TC required proof of booking in compliance with the legislation and required evidence that each and every PSV journey had been advertised to the public at large, with evidence as to where and when and for how long the advertisement had been on display. 

 

7.            The adjourned hearing took place on 12 August 2014.  This time, Mr Bowling, who was to represent Mr Uppal, notified the OTC that he was unwell and unable to attend.  In view of the importance of being able to analyse the journeys undertaken by Mr Uppal’s vehicle as set out in a schedule of journeys which had been provided pursuant to the TC’s order, the TC concluded that he had no option but to adjourn the hearing to a date when Mr Bowling could attend.  The TC advised Mr Uppal that he must produce documentary evidence as previously requested to show that PSV journeys were compliant with the requirements. 

 

8.            The adjourned hearing took place on 16 December 2014.  Mr Bowling represented Mr Uppal and the company.  Whilst Mr Uppal had produced booking confirmations for all of the journeys listed on the schedule he had previously produced, only one PSV journey was listed.  The booking confirmation was for a journey in a Rolls Phantom style (Chrysler) limousine on 9 March 2012.  The pickup place was 19 Grayswood Drive, Leicester (a private residence) at 4.30pm. The “Lead Passenger” was a Mr Rakhar and the destination was Birmingham International Airport.  The “Total Price” for the journey was £40.00 per person and it was recorded that “this is a booking for 5 seats”. The document purporting to be an advertisement to the public at large was headed “Evington Travel & Insurance” with the address and telephone number of that travel agency.  The document stated that Evington Travel & Insurance “are pleased to announce that we are offering a special package which offers the following: Airport Transfers”.  Beneath a picture of a stretch limousine, the document went on “Five seats available on a limousine from Leicester to Birmingham International Airport (BHX) on 9^th March 2012 at 16.30 hours”. 

 

9.            The TC expressed the following concerns: firstly, whether an operator’s licence in the name of PCS Limos could justify an authorisation of two vehicles when the schedule produced by Mr Uppal only listed one journey which, he contended was a PSV journey; secondly, that the document described as an advertisement was a genuine advertisement to the public at large.  It was the TC’s preliminary view that the journey appeared to be a private hire journey with an invitation displayed in a travel agency window for others to join it.  He queried whether it could be said that the journey was genuinely available to the public. 

 

10.         The TC was told that PCS Limos had a fleet of wedding cars and that at present Mr Uppal’s business only undertook the occasional PSV journey.  It was contended that the advertisement for 9 March 2012 was a genuine one.  The advertisement had been displayed in a shop window in Leicester when Mr Uppal’s authorised vehicle was based in Warwick.  Mr Uppal had an arrangement with the travel agency and they would only get in touch with him if they wanted an “airport run”.  When he was contacted about the booking of the vehicle for five passengers, Mr Uppal explained to the agency that he could not accept it unless the journey was advertised.  Mr Uppal had consulted Mr Bowling about how to comply with the legal requirements and the advertisement had then been drawn up by Mr Uppal and sent to the agency and it was then placed in the agency window but no one else joined the journey.  Mr Uppal was asked whether the price agreed for the airport run for five passengers had been booked as a journey with separate fares.  He did not reply.  The TC commented that the chance of a person wishing to join the journey as a result of seeing the advertisement in the agency window was remote.  He queried whether it was a genuine advertisement.  Mr Uppal stated that the travel agency wanted the job; he thought he had “done it properly”; he had been told by the agency that advertisement had been displayed for about two or three weeks; he had been “pretty sure” that it was his telephone number shown on the advertisement whereas in fact it was that of the agency.  He confirmed that those who may have wished to join the journey would have had to make their way to 19 Grayswood Drive although they could have asked the agency for the car to pick them up at a different address.  It was pointed out that the advertisement states that five seats were available when on Mr Uppal’s evidence, only three would have been.  That was a mistake.  Mr Uppal acknowledged that the advertisement did not advertise separate fares (or indeed any fares); neither did it give the details of the pickup address.  Other advertisements had been displayed in the agency window offering Mr Uppal’s services generally but nothing had come of them.

 

11.         In his closing submissions, Mr Bowling accepted that the advertisement was not “perfect” as it did not give the pickup address or the fares although they could have varied depending upon where other passengers wished to be collected from.  He submitted that the travel agent was a paid agent as they would make a profit on the overall package of providing a holiday and transport to the airport.  He accepted that no commission was paid by Mr Uppal to the agents.  Mr Uppal did not want to operate his vehicle in a non-compliant way.  Mr Bowling had during the course of the hearing highlighted the difficulties in obtaining a private hire licence for stretch limousines.

 

 

 

The TC’s decision

 

12.         The TC’s decision was set out in his decision as follows:

 

“The model presented to me for compliance with PSV legislation for operating a small (up to eight passenger seat) vehicle was one whereby a travel agent selling a product or journey asked if the customers wanted a limousine to take them to (say) the relevant airport.  If the answer was affirmative then the details of date, time and pick up/drop off points would be advertised on a sheet in the window of the travel agent.  Theoretically this afforded an opportunity for the public to travel on the same journey.  The key issue was whether this was a genuine advertisement. 

 

... On considering the business model suggested I am of the view that the likelihood of members of the public taking up the opportunity to join another specific journey to run on the same date/time/pick up points/drop off points is extremely remote.  I consider that this is a relevant criterion in assessing the genuineness of an advertisement.  I am also of the view that the model described is that of a private hire arrangement and not a PSV.  ...

 

As far as the sole trader licence is concerned, the operator is unable to comply with the law because the business model on which he works is that of a private hire rather than a PSV.  Accordingly when I ask myself the Priority Freight question I answer in the negative.  I also confirm that the Brian Haulage question is answered in the positive because of the inability to comply with the law.  There is a need for the existing sole trader licence to be revoked. 

 

Turning to the application for a new operator’s licence for the limited company, for the same reasons, namely the inability to comply with the law, I make decision as set out (above) refusing the application...

 

From listening to and observing Balwant Uppal give evidence at the various hearings I am satisfied that he is an honest individual who, although he has run an operation which is not compliant with the law, that arises because of a lack of general understanding as to what is and what is not allowed by existing legislation...”

 

In making the orders that he did (see paragraph 1 above), he acknowledged the difficulties faced by operators of stretch limousines in obtaining private hire licences and he made some suggestions as to how Mr Uppal could obtain such a licence.

 

Upper Tribunal Appeal

 

13.         The grounds of appeal set out in the notice are as follows:

 

“We consider the finding of the Traffic Commissioner is flawed in respect of repute of Balwant Uppal trading as Professional Chauffeuring .. and PCS Limos .. and in view of the severe protracted nature of this decision (i.e. 15 weeks) we request that a fresh public inquiry be granted under a different Traffic Commissioner”.

 

14.         This appeal was originally listed for hearing on 20 August 2015.  On 3 August 2015, Mr Uppal applied for and was granted an adjournment having indicated that he was teaching someone to drive in the week of 17 August 2015.  The appeal was relisted for 13 October 2015.  At 1.36pm on 12 October 2015, Mr Uppal emailed the Tribunal requesting a further adjournment as he was feeling unwell.  No documentary evidence was provided in support of his application and in any event, Mr Bowling was named as Mr Uppal’s representative for the purposes of the appeal and no indication had been given that Mr Bowling would not attend.  Mr Uppal’s application was refused.  At 10.25am on the morning of 13 October 2015, the Tribunal received a telephone call from Mr Bowling informing the Tribunal that he had just been contacted by Mr Uppal.  He confirmed that Mr Uppal would not be attending the hearing and that he would not “dispute the decision when it is made”. Implicit in this message was an indication that Mr Bowling would not be representing Mr Uppal in his appeal.

 

15.         The appeal was called on at 12.45 on 13 October 2015 and in the absence of Mr Uppal and Mr Bowling, the Tribunal determined to deal with this appeal in their absence. 

 

The Tribunal’s determination

 

16.         The grounds of appeal do not appear to challenge the TC’s findings that Mr Uppal had been operating his stretched limousine in a manner which failed to comply with PSV licensing requirements.  For the avoidance of doubt, the Tribunal is satisfied that the TC’s analysis of the business model as put forward by Mr Uppal based upon a single journey and its documentation was plainly right.  It is an irresistible conclusion from the documentation and the evidence of Mr Uppal that on 9 March 2012, the limousine had been booked for a party of five persons for their own use.  The advertisement was merely a device to give an appearance that the public were at liberty to join the journey if they wished to do so.  The journey was in fact a private hire journey for which a private hire licence was required.  Further, the Tribunal has noted that within the bundle of booking confirmations for the vehicle produced by Mr Uppal, there are at least six journeys which were not listed in the schedule provided by Mr Uppal and that when those booking confirmation were examined, none appear to have any connection with wedding hire.  By way of example, on 16 February 2013, the vehicle undertook a journey from a private address in Wednesbury to Bicester Village Retail Outlet with a return journey four hours later.  The total price was stated to be “£100 per person, this is a booking for 3 seats”.  There is no evidence of advertisements in relation to any of the six journeys identified by the Tribunal. As a result of all of the evidence, the Tribunal is satisfied that the TC’s analysis of Mr Uppal’s operation of his stretch limousine as a PSV licence is flawless. 

 

17.         Criticism is made of the TC’s findings that Mr Uppal had lost his good repute.  Again, we are satisfied that there is nothing in this point.  Whilst the TC accepted that Mr Uppal was a man of integrity and honesty, the “bottom line” is that with or without the assistance and guidance of Mr Bowling, Mr Uppal has been operating a private hire vehicle without the relevant licence whilst attempting to persuade the TC that he is complying with his PSV licence requirements.  We are satisfied that those circumstances were sufficient to cause him to lose his good repute.

 

18.         Finally, criticism is made of the length of time that it took for the TC to issue his decision.  The grounds of appeal stated that the delay was in the region of 15 weeks.  It was in fact just over 14 weeks although that is still a long time even taking account of the inevitable delays resulting from the Christmas and New Year holidays.  The Tribunal has previously stated that decisions should be published within four weeks of the hearing unless there are some unusual features of the case (enormity of evidence for example) which would justify a longer delay.  However, we have also made clear that even when there is a delay in the publication of a decision, that will not give rise to a ground of appeal unless the delay has resulted in the ultimate decision being either wrong or unfair.  In this case, the grounds of appeal do not identify any adverse matters arising out of the delay and as a result, this ground of appeal must fail.

 

19.         To summarise, we are not persuaded that either the law or the facts of this case impel us to come to a different view to that of the TC either in relation to the revocation of Mr Uppal’s licence or refusal to grant a licence to PCS Limos as per the test in Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport (2010) EWCA Civ 695.  The appeal is dismissed.

 

 

 

 

 

Her Honour Judge J Beech

21 October 2015