Operator Licence Revocation Appeal Allowed Due to Error of Law

OUTCOME: Allowed

1

IN THE UPPER TRIBUNAL Appeal No. UA-2023-001032-T ADMINISTRATIVE APPEALS CHAMBER NCN No. [2025] UKUT 60 (AAC) (TRAFFIC COMMISSIONER APPEALS)

ON APPEAL from a DECISION of a TRAFFIC COMMISSIONER taken on 30 June (or 6 July) 2023

Before:

E Mitchell, Judge of the Upper Tribunal [NAME], Specialist Member of the Upper Tribunal S Booth, Specialist Member of the Upper Tribunal

Appellant: [redacted]

Commissioner’s ref: OD2049063

Heard at: The appeal was decided on the papers without holding a hearing.

Date of decision: 14 December 2024

DECISION OF THE UPPER TRIBUNAL

This appeal is ALLOWED. The decision taken by the Traffic Commissioner on 30 June (or 6 July) 2023 to direct revocation of the Appellant’s operator’s licence involved an error of law. The Commissioner’s decision is SET ASIDE.

Subject matter: revocation of operator’s licence

[APPELLANT] UA-2023-001032-T [2025] UKUT 60 (AAC)

2 REASONS FOR DECISION

Background

1. On 6 July 2023, the [NAME] ([NAME]) informed the Appellant (the operator) that a Traffic Commissioner had directed revocation of its standard goods vehicle operator’s licence. The revocation direction was made on the ground that the operator did not have a designated transport manager, which is a mandatory ground for revocation of a standard operator’s licence under section 27(1) of the Goods Vehicles (Licensing of Operators) Act 1995.

2. The revocation direction of 6 July 2023 was preceded by a letter sent to the operator by the [NAME] on 14 June 2023 which (a) informed it that its proposed transport manager, [NAME] [NAME], was not considered suitable and (b) granted a seven day ‘period of grace’, authorising the operator to continue to operate despite not meeting mandatory regulatory requirements, so that it would have the opportunity to submit a satisfactory application for a longer period of grace. The revocation decision letter recounted that the [NAME] had received no response to the letter of 14 June 2023.

3. The operator appealed to the Upper Tribunal against the Traffic Commissioner’s revocation of its licence and the Commissioner granted a stay on the coming into effect of the revocation direction pending disposal of the operator’s appeal.

4. Following the operator’s appeal to the Upper Tribunal, Traffic Commissioner [NAME] reviewed the case papers and, quite properly, informed the Upper Tribunal that, in his view, the appeal should be allowed. Commissioner [NAME] written observations read as follows:

“3. As part of the recommendation made to me by a caseworker I was told that [NAME] was also a transport manager specified on the operator’s licence held by [COMPANY]. I was further told that there was an active ECMS case (a DVSA investigation in other words) regarding possible false driver records and that the case had been put forward for prosecution by the DVSA. I was also told that [COMPANY] were being referred to the compliance team at the [NAME] with a recommendation that they be called to a public inquiry.

[APPELLANT] UA-2023-001032-T [2025] UKUT 60 (AAC)

3 4. I therefore proposed to refuse the appointment of [NAME] [NAME] as the transport manager for this operator given what I have set out in paragraph 3 above which had, as far as I was aware at the relevant time, happened on her watch as the transport manager for [COMPANY].

5. The option was given for this operator to put forward a new transport manager instead of [NAME] [NAME].

6. The upshot was that no alternative person was put forward, no period of grace was granted and no request for a public inquiry was made. I therefore revoked the operator’s licence by my decision dated 30 June 2023 which came into effect on 5 July 2023.

What went wrong?

7. I was given materially incorrect information by the original caseworker…The reality was that there was no action taken by the DVSA against either [COMPANY] or its transport manager [NAME] and there was no recommendation that they be called to a public inquiry.

8. But for being given the materially incorrect information by the caseworker it is more likely than not that I would have granted the application to appoint [NAME] [NAME] as the operator’s transport manager and the operator’s licence would not have been revoked.

…My current position

11. I have already granted a stay on my own volition. From the facts I have set out above I do not oppose this appeal being granted…

12. I therefore invite the Upper Tribunal to allow this appeal.”

5. While the Traffic Commissioner records that his revocation direction was given on 30 June 2023, the decision letter sent to the operator was dated 6 July 2023.

[APPELLANT] UA-2023-001032-T [2025] UKUT 60 (AAC)

4 Proceedings before the Upper Tribunal

6. In the light of Traffic Commissioner [NAME] observations, the Upper Tribunal invited the operator to consent to this appeal being determined without a hearing (on the condition that, if the panel convened to determine the appeal on the papers was minded not to allow the appeal, there would be a hearing of the appeal). The operator accepted the Upper Tribunal’s invitation.

Conclusion

7. We decide that the Traffic Commissioner’s decision of 30 June 2023 (or 6 July 2023) to direct revocation of the operator’s good vehicle operator’s licence involved an error of law albeit not one of the Commissioner’s own making. The Commissioner failed to take into account relevant evidence (because it was not drawn to his attention) namely the correct factual position regarding DVSA involvement with [NAME] and [COMPANY].

8. We set aside the Traffic Commissioner’s direction revoking the operator’s restricted licence. We see no need to make any further order. If the Traffic Commissioner wishes to recommence regulatory action against this operator, for instance by issuing a fresh notice under section 27(2) of the Goods Vehicles (Licensing of Operators) Act 1995 and setting a time limit for rectifying a matter that would otherwise require the operator’s licence to be revoked, nothing in our decision is intended to limit the Commissioner’s freedom to do so.

9. The Appellant’s legal representative also seeks an order for costs against the Traffic Commissioner. Such an order would be a legal impossibility. The Traffic Commissioner is not a Respondent to an appeal made to the Upper Tribunal against the Commissioner’s decision (see the definition of “respondent” in rule 1(3) of the Tribunal Procedure (Upper Tribunal) Rules 2008). The Upper Tribunal’s power to order payment of costs only arises, in a road transport case, if a party has acted

[APPELLANT] UA-2023-001032-T [2025] UKUT 60 (AAC)

5 unreasonably or where costs are incurred as a result of any improper, unreasonable or negligent act or omission on the part of a party’s representative (see rule 10(3) of the 2008 Rules and section 29(4) and (5) of the Tribunals, Courts and Enforcement Act 2007; various other conditions also apply but we need not mention these here). Since the Traffic Commissioner is not a party to this appeal, the Upper Tribunal has no power to order the Commissioner to pay the Appellant’s costs.

E Mitchell, Judge of the Upper Tribunal Authorised for issue on 14 December 2024.

Given under section 37(2) of the Goods Vehicles (Licensing of Operators) Act 1995.