Operator's License Revocation Upheld by Upper Tribunal

OUTCOME: Dismissed

[2019] UKUT 95 (AAC)

Appeal No. T/2019/01

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IN THE UPPER TRIBUNAL Appeal No. T/2019/01

ADMINISTRATIVE APPEALS CHAMBER

(TRAFFIC COMMISSIONER APPEALS)

ON APPEAL from a DECISION of a DEPUTY TRAFFIC COMMISSIONER made on 6 December 2018.

Before: Mr M Hemingway: Judge of the Upper Tribunal

[NAME]: Member of the Upper Tribunal

Mr L Milliken: Member of the Upper Tribunal

Appellants: [redacted]

Attendances: None

Heard at: [ADDRESS] [POSTCODE]

Date of Upper Tribunal Hearing: 12 March 2019

Date of Decision: 20 March 2019

DECISION OF THE UPPER TRIBUNAL

The appeal is dismissed.

Subject matter:

Good repute: Professional competence: Disqualification.

CASES REFERRED TO:

[COMPANY] and [NAME] v Secretary of State for Transport [2010] EWCA Civ 695

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REASONS FOR DECISION

Introduction

1. This is an appeal to the Upper Tribunal brought by [COMPANY] (“[NAME]”) and [NAME], who is its sole director, from a decision of a Deputy Traffic Commissioner (“DTC”) made on 6 December 2018 following a Public Inquiry (“[NAME]”) held on 3 December 2018. The DTC revoked the standard national licence held by [NAME] and disqualified [NAME] from holding an [NAME]’s licence or from being a director of a company that does, for a period of two years.

The background

2. [NAME] was granted its licence on 15 February 2012 the terms of which authorised it to operate two vehicles and one trailer. In January 2017, the Office of the Traffic Commissioner (“OTC”) wrote to it requesting certain financial information. That led to an exchange of communications which did not reassure the OTC that [NAME] had appropriate financial standing. Whilst that matter was being looked into the OTC received a letter from one [NAME] (“[NAME]”) who was recorded on the licence as having been its transport manager since September 2015. However, he indicated in his letter that he had only held that post for a period of approximately six weeks and that he had then left the post having informed [NAME] of his intention to do so. He explained that he had been told that [NAME] would tell the OTC of this development so that his name would be removed from the licence and that, until recently, he had simply assumed that it had been.

3. The OTC, in light of the above, was concerned because the information now before it as supplied by [NAME] suggested [NAME] might have been carrying on business without a transport manager at all since a date in 2015. So, the OTC wrote to [NAME] and [NAME] responded by applying, on 29 September 2017 to have one [NAME] (“[NAME]”) added to the licence as transport manager. It followed that up with an email asserting “[NAME] was our Transport Manager for the time until [NAME] was nominated”. So, there was a clear conflict between [NAME]’s assertion he had ceased to be the transport manager towards the latter end of 2015 and [NAME]’s implied contention that he had been so employed until September 2017. To state the obvious, that is quite a difference.

4. As a result of the above concerns it was decided to call [NAME] to a [NAME]. In its “call up” letter of 9 October 2018 the OTC indicated its specific concerns, at that stage, revolved around financial standing, and the transport manager issue. [NAME] was also called to the [NAME].

Relevant legislative provisions in brief

5. Under section 2 of the Goods Vehicles (Licensing of Operators) Act 1995 (“the 1995 Act”) a person shall not use a goods vehicle on a road for the carriage of goods for hire, reward, or in connection with any trade or business carried on by him/her, unless that person possesses an [NAME]’s licence. Section 13A sets out some requirements which an [NAME] must meet not only when a licence is sought but throughout its currency. Included are requirements that such an [NAME] is of good repute; has appropriate financial standing; and is professionally competent (see section 13A(2) (b), (c) and (d). As to professional competence, Schedule 3 to the 1995 Act links a company’s professional competence to that of its transport

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manager “a company satisfies the requirement as to professional competence if, and so long as it has a transport manager…who…is of good repute and professionally competent”. Section 27 states that a Traffic Commissioner shall direct that a standard licence be revoked if at any time it appears to him/her that the licence holder no longer satisfies the requirements of section 13A(2). Section 28 confers a power on the Traffic Commissioner to order that the holder of a licence revoked under section 27 be disqualified either indefinitely or for such period as the Traffic Commissioner sees fit, from holding or obtaining a licence.

The Public Inquiry and the Deputy Traffic Commissioner’s decision

6. The [NAME] was originally convened on 1 November 2018. [NAME]’s sole director [NAME] was in attendance and he and [NAME] were represented (by the same representative). However, neither [NAME] nor [NAME] were in attendance and understandably, that was regarded by the DTC as being unsatisfactory. So, the [NAME] was adjourned and reconvened on 3 December 2018. On that occasion [NAME], his brother (as a witness), and [NAME] were in attendance. [NAME] and [NAME] were once again represented. [NAME] did not attend and the DTC was informed that he had decided he no longer wished to be nominated as [NAME]’s transport manager. No alternative candidate was put forward.

7. One of the key issues for the DTC was the conflict in the evidence as to when [NAME] had ceased to be [NAME]’s transport manager. As to that, the DTC had the benefit of hearing oral evidence from [NAME] and from [NAME] and [NAME]. Having heard that evidence he resolved the conflict in a way which was unhelpful to [NAME] because, essentially, he accepted that [NAME] had left [NAME]’s employ at the time he said he had. He explained his reasoning as to that at paragraph 11 of his decision of 6 December 2018. Put simply, he concluded as he did because [NAME] had been able to produce bank statements showing payments being made to his bank account in relation to his employment from May 2015 but not after 2015, and because he found [NAME]’s contention that [NAME] had been working without remuneration for a period of over two years prior to the nomination of [NAME] to be implausible. The DTC observed “It is fanciful to suggest that a professional transport manager would undertake those duties at the premises of a former employer for over two years without any remuneration, meetings or discussions with [NAME]. The proof of payments made to Mr [NAME] in 2015 adds weight to his version of events. The evidence given by [NAME] and his brother is not credible”.

8. The DTC, having made the above finding, took the view that the consequences for [NAME], and indeed for [NAME], were serious. That is because, as he explained at paragraph 12 of his decision, it followed that not only had there been a period of some 27 months when [NAME] had been conducting its business without a transport manager but it also followed that [NAME] had been lying to him. That caused the DTC to decide he was dealing with an [NAME] that could not be trusted such that it ought not to be permitted to continue in business and, indeed, deserved to be put out of business. The DTC concluded [NAME] had lost its good repute, was no longer professionally competent due to the lack of a transport manager and did not, on the evidence, have appropriate financial standing, though it is fair to say the DTC attached much more weight to the first two concerns than to the third one.

9. In light of the above findings, the DTC decided to revoke [NAME]’s licence. He then turned to the question of the possible disqualification of [NAME]. He expressed the view,

[2019] UKUT 95 (AAC)

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based on the above findings, that disqualification would be “appropriate and proportionate” and disqualified him for a period of two years. He pointed out that he was unable to disqualify [NAME] who, of course, had not been a director, but said he would place a note about him on the record so that any application for a licence he might make would be referred to a [NAME].

The appellant’s grounds of appeal to the Upper Tribunal

10. An appeal to the Upper Tribunal followed. It was asserted in the written grounds of appeal, in summary, that the decision to revoke and the decision to disqualify had been “harsh”. The grounds seem to argue that the DTC had been wrong to accept the evidence of [NAME]. [NAME] and [NAME] had been guilty of naivety but nothing more culpable than that. A lesser punishment would have been more appropriate.

The appellant’s non- attendance before us

11. Though the appeal was listed for an oral hearing the appellant did not attend and was not represented. That was no surprise because in answering a standard questionnaire asking about his intentions which he had sent to the Upper Tribunal shortly prior to the hearing date he had said he would not attend and would not be represented. He did not explain why not and he did not indicate he would like the appeal to be relisted on a different date. That meant, in fact, that the only attendees at the hearing were the Upper Tribunal panel members and our clerk.

Why we have decided to dismiss this appeal

12. Paragraph 17(1) of Schedule 4 to the Transport Act 1985 provides:

“The Upper Tribunal are to have full jurisdiction to hear and determine all matters (whether of law or of fact) for the purpose of the exercise of any of their functions under an enactment relating to transport”.

13. The Upper Tribunal’s jurisdiction was examined by the Court of Appeal in [COMPANY]. and [NAME] v Secretary of State for Transport [2010] EWCA Civ 695. The court applied [NAME] and ors v Secretary of State for the Home Department [2004] EWCA Civ 56, where [NAME] LJ held:

“44….The first instance decision is taken to be correct until the contrary is shown…An appellant, if he is to succeed, must persuade the appeal court or tribunal not merely that a different view of the facts from that taken below is reasonable and possible, but that there are objective grounds upon which the court ought to conclude that a different view is the right one…The true distinction is between the case where the appeal court might prefer a different view (perhaps on marginal grounds) and one where it concludes that the process of reasoning, and the application of the relevant law, require it to adopt a different view. The burden which an appellant assumes is to show that the case falls within this latter category”.

14. Part of the rationale for the above is that the material before what is now the Upper Tribunal will consist only of the documents placed before a Traffic Commissioner and the transcript of the evidence. The Upper Tribunal will not have the advantage of hearing the parties and any witness giving evidence so as to enable it to assess credibility both from the words spoken and also the manner in which the evidence was given.

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15. Given the appellants non-attendance, we considered whether we ought to adjourn the proceedings. However, no application for a postponement or an adjournment had been made. [NAME] nor [NAME] had indicated any wish to further actively participate in the proceedings, the written grounds of appeal having been provided. We had no reason to think if we did adjourn that the position regarding attendance or representation would be any different at any reconvened hearing.

16. The DTC had found, as noted above, that [NAME] had continued to remain in business without a transport manager for a period of 27 months. It had not notified the OTC that [NAME] had left its employ in 2015. As we say, the grounds seem to challenge the correctness of the DTC’s finding as to that. However, the DTC gave cogent reasons for concluding that [NAME] had left towards the latter end of 2015. The alternative was to simply believe that he had worked without payment for in excess of two years and it is readily understandable absent something exceptional (and nothing exceptional had been offered by way of explanation) that the DTC decided that [NAME], as a professional transport manager, would not have done that. So, on the DTC’s findings which we conclude are sound and certainly not plainly wrong, [NAME] had chosen to carry on without a transport manager and, therefore, without professional competence knowingly for a lengthy period.

17. The DTC found that [NAME] and indeed his brother had sought to dishonestly mislead him. We are unable to conclude that that finding was plainly wrong or anything approaching it. It followed logically from the finding that [NAME] had left [NAME]’s employ in 2015. [NAME] and [NAME] must have known there was no transport manager in place after 2015. That sounds like a statement of the very obvious indeed but we think it worth making.

18. [NAME] nor [NAME] personally have said or done anything to demonstrate, in this appeal to the Upper Tribunal and against the background of the above findings, that the DTC was wrong in deciding that [NAME] could not be trusted in the context of compliance with the terms of the licensing regime. It has been said that the decision to revoke and the decision to disqualify was too harsh (we suppose a lawyer might say disproportionate) but against a background of knowing non-compliance and dishonesty at the [NAME] we simply cannot agree. As to the disqualification of [NAME], the DTC approached matters correctly. He did not disqualify as a form of reflex action simply because the licence had been revoked. He did not say a great deal about the decision to disqualify but, of course, the conduct which had led to revocation was really the conduct of [NAME] as the sole director so that conduct was directly relevant to disqualification too. We cannot see that the DTC, having made the findings he did, was plainly wrong to disqualify nor that his selection of the period of disqualification was plainly wrong either. There is no misdirection or misapplication of the law and no procedural unfairness. There is nothing in the material before us nor in any argument put to us which impels us to reach a different conclusion.

Conclusion

19. This appeal to the Upper Tribunal is dismissed.

M R Hemingway

Judge of the Upper Tribunal

20 March 2019