PSV Licence Appeal Dismissed Due to Lack of Good Repute

[NAME] [2023] UKUT 150 (AAC)

IN THE UPPER TRIBUNAL Appeal No. UA-2022-001133-T ADMINISTRATIVE APPEALS CHAMBER

On appeal from the Decision of [NAME] for the West of England dated 14th July 2022

[NAME] Appellant

Before: Upper Tribunal Judge Her Honour Judge Beech

Specialist Member of the Upper Tribunal [NAME] Member of the Upper Tribunal [NAME]

Hearing date: 23rd May 2023

Representation: Appellant: [redacted] behalf of [NAME]

DECISION

The appeal is DISMISSED

Subject Matter: Application for an operator’s licence; Good repute

Cases referred to: Bradley Fold Travel & [NAME] v Secretary of State for [NAME] (2010) EWCA Civ.695.

REASONS FOR DECISION

1. This is an appeal from the decision of the [NAME] for the West of England (“[NAME]”) dated 14th July 2022 when he refused the Appellant’s

[NAME] [2023] UKUT 150 (AAC)

2 [NAME] application for a standard international public service vehicle licence for three vehicles under section 14ZA(2)(b) and schedule 3 of the Public Passenger Vehicles Act 1981 (“the 1981 Act”), as the [NAME] could not be satisfied that the applicant (“[NAME]”) was of good repute.

2. The background to this appeal can be found in the appeal bundle and is as follows. [NAME] has a significant regulatory history as a PSV operator and [NAME] manager. The early background was set out in paragraph 5 of the Upper Tribunal’s decision T/2020/12 [NAME]. [NAME] and his son [NAME] had been directors of [COMPANY] which had its licence revoked in June 2014 and both father and son lost their good repute and were disqualified under s.28 of the [NAME] Act 1985. Paragraph 5 records: “..The regulatory action was taken as a result of serious and sustained failings in maintenance systems including prohibitions (two being “S” marked), a poor MOT pass rate, failure to adhere to the declared [NAME] intervals and an ineffective driver defect reporting system. Little improvement had been affected despite two unsatisfactory maintenance investigations and an adjournment of the public inquiry. In addition, [NAME] had been unlawfully lending vehicle discs issued to his sole trader licence to [NAME] which continued despite notice being given to him that the lawfulness of his actions was in issue. In determining the appeals, the Upper Tribunal concluded that it was a “very bad case” and that the facts demonstrated a “wilful disregard of the need to ensure regulatory compliance” on the part of [NAME] and that the company was guilty of “serious, significant and sustained abuses of the licensing system”. 3. [COMPANY] was then granted a licence on 9th February 2015. As there were concerns that this may have been a “front” for the Hazells, a prohibition was attached to the licence that neither [NAME] nor his son play any part in the business whatsoever. The prohibition was removed in respect of both [NAME] and [NAME] in the latter part of 2016 and [NAME] became involved in the operation of the company.

4. As a result of his good repute having been restored, a PSV licence was granted to [COMPANY] on 1st December 2016. [NAME] was a director and also the nominated [NAME] manager. On 5th December 2018, a maintenance investigation was marked unsatisfactory and a preliminary hearing was conducted by the [NAME]. Having attached an undertaking to the licence, the [NAME] did not feel that a further public inquiry was necessary.

5. By 2018, significant concerns were raised about the maintenance systems of [COMPANY] along with other administrative concerns and as a result, the company and [NAME] were called to a public inquiry. The [NAME]’s decision was successfully appealed and a rehearing followed. [NAME] gave evidence on behalf of his son at the rehearing. In his decision dated 19th December 2019 (which was also the subject of appeal – T/2020/12 [NAME]), the [NAME] made significant adverse findings against [NAME] which were summarised by the Upper Tribunal in paragraph 52 of T/2020/12 in this way:

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3 [NAME] “In respect of [NAME], the [NAME] found him to be “a danger to the PSV industry as he is so grossly incompetent”. It was deeply worrying that he was both a director and a [NAME] manager of other entities. He should retire from the industry “at the first opportunity”. The [NAME] “struggled to identify” a [NAME] manager worse than [NAME]. He “completely missed the fact that having two separate safety inspections at different venues results in a loss of control. The chaotic maintenance system led to partial inspections days apart”. The [NAME] pondered how anyone could realistically consider the system to be satisfactory. Moreover, his “insulting and patronising comments to an experienced vehicle enforcement manager illustrates his inability to work effectively in regulatory regime where safety is important”. The [NAME] noted that [NAME] had applauded his son for “putting his head over the parapet” and complaining, making that comment soon after it was apparent to anyone with “an iota of awareness that the very personal criticisms of a vehicle examiner were wholly unjustified”. The description of the competition between mechanics was so ill judged that it “beggars belief”. The fact that in one breath he promotes competition between mechanics and in the next breath claims that that is not what he intended, merely illustrates his unreliability as a witness. He says what suits his purpose at the time”. Having watched and listened to [NAME] give evidence it was no surprise that a previous Upper Tribunal hearing led to “excoriating comments” about him. He appeared to have blotted out those criticisms, setting himself out as a model of compliance when the opposite was true”.

6. In March 2020, the DVSA conducted maintenance and record investigations at [COMPANY]. Both were marked as unsatisfactory. On 21st September 2020, the company and [NAME] appeared at a public inquiry conducted by [NAME]. He concluded having heard evidence from the DVSA officers and [NAME], that the company’s vehicles were not being kept in a fit and serviceable condition by a very wide margin; prohibition notices had been issued including “S” marked prohibitions for defects which should have been prevented by an effective maintenance regime. The [NAME] described the defects records on the prohibitions as “severe”. The [NAME] described [NAME]’s approach to maintenance as “old school” to a degree that it made him “dangerous”. He appeared to “lie at will” and “that he will say whatever he thinks appropriate to get him out of a spot”. [NAME] was reluctant to accept that he should have a second or alternative [NAME] manager and a concession to that effect was given with extreme reluctance. However, for that concession to be convincing, a new [NAME] manager designate should have been put forward prior to the hearing. The [NAME] concluded that [NAME] would not cede control. The same was true of a proposal that vehicle maintenance be outsourced rather than being undertaken by [NAME], the operator’s long-standing in-house fitter whose competence as a fitter was questioned by the [NAME].

7. The [NAME] concluded that [NAME] was “totally set in his ways” and that he mistakes experience for expertise. The [NAME] concluded that [NAME] was incapable of managing the [NAME] operation and so his good repute as [NAME] manager was forfeit and he was disqualified as a [NAME] manager until he had sat and passed the [NAME] manager certificate of professional

[NAME] [2023] UKUT 150 (AAC)

4 [NAME] competence examinations. The company’s licence was revoked. [NAME] and the company appealed the [NAME]’s decision but later withdrew both appeals.

8. On 11th May 2021, [COMPANY] submitted an application for a standard international PSV licence authorising 5 vehicles. [NAME] and his daughter were directors of the company and [NAME] was the nominated [NAME] manager. The application was considered at a public inquiry on 4th October 2021 by [NAME]. In his written decision dated 13th October 2021, the [NAME] set out his concerns: a) Given the strong criticisms of [NAME]’ effectiveness as a fitter, he was surprised to see [NAME] cited in the application as a second or alternative maintenance provider; b) During the public inquiry of 21st September 2020, [NAME]’s solicitor, [NAME], had pushed him to a great degree to accept that he would have a second or alternative [NAME] manager. However, [NAME] was again presenting himself as the sole [NAME] manager, albeit on a licence with fewer vehicles than the predecessor licence; c) [NAME] averred to the [NAME] that his MOT pass rate had previously been quite good, considering the age of his vehicles. However, paragraph 41 of [NAME]’s decision recorded that the MOT failure rate since December 2016 had been 46% compared to a national average of 7.5%. [NAME] had challenged this figure before [NAME], he had not produced any evidence to support the challenge; d) As for the roller brake tests, [NAME] told the [NAME] that all he had done in the past was to simply look at the printouts and if the vehicle had “passed” then he assumed that it was satisfactory. [NAME] stated that he could not really be blamed for failing to read the detail of the printouts properly, although he would be happy to take a course upon how to interpret the printouts. The [NAME] determined that [NAME]’s evidence ignored paragraphs 25 and 45-50 of [NAME]’s previous decision which made it clear that [NAME] was at severe fault and had demonstrated “in the most positive interpretation, a shocking lack of knowledge”; e) [NAME] told the [NAME] that he “didn’t think that anything much was wrong” with the compliance record of [COMPANY]. The overall impression he gave was that, despite some lip service to the need to take on board lessons learnt, he was still in denial about the extent of his past failings. No one reading [NAME]’s decision could possibly conclude that there was nothing much wrong with the company’s compliance and [NAME]’s performance; f) The [NAME] was further troubled when he heard that [NAME] had taken a two-day [NAME] manager CPC training course at the first possible opportunity after his disqualification which was conducted remotely. [NAME] had not specified either a timescale for re-taking the examination or any minimum requirement for training and learning in preparation for it, given the severe criticism of [NAME] that he was a) incompetent and b) that he wrongly considered himself competent, the [NAME] would have expected him to have realised the need to rebuild his

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5 [NAME] knowledge from the ground up and undertake some lengthier training. Seven to ten-day courses were available throughout the COVID period; g) A small point but one that was indicative of the failure to learn lessons, was the mobile phone policy which was included in the operator’s bundle. To put the [NAME]’s concerns into context, in May 2014, a [NAME] was involved in an accident in which two passengers were killed and seven seriously injured. The driver was convicted of causing death by dangerous driving and causing serious injury by dangerous driving and sentenced to five and two years imprisonment to run concurrently. A major contributing factor was that the driver had made a number of hands-free mobile phone calls during the journey, one of which lasted for eight minutes at the time of the crash. The company’s mobile phone policy read: “… Company policy is to ban use of handheld phones and microphones while driving. Drivers are recommended to switch off their phones before starting the engine”. The [NAME] found it “astonishing” that the company’s mobile phone policy did not explicitly prohibit such use.

9. The [NAME] gave [NAME] some credit for being prepared to give undertakings to meet his concerns by confining [NAME] to minor repairs and “beefing up” the mobile phone policy to prohibit hands-free as well as handheld sets. However, the [NAME] considered that he should not have had to seek such undertakings. He continued: “I consider that [COMPANY] and [NAME] having failed so catastrophically to run a compliant operation in the past, and which [NAME] having now lost his good repute as a [NAME] manager and been disqualified twice, the onus is heavily on the applicant to convince me that it deserves a third opportunity. For the reasons outlined above, I do not consider that it does. The fact that the licence application was originally for ten vehicles and had fitter [NAME] on a par with [NAME] does not convince me that [NAME] had in mind a radically streamlined and different operation from the outset. He has shown himself prepared to make concessions when asked to do so (eg the degree of [NAME]’s involvement, changes to the mobile phone policy) but it does not seem to have occurred to him to include them in his original plans. [NAME] also appeared to forget one of the changes offered: in his prior written submission he stated that only [NAME] would prepare vehicles for MOT, whereas at the inquiry he stated that both [NAME] and [NAME] would do this. The issue is not a trivial one, as [NAME] was so critical of the fact that [NAME] appeared incapable of preparing and keeping vehicles in a condition where they would consistently pass their MOT. Evidence was presented that [NAME] had gained IRTEC accreditation in April 2020, but the actual certificate was not available and in any case this had clearly not been enough to persuade [NAME] in November 2020 that all was well”. In the circumstances, the [NAME] was unable to conclude that [NAME] had re- established his good repute as [NAME] manager or that he or the company could be trusted to comply with the requirements relating to roadworthiness of

[NAME] [2023] UKUT 150 (AAC)

6 [NAME] vehicles were he to grant the application. The application was refused under s.14A(2)(b) and (d), 14ZA(3)(a) and 14ZC(1)(a) and (b) of the 1981 Act.

10. On the 8th April 2022, the company’s appeal against the above decision was dismissed by the Upper Tribunal.

11. On 3rd December 2021 (some two and a half months after [NAME]’s decision), [NAME] made an application in his own name for a standard international licence authorising three vehicles. The nominated [NAME] manager was [NAME] who was described as “internal” working six hours per week. [NAME] submitted: a) A letter from [NAME], Manager of [NAME] dated 14th July 2022 which was supportive of [NAME]. He confirmed that he had continued to be a member of the Confederation of [NAME] and had attended all regional and national meetings and compliance events. He also confirmed that [NAME] had attended a three-day [NAME] manager refresher course in January 2022. [NAME] found [NAME] to be attentive and engaged during the course; b) Reference from his chartered accountant, his insurance provider, the Okehampton District Community [NAME] Group, [NAME] and [NAME] all of which spoke positively of [NAME] as an individual and as an operator; c) A maintenance agreement, unsigned by [NAME] dated 15th September 2021, in the name of [COMPANY]. By paragraph 2(c), [NAME] agreed to “carry out all renewals and repairs authorised by the Operator”; d) A document entitled “[NAME]”, the last paragraph of which is in the same form as that set out in paragraph 8 g) above but with the word “recommended” struck out in pen and “must” written in pen underneath; e) An MOT history printout for vehicle [ID].

12. The application was considered by [NAME] at a public inquiry which took place on 14th July 2022. [NAME] attended along with [NAME] and [NAME]. Financial standing and stable establishment/operating centre were not in issue. 13. [NAME] told the [NAME] that he had been in business for 40 years. He was reasonably fit and healthy and he wanted to carry on in coach operation for “a little bit longer”. He had a lot of contacts in the industry and he continued to receive enquiries about coach hire. He did not want to be in business in a “big way”; it would be more of a hobby. He was passionate about passenger [NAME] and he did not want to be “kicked out”. He had premises and a couple of vehicles and a couple of historic vehicles. He had applied as a sole trader because he had previously operated for 30 years as such without a regulatory history and because, at the time of the application, the appeal against the decision of [NAME] was still outstanding and so a new

[NAME] [2023] UKUT 150 (AAC)

7 [NAME] application as sole trader diverted away from the history of [NAME]. It had been suggested to him that he nominate a different [NAME] Manager.

14. The [NAME] then heard from [NAME] who repeated the information he had provided in his letter. 15. [NAME] was then called. He told the [NAME] that he had spent 19 years operating a registered nursing/residential home. He had then purchased a sixteen seater minibus with a tail lift which was popular with the residents. He then applied for an operator’s licence and purchased a larger vehicle which he converted into a passenger vehicle. [NAME] had been his [NAME] manager. Once he had sold the residential home business in 2005/2006, [NAME] used the vehicle on school contract work. He then started driving large goods vehicles and then reverted to passenger vehicles. 16. [NAME] confirmed that he was aware of the background to the application which he described as “not pretty”. As [NAME]’s [NAME] manager, he would be in control of the key aspects of maintenance and compliance. Three vehicles would not require a huge amount of time, perhaps six to eight hours a week. He had a lot of experience in complying with regulations having operated in the care sector. He also had experience in employment law and health and safety. He had written a policy procedure book and undertaken risk assessments. If [NAME] did not do what [NAME] required him to do, then he would resign. But the obvious way of dealing with issues was by discussion. He would put his view into writing and keep a copy and if an issue was still not resolved, he would resign. [NAME] had asked for a contract of employment and [NAME] had used the [NAME] standard contract which was acceptable. It needed polishing up and a review by a solicitor, but the essential point was that there was a legal commitment on both sides. [NAME] would continue to drive for [NAME] but he was not financially dependent on the work. He would use TruTach analysis for drivers’ hours and he would use that for the working time directive requirements. He would be downloading the drivers’ cards every 28 days and the vehicle units every 90 days.

17. The [NAME] asked [NAME] why 90 days was important for downloading vehicle units. He thought that this was the limit of the memory function. He was not aware that this was the maximum limit set by EU Regulation 561/2006 and that every operator was required to put in place proper arrangements for managing drivers’ hours and that 90 days would rarely satisfy the requirements for a coach operation. [NAME] then asked the [NAME] what time limit he would recommend. The [NAME] informed him that it was the responsibility of the [NAME] manager to undertake a risk assessment to ascertain the correct limit.

18. The [NAME] then turned to the maintenance contract and highlighted that the contract was in the name of [COMPANY], not [NAME] and that it had appended to it, a [NAME] sheet for a [NAME] vehicle. [NAME] assured the [NAME] that [NAME] had said that it was “quite happy” to change the name on the contract. In response to questions put by the [NAME] said that he thought that the contract was for maintenance and rolling road tests. He did not appreciate that the contract was “loosely worded and optional” and that

[NAME] [2023] UKUT 150 (AAC)

8 [NAME] paragraph 29(c) only covered repairs as authorised by the operator. He appreciated that he would have to renegotiate the contract with care. The [NAME] advised that with [NAME]’s history of putting dangerous vehicles on the road, he would not approve the contract as it stood. 19. [NAME] then mentioned the MOT pass rate of [COMPANY]. He averred that in 2021, when he had vehicles to dispose of with MOT tests, he had eight straight passes and no failures. These did not show on the DVSA records because the vehicles were not covered by an operator’s licence. He acknowledged that the vehicles had not been in use but averred that when vehicles had been idle during the pandemic, there were a lot of defects once they were started up again.

20. In his closing remarks to the [NAME] accepted that at previous hearings, he had been reluctant to nominate an alternative or additional [NAME] manager but then approached [NAME] who had a lot of experience in a heavily regulated business (care) and had PSV and HGV experience. He seemed a suitable candidate for [NAME] manager. [NAME] did not want to simply drive for someone else. He had been his own boss for 40 years and he wanted to have something he could leave to his family. The family had always been involved in passenger [NAME] and he could not leave them a legacy if he simply drove for someone else. He hoped that the letters of reference helped to re-establish his good repute and in 40 years, there had never been a complaint from a customer or passenger. The fatal accident had had a devastating and traumatic effect upon him and whilst the accident was not maintenance related, he was not the sort of operator who would put a dangerous vehicle on the road because he was aware of the consequences. [NAME] then produced his mobile phone policy with the manuscript amendment. He was happy to adopt any wording that the [NAME] suggested and no company driver had ever been prosecuted for mobile phone use.

21. The [NAME] then retired to consider his decision. On his return to the hearing, he handed to [NAME] a document which showed that the company’s vehicles had not had eight straight MOT passes in 2021. His oral decision was as follows: “.. there’s considerable history, I’ve been out and retired and I’ve conducted the balancing exercise that I’m required to do. There are some positives in this application. I think [NAME] is a credible TM, and I’ll take what you say at your word. You’re applying for a modest operation, there’s outsourced inspections, finance and the operating centre are satisfied and I’ve seen references from customer and professional contacts. There are a number of negatives. There’s a considerable adverse history over at least ten years. You have been given chances before and haven’t come through, including by me in this room. [NAME] is relatively experienced as [NAME] manager (we note that this reads “inexperienced” in the written decision and that “experienced” must be an error) .. we saw that questions around drivers’ hours management and he detailed the maintenance contract. The maintenance contract itself is with the wrong entity and refers to defects being repaired at operator discretion but actually means we’re not much further forward than we were before. There’s no clear, comprehensive mobile phone policy, with only a

[NAME] [2023] UKUT 150 (AAC)

9 [NAME] manuscript amendment indicating prohibition of mobile phone useage, despite [NAME]’s comments in that regard and I adopt them as my own. And [NAME] you’ve been reluctant to embrace change and you haven’t demonstrated today that you’re a different person. And you refer to previous good history and it is far from that, in the papers we’ve seen failure rates of 43% and you consider that as acceptable and you still seem to think you’ve done nothing wrong. Despite the view now of four different Traffic Commissioners and two tribunal panels and the papers before me. And you told me that you had eight straight MOT passes last year and you didn’t, but this is a minor point. You refer to leaving a legacy but also this being a hobby. This is an application, the job is on you to prove that you’ve met the requirement of good repute and haven’t done so and I’m not putting my name to a licence to be somebody’s hobby, given the history that’s there”. The [NAME]’s decision was confirmed in writing on the same day.

22. At the conclusion of the hearing, [NAME] stated that he felt that he was being harshly treated. Whilst the [NAME] had stated that he did not like being told what to do, whenever he had been told to do something, he had done it. The [NAME] had told him to institute rolling road tests as part of his PMIs and he had. He was asked to take the [NAME] manager CPC examination again and he had. The appeal 23. By way of an Appellant’s Notice filed on 12th August 2022, [NAME] appealed. There was one ground of appeal: “The [NAME] placed indue (sic) weight on the Applicant’s regulatory history and insufficient weight on those steps taken by him to rehabilitate himself, so that the [NAME]’s decision to refuse the application was plainly wrong.” 24. At the hearing of the appeal, [NAME] was represented by [NAME] who produced a skeleton argument for which we were grateful. His global submission was that the [NAME] had given undue weight to [NAME]’s previous regulatory history and insufficient weight to his rehabilitation. [NAME] went through the [NAME]’s negative findings in turn and we respond point by point: a) the [NAME] relied upon [NAME]’s adverse regulatory history spanning at least ten years and determined that previous opportunities to re-enter the industry had ended badly for [NAME]. It was submitted that at least some consideration should have been given to the almost thirty years of “trouble free operation” enjoyed by [NAME] prior to 2012. [NAME] submitted that this was the approach taken in paragraph 21 of the Upper Tribunal’s decision dated 8th April 2022 (UA-2021-000358-T [COMPANY]. We do not accept this submission and repeat and adopt the Upper Tribunal’s determination in paragraph 21: the [NAME] was entitled to look at the more recent history as a more reliable guide as to what was likely to happen if the licence application was granted and the [NAME] did not err in failing to specifically refer to an earlier trouble-free period. That determination is equally applicable in this case.

[NAME] [2023] UKUT 150 (AAC)

10 [NAME] b) The [NAME] failed to give proper weight to the proposed appointment of [NAME] as [NAME] manager, which went to [NAME]’s rehabilitation and which plainly demonstrated that [NAME] had changed his ways and had taken on board previous findings that he was not fit to act as a [NAME] manager himself. We disagree. [NAME] may have finally accepted that any application he made for a licence whether on his own behalf or on behalf of [COMPANY], which nominated himself as [NAME] manager was doomed to fail and that he would have to nominate another, that on its own could not be taken as demonstrating that [NAME] had changed his ways. That could only be achieved by [NAME] accepting his considerable past failings as an operator and [NAME] manager and demonstrating that he was a changed man. Passing the CPC examination and nominating an inexperienced [NAME] manager upon the basis that he had considerable regulatory experience in the care sector was plainly insufficient. c) The reasons for finding that [NAME] was relatively inexperienced as a [NAME] manager were not grounds for finding that [NAME] could or would not exercise continuous and effective oversight of the licence particularly when the [NAME] found that [NAME] “presented as a credible TM”. [NAME] pointed to the comments made by [NAME] about [NAME]. He averred that the deficiencies in [NAME]’ knowledge on drivers’ hours management did not demonstrate a lack of experience to such a degree that it undermined his practical professional competence and as for the wording of the maintenance contract, the [NAME] himself accepted that the arrangement was “not unusual”. We are satisfied that there is nothing in this point. The [NAME]’s cautious approach to [NAME] was well founded bearing in mind that he was proposing to manage and oversee [NAME] as an operator. Throughout his numerous appearances before TCs and the Upper Tribunal, [NAME] had not presented as an individual who willingly followed guidance or instruction, contrary to [NAME]’s protestations at the end of the public inquiry. There can be no doubt that [NAME] is inexperienced as a [NAME] manager and his knowledge of drivers’ hours management was lacking. The [NAME]’s description of [NAME] as a credible witness is not inconsistent with the determination that he is inexperienced. What is obvious from the [NAME]’s judgment is that having found that [NAME] had been reluctant to embrace change and had not demonstrated that he was a changed individual, the nomination of [NAME] did not give him any comfort that [NAME] would operate compliantly in the future irrespective of [NAME] averring that he would resign if [NAME] did not follow advice and guidance. As for the maintenance contract, whilst it may not be unusual to find the same or similar wording in other maintenance contracts, in this case, the wording was wholly inappropriate and [NAME] should have appreciated that when reviewing the contract. Moreover, he should have appreciated that the contract was in the name of the wrong entity.

25. Turning then to the mobile phone policy, [NAME] submitted that the policy was unequivocal in its requirements by stating “Drivers .. must switch off their phones before starting the engine”. This, [NAME] submitted demonstrated

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11 [NAME]’s ability to adapt and it should not have been included as a negative feature. With respect to [NAME], his submissions miss the point. When the application of [COMPANY] came before [NAME], his comments about the mobile phone policy were clear and unambiguous. It is surprising to say the least that against that background, all that [NAME] had done with the policy was to make an amendment in manuscript. Whilst the [NAME] did not say so, we find that this demonstrated that [NAME] continued to pay lip service to regulatory compliance and health and safety. If that was not so, he would have taken the time and made the effort to ensure that the policy was re- written and in an acceptable format rather than submitting a copy of the policy with scribbled amendments. 26. [NAME] described as a “mistake”, [NAME]’s assertion that his vehicles had achieved eight straight MOT passes in 2021 but averred that this did not demonstrate that [NAME] was unable to see his own weakness (as stated in the [NAME]’s written decision). In fact, it demonstrated that with the nomination of [NAME], he had changed and that this was evidence of his rehabilitation. We do not agree. The bold and incorrect assertion demonstrated that [NAME] was prepared to make a statement to the [NAME] which was factually incorrect. He clearly had not made the appropriate enquiries before making the statement, which is surprising bearing in mind the findings of two TCs which cast doubt upon his openness and truthfulness. His failing demonstrated a cavalier approach towards the application process, the [NAME] and to regulatory compliance. 27. [NAME] has a significant and serious adverse regulatory compliance history. He does not accept his past failings and he did not impress the [NAME] as someone who now wishes to embrace change. We could not identify any evidence before the [NAME] which might have led him to conclude that [NAME] had regained his good repute and ought to be trusted with an operator’s licence.

In all the circumstances we are not satisfied that the [NAME]’s decision was plainly wrong in any respect and neither the facts or the law applicable in this case should impel the Tribunal to allow this appeal as per the test in Bradley Fold Travel & [NAME] v Secretary of State for [NAME] (2010) EWCA Civ.695. The appeal is dismissed.

Her Honour Judge Beech

Judge of the Upper Tribunal

3rd July 2023