Upper Tribunal Allows Appeal Against Transport Manager's Financial Standing and Repute Decision

[2019] UKUT 0403 (AAC)

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IN THE UPPER TRIBUNAL ADMINISTRATIVE APPEALS CHAMBER [NAME] No. T/2019/70

ON APPEAL from the DECISION of the [NAME] FOR THE WEST MIDLANDS TRAFFIC AREA ([NAME])

Dated: 16 October 2019

Before:

C.G. Ward

Judge of the Upper Tribunal [NAME]

Member of the Upper Tribunal [NAME]

Member of the Upper Tribunal

Appellant:

[redacted]

For the Appellant:

[redacted]

Field House, London EC4 Date of Hearing:

20 December 2019 Date of Decision:

20 December 2019

DECISION OF THE UPPER TRIBUNAL

The appeal is allowed.

The decision of the [NAME] dated 16 October 2019 is set aside.

The matter is remitted to a different [NAME] to hold a Public Inquiry and consider afresh.

The appeal was heard by the Upper Tribunal on an expedited basis with a view to providing clarity of outcome before the [NAME]’s decision was due to come into effect at 0001 on 21 December 2019 and before the commencement of

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2 the new school term in early January 2020. Reasons for the decision will follow at a later date.

C.G.Ward Judge of the Upper Tribunal Date: 20 December 2019

[2019] UKUT 0403 (AAC)

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Dated: 16 October 2019

Before:

C.G. Ward

Judge of the Upper Tribunal [NAME]

Member of the Upper Tribunal [NAME]

Member of the Upper Tribunal

Appellant:

[redacted]

For the Appellant:

[redacted]

Field House, London EC4 Date of Hearing:

20 December 2019 Date of Decision:

20 December 2019

DECISION OF THE UPPER TRIBUNAL

The appeal is allowed.

[2019] UKUT 0403 (AAC)

C.G.Ward Judge of the Upper Tribunal Date: 20 December 2019

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Dated: 16 October 2019

Before:

C.G. Ward

Judge of the Upper Tribunal [NAME]

Member of the Upper Tribunal [NAME]

Member of the Upper Tribunal

Appellant:

[redacted]

For the Appellant:

[redacted]

Field House, London EC4 Date of Hearing:

20 December 2019 Date of Decision:

20 December 2019 Date of Reasons:

3 January 2020

REASONS FOR DECISION OF THE UPPER TRIBUNAL

This appeal was heard on an expedited basis. By a decision dated 20 December 2019, the appeal was allowed, the decision of the [NAME] dated 16 October 2019 set aside, and the matter remitted to a different [NAME] to hold a Public Inquiry and consider afresh. The decision indicated that reasons would follow, and this document now provides those reasons.

Subject Matter

Public passenger vehicles; financial standing; loss of repute; proportionality; adequacy of reasons

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Cases referred to:

217/2002 [COMPANY] [NAME] v Department of Transport [2003] EWCA Civ 64 T/2020/52 and 53 [NAME] 104/2007 [NAME] t/a [NAME]

1. This is an appeal from the decision of the [NAME] for the West Midlands Traffic Area taken on 16 October 2019 and communicated by letter dated 18 October.

The Decision

2. In a decision given following a public inquiry, the [NAME] ruled that:

a. [NAME] had lost his good repute as transport manager and was disqualified from acting as such for an indefinite period, but could regain his repute by retaking and passing the transport manager CPC examination; and

b. [NAME] as [NAME] lacked financial standing and a transport manager of good repute and the [NAME]’s licence was revoked. The date for revocation was subsequently varied so as to be 0001 hours on 21 December 2019.

The previous history

3. The [NAME] had been in business for some 30 years and had held a standard public service vehicle [NAME]’s licence since (at any rate) 1993. Beyond a public inquiry in 1992, the reasons for which were not in evidence, there was no evidence of any significant regulatory action against him during the intervening period. In 2018 he had applied to vary his licence, which had previously provided for 40 vehicles, to 60 vehicles. There had been a maintenance investigation carried out by DVSA on 16 March 2018 resulting in a notice of shortcomings. The [NAME] (the same one as decided the present case) decided to hold a Public Inquiry. Its stated purpose was (p123):

“..to investigate these apparent shortcomings and to give you the opportunity to explain what you are doing to improve compliance with the rules and the fulfilment of the undertakings that were given at the time the licence was applied for and show evidence to support this. The [NAME] will then decide whether they can trust you to comply in the future, whether any action against your public service vehicle [NAME]’s licence is needed and, if so, what form that action might take. The [NAME] will also consider whether your application should be granted in full or in part.”

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4. By a letter dated 20 July 2018 (p134) [NAME] was informed of the following decision. I set it out in full, together with details of what ensued, as it provides valuable context for understanding the subsequent decision which is the subject of the present appeal.

“The decision on the [NAME]’s requested increase from 40 to 60 vehicles is held in abeyance pending provision by the [NAME] of an action plan which will set out what the [NAME] intends to do:

(a) to make sure that only drivers with a full D1 licence (no 101 restriction) and CPC can drive vehicles with more than eight passenger seats; (b) to improve record keeping of reported vehicle defects and rectification of those defects; (c) to improve both the quality of the regular safety inspection records and the organisation and retention of those records; (d) concerning regular checking of driver entitlement.

If I am satisfied with the action plan, I am likely to [approve] the requested increase, although with the warning that the [NAME] must do much better in future to make and keep records of vehicle maintenance, driver (or mechanic) checks of vehicles and checking of driver entitlement. I am also likely to request DVSA to conduct a follow-up visit or desk-based exercise in the autumn to check that the action plan is being put into effect.

If I am not satisfied with the action plan, or such a plan fails to reach me by close of business on 31 July, I will refuse the requested increase at that point.

The good repute of transport manager [NAME] is retained, but he is warned that he should not be so dismissive of the need to keep accurate records which could, under certain circumstances, be of considerable assistance to him and in any case are a requirement of holding the licence.

If the prohibition record of the business had been less good, I would not have been prepared to overlook the lacunae in record keeping or to agree the increase. The [NAME] should be in no doubt that it must improve its record keeping practices, whether or not the increase is granted.”

5. An action plan was supplied and a letter dated 25 July 2018 (p133) informed the [NAME] of the [NAME]’s decision that:

“Having seen the [NAME]’s action plan, I am content to grant the increase to 60 vehicles. I will be asking DVSA to check later in the year on his performance against the action plan.”

6. DVSA carried out a desk-based assessment on 10 January 2019 (p55). It found “unsatisfactory” all aspects of Driver Defect Reporting, the fact that inspections were not always being signed off as roadworthy and the arrangements for inspection/maintenance reports to be reviewed to assess the effectiveness of Driver Defect Reporting. It found “Satisfactory” the inspections at the agreed 8-weekly

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interval. Overall, though, the Vehicle Examiner (p61) expressed concerns “about the [NAME]’s knowledge with regard to maintenance and the completion of records” in respects which he went on to specify. He noted a number of MOT fails which he considered indicated:

“poor MOT preparation and maintenance standards. The [NAME] should be able to demonstrate that vehicles are being operated well above the minimum standard.”

As a result, a full maintenance investigation was recommended.

7. On 30 April 2019 [NAME] conducted an unannounced inspection, with follow-up visits on 2 and 10 May. A PG13 was issued for the following shortcomings:

No formal provision for drivers to report defects in writing No record of driver walkaround checks Preventative maintenance record not available for all vehicles operated Ineffective forward planning (planners not displayed – not all vehicles detailed) Shortcomings not remedied from previous investigation (March 2018) Sample check of MOT indicates 38% final fail rate (12 months combined).

Advice and guidance were also given on a number of other aspects of maintenance systems and the associated documentation.

8. This report led to the calling of the Public Inquiry for stated purposes which were the same as those of the 2018 Inquiry (see[3] above), save that on this occasion there was no application for a variation to be considered.

The Public Inquiry

9. The Public Inquiry was held on 18 September 2019. [NAME] attended, accompanied by his representative in those proceedings, [NAME]. [NAME], his General Manager, also attended and gave evidence, as did Vehicle Examiner Austin Jones.

Relevant legislative provisions

10. Section 14ZA of the Public Passenger Vehicles Act 1981 (“the Act”) provides (so far as material):

“14ZA.— Requirements for standard licences

(1) The requirements of this section are set out in subsections (2) and (3). (2) The first requirement is that the [NAME] is satisfied that the applicant— … (b) is of good repute (as determined in accordance with paragraph 1 of Schedule 3),

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(c) has appropriate financial standing (as determined in accordance with Article 7 of the 2009 Regulation), and (d) … . . (3) The second requirement is that the [NAME] is satisfied that the applicant has designated a transport manager in accordance with Article 4 of the 2009 Regulation who— (a) is of good repute (as determined in accordance with paragraph 1 of Schedule 3), … .”

11. Section 17 of the Act provides (so far as relevant):

“(1) A [NAME] must revoke a standard licence if it appears to the commissioner at any time that— (a) the holder no longer satisfies the requirements of section 14ZA(2), or (b) the transport manager designated in accordance with Article 4 of the 2009 Regulation no longer satisfies the requirements of section 14ZA(3). … .”

The appeal to the Upper Tribunal

12. [NAME] clarified the discrepancy which had arisen between different versions of the written Grounds of Appeal: the Grounds relied on were those (p295) submitted with [NAME]’s appeal form dated 14 November 2019 with the addition of Ground 2A which appeared at p319 which had been submitted in connection with an application for a stay. The further Grounds within the latter did not form part of his case. He indicated that of the Grounds thus far “in play” he relied, as constituting Grounds of Appeal, only on Grounds 1, 2, 2A, 3, 4, 7 and 8. However, as regards the Grounds no longer relied upon, he did not withdraw the observations made as part of them, even if they were no longer to constitute Grounds in their own right. I consider below each of the surviving Grounds in turn.

Ground 1 Misunderstanding of the financial evidence

13. Strangely, and without explanation, although the call-up letter referred to the need to show available finance of £159,300, at the hearing [NAME] was required to show £270,550. [NAME] accepts that £270,550 was the correct figure. The complaint is that the evidence demonstrated that [NAME] could meet the higher figure and the [NAME] was plainly wrong to hold otherwise. It is submitted that the procedure followed at the Public Inquiry may have contributed to the mistake. Only if the primary contention is not accepted could there be any question of whether there was material unfairness by reason of the increase in the amount stated to be required.

14. The financial evidence included:

(a) statements for an account *****006 with [NAME] in the name of “[NAME]” covering the period from 30 April 2019 to 30 July 2019. The

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account balance had been averaged over the 3-month period by two different caseworkers: the lower figure thus arrived at was £101,594.50; and

(b) statements for an account *****660 with [NAME] in the name of [NAME]. These need to be described in a little detail. There was a statement headed “Detail of last operations (Mini statement) Printed on 08/08/2019”. It showed that from 10 April 2019 there had been a balance of £220,100.08. There was then a statement dated 28 August 2019 expressed to cover the period 8 August 2019 to 28 August 2019 and indicating that the balance throughout that period had remained at £220,100.08, with no money going in or out.

15. The [NAME] expressed his reasons for finding that the financial standing requirement was not met as follows:

“The [NAME] has provided bank statements for an [NAME] account1 showing average available funds of approximately £102,000 over the 3-month period 1 May to 30 July 2019. A further statement from a [NAME] shows that £220,000 was available over the 20-day period between 8 and 28 August 2019. The [NAME] needs to show financial standing of £270,550 for the 60 vehicles it is authorised for. Because the two bank accounts show average balances over different periods, not overlapping at all, and neither balance sufficient to demonstrate financial standing, it has failed to do this. I note that this is entirely in keeping with the [NAME]’s disorganised approach to any form of paperwork. I am therefore unable to conclude that the [NAME] has the required financial standing.”

16. From the above it is clear to the Panel that the [NAME] failed to heed the apparent significance of the 8 [NAME] statement in covering – through mention of the “last operations” – the period from 10 April 2019 to 8 August 2019. Indeed, the [NAME] does not refer to that statement at all. The period covered by the [NAME] statements2 falls within that period. On the evidence before us, [NAME] comfortably satisfied the requirement of financial standing at all material times and the [NAME]’s decision was plainly wrong. The Panel does also accept [NAME]’s submission that the error, as well as going to the heart of financial standing appears to have contributed to the [NAME]’s perception of [NAME]’s disorganisation where paperwork was concerned but do not consider further the materiality of this latter aspect, as [NAME]’s case succeeds without it.

17. Whilst of course it was the [NAME]’s responsibility to deal correctly with the evidence before him, we have to say that neither [NAME] nor [NAME] appears to have helped [NAME]’s cause in this regard. It is apparent from the Transcript of the Public Inquiry that the [NAME] at that point was under the impression that he did have a statement for the [NAME] down to April 2019, but no further. When he pressed [NAME] as to why (as he believed) no more up

1 This reference to an [NAME] account appears to have been a mistake. There were, additionally, statements for an [NAME] account in evidence, for reasons which are not obvious. Those statements were from 2018 and did not relate to the account averaged by the [NAME]’s staff which, as noted, was a [NAME]’s account. 2 Mistakenly termed the “[NAME] account” by the [NAME]

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to date statement had been submitted, neither [NAME] nor [NAME] explained that what they had submitted was in fact a statement going beyond April 2019. Rather, [NAME] said that he had given the material (“the whole information”) to [NAME] who in turn indicated first (from the presence of the material on the file, correctly) that he had passed it to the [NAME]’s representative on an earlier occasion but then (and incorrectly) indicated that the complete data had not been supplied due to “a breakdown in communication”, offering to provide them within seven days. The [NAME] did not accept the truthfulness of [NAME]’s explanation, resulting in [NAME], under pressure and having to be told by [NAME] to calm down, saying that he did not know the material had not been put in. In fact, it appears that it had been.

18. This regrettable generation of more heat than light might have been avoided (or at any rate its consequences mitigated) if the [NAME] had later gone back, if necessary in closed session, to examine what the financial material did actually show. The [NAME] indicated (p162B) that the Inquiry would “park the subject of finance for the moment depending on how we can get on with the rest of the issues.” However, it was never returned to.

Ground 2 – Misunderstanding that the [NAME] had previously been curtailed from 60 to 40 vehicles

19. The transcript of the Public Inquiry shows that at the outset, the [NAME] recorded that he had met the [NAME] in 2018 following an unsatisfactory maintenance investigation. He stated that as a result of that:

“I curtailed the licence to 40 vehicles and assurances were given about better future performance. Now there was an audit later on which appeared to show an improvement and at that point I allowed the licence to go back up to the 60.”

20. Once again, the transcript of the Public Inquiry suggests that neither [NAME] nor [NAME] took any steps to assist the [NAME] by pointing out that he was mistaken on this issue. On the evidence before us, his remarks were doubly inaccurate: the increase was allowed following the provision of an action plan, not an audit, but (and more importantly for present purposes) there is no evidence before us that there had ever been a curtailment from 60 to 40 vehicles. This confusion between permitting an increase from 40 to 60 with a curtailment from 60 to 40 appears to have persisted throughout the hearing as when summing up his interim thoughts at the end of the hearing, the [NAME] twice repeats the point (p200G and 201A-B). The latter is particularly telling of the [NAME]’s thinking:

“There will be significant regulatory action here because I do not know how I could frame the message in any other way to get through to you because clearly a curtailment from 60 to 40 did not get the necessary message across last time. In my view that was a significant curtailment and it led to various assurances being given. I do find it incredible that looking here today we find those assurances came to nothing and I am not impressed by that. So

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whatever happens there will be a much more significant action this time to see if we can finally get through to you that you cannot carry on as you are.”

21. It is, however, the [NAME]’s decision which is the subject of the appeal to us, not the proceedings of the Public Inquiry in and of themselves. Paras 2 to 5 of the Decision (p276) correctly summarise the history as set out at [3]-[5] above. At no point does the reasoning in the decision proceed on the basis set out in the remarks I have quoted immediately above and the failure to honour assurances previously given to the [NAME], which played a significant part in his decision (see in particular [21], quoted in para 23 below) was a matter worthy of carrying considerable weight, whether the context was the correct one as recognised in the Decision of investigating previous shortcomings and considering an application for an increase in the number of permitted vehicles, or the incorrect one articulated at the Public Inquiry of responding to a curtailment.

22. For that reason, we do not find a material error in the decision on this ground, although we consider the [NAME] might have been well advised, given his extended misunderstanding of the position at the Public Inquiry, to have recorded expressly in his decision his apparent realisation that he had been mistaken and that the mistaken position had played no part in his decision.

Ground 2A Failure to consider the correct legal test before revoking and/or to consider proportionality

23. In [COMPANY] (217/2002) the Transport Tribunal considered the implications of the Court of Appeal’s decision in [NAME] v Department of Transport [2003] EWCA Civ 64, concluding (at [11]) that:

“In applying the [NAME] case it seems to us that traffic commissioners and the Tribunal have to reconsider their approach. In cases involving mandatory revocation it has been common for findings to have been made along the lines of “I find your conduct to be so serious that I have had to conclude that you have lost your repute:

accordingly, I have also to revoke your licence because the statute gives me no discretion”. The effect of the Court of Appeal’s judgment is that this two-stage approach is incorrect and that the sanction has to be considered at the earlier stage. Thus the question is not whether the conduct is so serious as to amount to a loss of repute but whether it is so serious as to require revocation. Put simply, the question becomes “is the conduct such that the [NAME] ought to be put out of business?”. On appeal, the Tribunal must consider not only the details of cases but also the overall result.”

24. The relevant part of the [NAME]’s decision was as follows:

“Balancing exercise

21. On the positive side of the balance is the [NAME]’s relatively low prohibition rate of 11% over the last two years (compared to a national average for PSVs of about 16%). There is also the fact that [NAME] clearly does maintain his vehicles, although the 38% failure rate at MOT is a concern.

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On the negative side however is the fact that record keeping is chaotic to non- existent; that vehicles are missing their eight-weekly checks which are inadequately documented when they do take place; and that these shortcoming[s] were pointed out to [NAME] in early 2018 but that he has ignored all advice on how to address them. Further, he has failed to carry out most of the specific assurances he gave me in the action plan of July 2018: these assurances and my belief that I could rely on him to carry them out were the only reason I agreed to the increase in the licence authority from 40 vehicles to 60. The fact that his assurances proved worthless necessarily devalues the assurances he is offering this time round. On balance, I conclude that [NAME] is not an [NAME] whom I can any longer trust to comply with the requirements relating to frequency of record inspection and proper keeping of maintenance records and records of driver entitlement checks.

Decisions

Transport Manager repute

22. No one who witnessed his performance at the public inquiry could conclude other than that [NAME] is entirely dismissive of the views of others and utterly incapable of delegating to anyone else ([NAME] for instance). Indeed, he frankly accepted as much. He firmly believes his own way of doing things is best and I do not believe he is capable of change or of acting according to the standards required of a modern-day transport manager. I recognise that [NAME]’s letters since the inquiry have struck a different tone, but I have concluded that his true attitude was on display at the inquiry. He wrote a similar contrite letter after the 2018 public inquiry, but it proved to be empty words.

23. Owing to his past history of broken promises and failure to heed expert advice constructively given, I no longer have any confidence in the new assurances that he has made. I have reluctantly therefore come to the conclusion that [NAME] is not of good repute. I must therefore disqualify him under Schedule 3 of the 1981 Act from acting as a transport manager. [NAME]’s shortcomings are not such as the mere passage of time will suffice to rectify: I am thus disqualifying him for an indefinite period, although he may regain his repute by retaking and passing the transport manager CPC examination.

[NAME] licence

24. Because I have concluded that [NAME] lacks financial standing and is not of good repute, revocation of the licence is mandatory under section 17(1)(a) and (b). I did consider whether to allow a period of grace in which to appoint a new transport manager (and finally produce the right financial evidence) but I concluded that in practice there was no point as [NAME] is clearly never going to submit to the authority of another transport manager.”

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25. The above paragraphs do provide some support for [NAME]’s submission. Nowhere is the [NAME] question posed in terms. When repute is considered without it (as in paras 21 and 22) and then the reasoning progresses to the mandatory character of revocation, there must be a real risk of such a ground being made good. [NAME] submits that the [NAME] question must be asked, if not expressly, then at least in terms which “capture the gist” of the question.

26. Because the rationale for the [NAME] test is the need for proportionality to be built in, as articulated in [NAME], what is needed to answer it is not just a recitation of factors which go to repute, but an evaluation of their severity and in particular whether they reach the bar set by the proportionality test. In our view, while the [NAME] has clearly identified a number of factors bearing on [NAME]’s repute, we conclude that the [NAME] question either was not asked or (and perhaps more likely given that it is something of a staple of Traffic Commissioners’ work) cannot be demonstrated to have been asked and adequately answered.

Ground 3 Material error in approaching case on basis/finding that there was a 12-week PMI gap in the maintenance records for vehicle [ID] after 24 June 2019

27. As previously noted, planned maintenance inspections were to be carried out at 8-weekly intervals.

28. In the call-up letter dated 5th August 2019 [NAME] was told to bring inspection records “for the last 12 months”. He understood that he was required to bring records for the last 12 months (i.e. ending on 5 August 2019) when attending the public inquiry on 18 September.

29. The latest inspection of [ID], at the time the call-up letter was received, had been on 24 June. 8 weeks had not passed between then and the call-up letter.

30. [NAME] explained to the [NAME] (p163G) that he had “got all his evidence about six/seven weeks ago altogether” and just had not updated it.

31. The [NAME] found (Decision, [10]) that the most recent inspection of [ID] had taken place “12 weeks previously” (i.e. previous to the public inquiry), on 24 June 2019. There was no evidence available to him, either way, as to whether there had been an inspection of that vehicle between 5 August and 18 September 2019 and so the finding was in error of law and plainly wrong. We cannot say that it was, as also claimed, in error of fact as there is no material before us showing that the claimed inspection after 5 August 2019 was carried out and if so, when.

32. However, whilst the [NAME] was therefore in error of law on this point, there was evidence that the 8-week requirement had been missed earlier in the year in respect of a different vehicle ([ID]) and no explanation for that failure in the evidence. We would therefore not have set the decision aside on the basis of the error concerning [ID] alone.

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Ground 4 Failure to undertake a proper balancing exercise Ground 8 Coming to a decision that was disproportionate

33. It was in para 21 of his Decision that the [NAME] undertook a balancing exercise. [NAME] relies on the decision in T/2010/52 and 53 [NAME]:

“In 2007/104 [NAME] t/a [NAME] tribunal re-affirmed that there are three main ingredients in a properly conducted balancing exercise. First, all the relevant factors should be identified. Second, each relevant factor should be assessed. And third, the analysis must indicate the weight or significance that has been attached to the relevant factors and reasons for the various judgments made should be given. Thus if one factor or group of factors outweighs another or others, some explanation should be disclosed in order to provide a rational explanation for the conclusion reached. The tribunal stressed the need for a [NAME] to make it clear that he had in mind all the factors, both favourable and unfavourable, which were capable of influencing the decision in question.”

34. [NAME] provided in argument a lengthy list of positive features of the [NAME]’s case that were in evidence, a good many of which he said were not addressed by the [NAME] as part of his balancing exercise. It is not necessary to set them all out. We note from the opening of para 21 of the Decision that the [NAME] did identify some factors on the positive side of the balance, but of the factors raised by [NAME] we consider that at any rate the [NAME]’s apparently blemish-free regulatory history between 1993 and 2018 and the absence of any conviction or serious accidents during that period were positive features of the [NAME]’s case which ought to have been, and be seen to have been, weighed in the balance. It is entirely understandable that the [NAME] should have been concerned about the poor keeping of maintenance records and associated matters and the failure to honour assurances given to him in 2018, but in our view an undue focus developed on those issues, to the partial exclusion of factors needing to be included on the positive side of the balance.

35. It is not possible to say whether or not it was a proportionate decision, because the relevant factors were not weighed up.

36. The panel does not consider that Ground 8 adds materially to Ground 4 and [NAME] does not need it for his case to succeed.

Ground 7 Error in concluding that [NAME] would never submit to the authority of another transport manager without exploring that issue with the other manager and CPC holder present at the inquiry

37. [NAME] frankly acknowledges this is not his best point and the Panel agrees. In the course of the Public Inquiry evidence was obtained from [NAME] as to the scope for giving [NAME] more extensive involvement and/or taking on someone else with CPC. [NAME]’s answers did not suggest he was positively disposed to such a step; indeed, the opposite. The [NAME] saw and heard the

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witnesses and on the evidence that was before him was entitled to come to the conclusion that “[NAME] is never going to submit to the authority of another transport manager.” Given that was the attitude of [NAME], the owner of the business, what [NAME] might have thought on this topic was of no great consequence.

38. The fact that, as we were informed at the oral hearing, a very recent application has been made for the approval of [NAME] as transport manager is not material for the purposes of the appeal to us. The [NAME] to whom this case is remitted may wish to explore that aspect, including whether, even if [NAME] is approved, [NAME] would step back to the requisite extent.

Conclusion

39. We can very well understand the [NAME]’s frustration not only that the [NAME]’s approach to the role of record-keeping as an integral part of maintenance was unconventional and unsatisfactory but also, and significantly, that previous assurances had not been honoured. Unfortunately, from the beginning of the Public Inquiry things seemed to get off on the wrong foot and through to the decision an undue and largely exclusive emphasis remained on that aspect, causing errors of fact and law to be made. Many of the errors were significant and affected the conclusion both on financial standing and on repute. We accordingly set the [NAME]’s decision aside.

40. We considered whether there was any decision we could sensibly make other than remitting the matter and concluded that there was not. We do not have all the evidence before us that was brought to the Public Inquiry. Even if, despite that, we were prepared to make a decision, we cannot pre-empt consideration of the application for [NAME] to be approved as transport manager nor without either [NAME] or [NAME] before us can we realistically go behind the [NAME]’s assessment of the feasibility of approving the former as transport manager.

41. We recognised that remitting the matter for rehearing would inevitably lead to some delay. Whilst the [NAME] would be continuing to provide services during that time, we did not consider that there was likely to be any unacceptable risk in his so doing. His prohibition rate was well below the national average (even if, to a degree, that may be a reflection of the size of vehicles being operated). There was no evidence to suggest that the [NAME] was operating unroadworthy vehicles: when defects were found, they were advisory only.

42. We are very doubtful that the Public Inquiry will have felt fair to [NAME]. As noted above it got off on a wrong footing in relation to both finances and the supposed history of curtailment and never really recovered. It is therefore appropriate that the matter be considered afresh by a different [NAME].

43. [NAME] should however not assume from the fact that his appeal has been allowed that he faces any less onerous regulatory regime. How that regime will be

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applied to him as transport manager and to his business as [NAME] is entirely a matter for the [NAME] to whom this case is now remitted.

C.G. Ward Judge of the Upper Tribunal Date: 3 January 2020