Upper Tribunal Allows Appeal Due to Insufficient Reasons Given

[2016] UKUT 0392 (AAC)

Appeal No. T/2015/72 IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER [NAME_1] COMMISSIONER APPEALS

ON APPEAL from the DECISION of [NAME_3] [NAME_1] COMMISSIONER for the West Midlands of England Dated 19 October 2015

Before:

Kenneth Mullan Judge of the Upper Tribunal Mr L. [NAME_5] Member of the Upper Tribunal [NAME_6] Member of the Upper Tribunal

Appellant: [redacted]

Attendances: For the Appellant: [redacted]

Heard at: Field House, 15-25 Bream’s [ADDRESS], [POSTCODE] Date of hearing: 2 June 2016 Date of decision: 30 August 2016

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be ALLOWED to the extent that we have found below that that the written reasons for the decision of the [NAME_1] Commissioner do not fulfil the tests for the duty to give reasons and adequacy of reasons set out in the authoritative jurisprudence in T/2015/68 [NAME_20] t/a [NAME_32]. We substitute, however, our own decision which is to the same effect as that of the [NAME_1] Commissioner, namely: (i) The Standard National Goods Vehicle Operator’s licence of [COMPANY_35] is revoked; (ii) [NAME_11] is disqualified from holding or applying for any position as a [NAME_10] Manager within the EU until she passes a new [NAME_10] Manager CPC examination; and (iii) [NAME_15] is disqualified from holding or applying for any position as a [NAME_10] Manager within the EU until he passes a new [NAME_10] Manager CPC examination.

[2016] UKUT 0392 (AAC) 2

SUBJECT MATTER:- Revocation; good repute and professional competence; duty to provide reasons

CASES REFERRED TO:- NT/2013/52 & 53 [NAME_25] v DOENI & Perry McKee Homes Ltd v DOENI [2013] UKUT 618 AAC; [COMPANY_27] & [NAME_29] v Secretary of State for [NAME_10] [2010] EWCA Civ. 695; NT/2013/82 Arnold Transport & Sons Ltd v DOENI [2014] UKUT 162 (AAC), T/2014/77 [COMPANY_31]; T/2015/68 [NAME_20] t/a [NAME_32]; T/2016/03 Ian Lambert t/a [NAME_33]

[2016] UKUT 0392 (AAC) 3 REASONS FOR DECISION

The decision under appeal to the Upper Tribunal 1. This is an appeal from the decision of the [NAME_1] Commissioner for the West Midlands of England dated 19 October 2015 in relation to a conjoined Public Inquiry ([NAME_34]) into [COMPANY_35] and [COMPANY_36].

2. The factual background to this appeal appears from the documents and the [NAME_1] Commissioner’s decision and is as follows:- (i) [COMPANY_35] was granted a Standard National licence authorising three vehicles on 17 December 1997. (ii) [NAME_15] was a Director of [COMPANY_35]. [NAME_15] was also the nominated [NAME_10] Manager for [COMPANY_36]. (iii) [NAME_11] was the nominated [NAME_10] Manager for [COMPANY_35]. (iv) On 10 September 2015 the [NAME_1] Commissioner wrote to [COMPANY_35] calling the operator to a Public Inquiry. The call-up letter identified the following issues: ‘Specifically, the issues of concern to the [NAME_1] Commissioner are that it appears: a) You are operating from an unauthorised operating centre; b) Your vehicles or drivers have been issued with prohibition notices by DVSA or the police in the past five years; c) You or your drivers have been issued with relevant fixed penalty notices in the past five years; d) You have not honoured the undertakings you signed up to when you applied for your licence, namely, i. That your vehicles [and trailers] would be kept fit and serviceable; ii. That you would observe the rules on drivers hours and tachographs and keep proper records; iii. That you would keep records for 15 months of driver defect reports, safety inspections and routine maintenance and make them available on request; iv. Drivers would report promptly any defects or symptoms of defects that could prevent the safe operation of vehicles and/or trailers, and that any defects would be promptly recorded in writing; e) Since the licence was issued, there has been a material change in the circumstances of its holder, namely That the company is operating from an unauthorised operating centre. Because of the matters listed above, the [NAME_1] Commissioner is also concerned that the company may not be of good repute, be of the appropriate financial standing or meet the

[2016] UKUT 0392 (AAC) 4 requirements of professional competence. If the company does not meet these requirements your licence is at risk.’ (v) The call-up correspondence to [COMPANY_35] also advised that the [NAME_1] Commissioner also had concerns about the nominated [NAME_10] Manager, [NAME_11], and that she would also be called to the same [NAME_34] and that separate call-up correspondence to that effect was being forwarded to her. (vi) Call-up correspondence was forwarded to [NAME_11] on 10 September 2015. The [NAME_1] Commissioner identified the following action which he would consider: ‘The [NAME_1] commissioner will consider whether you fulfil the requirements in respect of your good repute and professional competence as defined under Schedule 3 of the Act. Paragraph 16(2) of Schedule 3 imposes a mandatory requirement on the [NAME_1] commissioner that if he determines that you are no longer of good repute or professionally competent, the [NAME_1] commissioner must order that you be disqualified (either indefinitely or for such a period as the commissioner thinks fit) from acting as a [NAME_10] manager. You should note that while any disqualification is in force you may not act as a [NAME_10] manager for any road [NAME_10] undertaking in the European Union and any certificate of professional competence issued to you ceases to be valid for the period of disqualification. The [NAME_1] commissioner by whom a disqualification order is made under paragraph 16(2) of Schedule 3 may specify measures with which the disqualified person must comply before the order can be cancelled or varied. The [NAME_1] commissioner can stipulate any rehabilitation measures he feels appropriate to the circumstances. These rehabilitation measures can include the passing of a stipulated period of time, the requirement for a person to regain professional competence by way of examination or any other demonstration of compliance. Until the rehabilitation measure has been complied with the [NAME_1] commissioner is unlikely to consider that a person has regained his/her good repute or professional competence. You should note that Article 2 of Regulation (EC) No 1071/2009 defines a [NAME_10] manager in relation to a business as an individual who is designated by the holder of a licence by means of a contract who effectively and continuously manages the [NAME_10] activities of that business.’ (vii) In the file of papers is a copy of correspondence dated 6 October 2015 from [NAME_11] to the office of the [NAME_1] Commissioner. In this correspondence [NAME_39] stated: ‘At the request of my brother [NAME_41] I became [NAME_10] manager of [COMPANY_8] in 2013. The company had three drivers. One driver retired in 2013, one driver had his licence withdrawn on medical grounds and the remaining driver continued to drive part time until Feb 2015. [COMPANY_35] has now ceased trading. I have now resigned as [NAME_10] manager of [COMPANY_35].

[2016] UKUT 0392 (AAC) 5 I shall not and will not be attending the public enquiry on 15 October 2015, reason being the statement that was procured from me at the behest of the DVSA was not made under caution at the interview that took place at Featherstone and upon reading the note book statement made by [NAME_43] submitted to the enquiry the English language has been tailored to suit one’s ends. I had prior knowledge that the interview I was engaged in was under caution the choice for me at that time would be to terminate the interview and seek legal advice or at the very least ask for a taped or a written statement signed by me. I feel without prior knowledge to this I had that right taken away from me.’ (viii) In the file of papers which is before the Upper Tribunal is correspondence from [NAME_11] to [COMPANY_35], dated September 2015 in which she states: ‘Please accept this letter as notice of my resignation as [NAME_10] Manager at [COMPANY_8]. As detailed in my Contract of Employment I give 1 week’s notice, with the last day of employment being on 11 September 2015.’ (ix) In the file of papers is a copy of ‘Form GV80A: Application to change type of licence/notification of change of [NAME_10] manager’ signed and dated by [NAME_15] on 11 September 2015. In the completed form, two boxes have been ticked to indicate that [NAME_11] is to be removed as [NAME_10] Manager from the licence and that no other professional competent person is to be added to the licence as a [NAME_10] Manager. (x) In the file of papers is a copy of ‘Form SUR1: Application to surrender a goods or public service vehicle operator’s licence’ signed and dated by [NAME_15] on 16 September 2015 and date-stamped as having been received by the OTC on 21 September 2015. The form is completed to indicate surrender of licence number OD 0262985 in the name of [COMPANY_35]. The licence itself and a goods vehicle identity disc were attached to the relevant form. (xi) The [NAME_34] took place on 15 October 2015. Amongst others present were [NAME_15]. We return to what happened at the [NAME_34] below. For the moment, however, we note that at the outset of the [NAME_34], the [NAME_1] Commissioner noted the correspondence dated 6 October 2015 from [NAME_11], and as set out in sub-paragraph (vii) above. The [NAME_1] Commissioner addressed the issues which had been raised by [NAME_39] and we return to his comments below. We have noted that the [NAME_1] Commissioner asked [NAME_15] whether he was representing [NAME_11] and that his response was that he was not as they had ‘fallen out’. (xii) The [NAME_1] Commissioner also addressed the issue of the purported surrender of the operator’s licence in the name of [COMPANY_35]. [NAME_15] confirmed that it was the intention of the operator to surrender the licence. The [NAME_1] Commissioner informed [NAME_45] that the request for surrender had not been accepted because of the potential for revocation and disqualification, [NAME_45] confirmed that he understood that and in response to a direct question from the [NAME_1] Commissioner stated that he was not

[2016] UKUT 0392 (AAC) 6 seeking the continuance of the licence, in any event. There was then the following exchange: ‘THE [NAME_1] COMMISSIONER: So it would be revoked on the grounds of a lack of financial standing – [NAME_45]: Yes. THE [NAME_1] COMMISSIONER: - if nothing else – [NAME_45]: Yes’ (xiii) We also note the following exchanges which took place towards the end of the [NAME_34]: ‘[NAME_17] – CALLED By THE [NAME_1] COMMISSIONER … Q. Alright. You are a director of one entity which you know is going to be revoked? A. Yes. Q. You know it is going to be revoked anyway? A. Yes. Q. You went seven years without using the right Operating Centre, which is pretty basic, and there are some other issues which have been spelt out in the reports. The licence is going to be revoked, you know that anyway – A. Yes. Q. - because actually if you could surrender it you would surrender it? A. Yes. Q. All right. I can tell you that unless you are going to persuade me to the contrary I am going to make a finding that the Operator no longer has the necessary good repute, all right – A. Yes. Q. - so that is the limited company, and does not have professional competence because I am going to find that [NAME_46] loses her repute as the [NAME_10] Manager and you do not have the necessary financial standing because you have not produced any, and that all the matters set out in the call-in letter are actually made out in respect of the entity where you are the Director, you understand that? A. Yes. Q. Do you have a problem with any of that? A. No. Q. I am trying to be frank with you. I am not minded to disqualify you as a Director, do you understand that – A. Yes I do.

[2016] UKUT 0392 (AAC) 7 Q. - because technically I can do it. I accept that in large part the failings are due to your lack of management skills and your lack of knowledge. You should have had the knowledge about the Operating Centre, there are a number of failures there, but I am minded to find that you lose your repute, you understand that – A. Yes. Q. – as a Director, the entity loses its repute. Turning to [NAME_46], I do not accept what you have said about her doing 20 hours a week. It is quite clear if she is paid less than £3 per hour I do not accept that she is doing 20 hours a week and I do not think she has been [NAME_10] Manager conducting continuous and effective management of [NAME_10] and I accept what has been said to me by the Examiners relating to her being vague and so on. In fairness to you the Examiner made it clear that it was [NAME_46] rather than yourself … and clearly what little [NAME_10] Manager role was being undertaken was by you … … Q. All right, but actually the [NAME_10] Manager role has not been carried out and I am going to say that she loses her good repute as a [NAME_10] Manager. I am going to decide what to do about that – do I disqualify her indefinitely or for a period of time or make her do something? Do you think that she is going to be a [NAME_10] Manager again? What I am minded to do is make an order that she could not be a [NAME_10] Manager until she took new CPC exams as a [NAME_10] Manager. A. I would prefer, well, I’m speaking for her because she’s not here. I’d prefer you to do that as opposed to – Q. Exams? All right, so what I will do then is say she has got to pass new exams as a [NAME_10] Manager. A. Yes. … Q. … I have described the process where you come across as an honest person, a decent human being if you like, but one who does not have the management skills to be a [NAME_10] Manager, do you think that is fair? A. Yes, I would, if I had the choice, I’d like to do the CPC again myself. Q. You would? A. Yes. Q. Well you have a problem as I said you lose your repute as a [NAME_10] Manager but then say that you are disqualified until you take new CPC exams? A. No, I would not. Q. You would not? A. No.

[2016] UKUT 0392 (AAC) 8 Q. All right. Well that is what I am minded to do then. A. Okay. … Q. … So I actually have to say formally that you lose your good repute as a [NAME_10] Manager but I want to make it clear on the record that I do not cast aspersions on your integrity, all right, and that is important, and I will be making an order that you be disqualified, as with [NAME_46], until you pass new CPC examinations, you understand that? A. Yes, I do. …

I need to turn, I think to [COMPANY_8] and all the matters are made out in the call-in letter under Section 26(1)(a); 26(1)(c); 16(10(f) and 26(1)(h) of the Act. I also make a formal finding that the Operator no longer has the necessary good repute. … I am making a formal finding that the [NAME_10] Manager [NAME_13] has lost her good repute as a [NAME_10] Manager and she is disqualified until she passes new CPC examinations. I am also making a finding in relation to [COMPANY_47]. I know it is a restricted licence but the call-in letter has gone to [NAME_74] and I can make that decision. I am making the formal findings that you do lose your good repute as a [NAME_10] Manager but as I have said I will make a file note that I do not question your integrity. I have to disqualify you either until a particular act has happened or until a period of time has passed or for an indefinite period. In your particular case I believe it would be appropriate to do the same as for [NAME_46] and say the disqualification is until you pass new CPC examinations as a [NAME_10] Manager. … THE [NAME_1] COMMISSIONER: … do you understand, [NAME_45], what I have done?’ [NAME_45]: Yes, I do. THE [NAME_1] COMMISSIONER: Do you understand why I have done what I have done? [NAME_45]: Yes, I do. THE [NAME_1] COMMISSIONER: I think that you have accepted the inevitability of all the things I have done as, have you not? [NAME_45]: I have, yes.

3. On 19 October 2015 correspondence was forwarded to [COMPANY_35] from the office of the [NAME_10] Commissioner to the following effect:

[2016] UKUT 0392 (AAC) 9 ‘I refer to your attendance at the public inquiry held … on 15 October 2015, before the [NAME_1] Commissioner [NAME_49]. The inquiry was called under section 35 of the Goods Vehicles (Licensing of Operators) Act 1995. The reasons (“grounds”) for the inquiry were set out in our letter of 10 September 2015. Decision The operator’s licence is revoked herewith. Please see enclosed a copy of the [NAME_1] Commissioner’s oral written decision. … What you must do now You must return the operator’s licence and vehicle disc number 473660 to me at the above address for cancellation …’ 4. On 19 October 2015 correspondence was forwarded to [NAME_11] from the office of the [NAME_10] Commissioner to the following effect: ‘I refer to your non-attendance at the public inquiry held … on 15 October 2015, before the [NAME_1] Commissioner [NAME_49]. The inquiry was called under section 35 of the Goods Vehicles (Licensing of Operators) Act 1995. The reasons (“grounds”) for the inquiry were set out in our letter of 10 September 2015. Decision [NAME_13] no longer has the necessary good repute and professional competence to be a [NAME_10] manager. Please see enclosed a copy of the [NAME_1] Commissioner’s oral written decision. The [NAME_1] Commissioner specified the following measures that you must comply with before the declaration of unfitness can be removed: That you are disqualified from holding or applying for any such position within the EU until you pass new [NAME_10] manager CPC examinations. Measures specified may be varied by the [NAME_1] Commissioner on application from you or by the [NAME_1] Commissioner subject to notice being given by you in accordance with Paragraph 17(4) of Schedule 3 to the Act …’ 5. In the file of papers which is before us is a copy of a document headed ‘File Note of Decisions’. This document is signed by the [NAME_1] Commissioner on 15 October 2015. Although it is nowhere expressly stated, we have formed the view that this document is the copy of the [NAME_1] Commissioner’s oral written decision sent to [COMPANY_35] and [NAME_11] on 19 October 2015.

6. The file-note records decisions made in respect of [COMPANY_35] and [NAME_11] as [NAME_10] Manager and another company ([COMPANY_36]) and [NAME_15] as [NAME_10] Manager.

7. In respect of [COMPANY_35] the following is recorded: ‘Decisions made in respect of [COMPANY_35] [ID]

[2016] UKUT 0392 (AAC) 10 Adverse findings are made under sections 26(1)(a); 26(1)(c)(iii); 26(1)(ca); 26(1)(f) and 26(1)(h) of the Act. The operator no longer satisfies the requirement to have sufficient financial standing under sections 27(1)(a) and 13A(2) of the Act. The operator no longer satisfied the requirement to be professionally competent under sections 27(1)(a) and 13A(2) of the Act. The operator no longer satisfies the requirement to be of good repute under sections 27(1)(a) and 13A(2) of the Act. The operator’s licence is revoked forthwith. I do not make any order of disqualification under section 28 of the Act.’ 8. In respect of [COMPANY_35] the following is recorded: ‘Decisions made in respect of [NAME_10] manager [NAME_13] [NAME_13] no longer has the necessary good repute and professional competence. She is disqualified from holding or applying for any such position within the EU until she passes a new [NAME_10] manager CPC examinations.’ 9. In respect of [NAME_15] the following is recorded: ‘Decisions made in respect of [NAME_10] manager [NAME_17] [NAME_17] no longer has the necessary good repute and professional competence. He is disqualified from holding or applying for any such position within the EU until he passes a new [NAME_10] manager CPC examinations.’ 10. At the bottom of the file-note, there is an additional section headed ‘Notes (not part of decision).’ The relevant extracts from this section are as follows:  I have accepted all DVSA evidence given to me.  [COMPANY_35] ceased trading circa February 2015. All failings identified are accepted by [NAME_17] who is an honest individual but lacking in skills and competence.  [NAME_17] lost his good repute and accepted the fundamental issue that he didn’t have the management skills to discipline others. His sister didn’t turn up and gave a lame excuse for failing to do so – I don’t accept what she said and find that she did not carry out a [NAME_10] manager role as she claimed.’ The appeal to the Upper Tribunal 11. On 27 November 2015 an appeal to the Upper Tribunal was received in the office of the Upper Tribunal. The following grounds of appeal were set out in the Notice of Appeal: ‘Goods Vehicle (Licensing of Operators) Act 1995 (‘the Act’) I want to appeal against the decision made by the [NAME_50] [NAME_49] on the 15/10/15 made in respect of:

[COMPANY_35] [ID]

[NAME_10] Manager, [NAME_13]

[NAME_10] Manager [NAME_17]

[2016] UKUT 0392 (AAC) 11 The financial standing of [COMPANY_35], what does he know that I don’t? He was not given any financial details or information from or by the company. So what was his decision based on? His decision(s) made in respect of the “professional competence” and “good repute” of all 3 is based on evidence provided for by 3 DVSA examiners who in my opinion should all be called before a public inquiry to answer questions regarding their behaviour, conduct and integrity concerning “their investigation”. His decision to “revoke the licences of all 3 and at the same time make “petty” remarks concerning their characters and “exalting” the “other” 3 I found rather distasteful. A little less personal opinion and a more objective examination of the evidence would have produced a much “fairer” decision, a warning or a suspension for a certain period. His decision is not “proportional”. … Grounds for appeal Poor and misleading advice by the [NAME_50]. He failed to take account of matters which should have been taken into account. Offended the rules of natural justice in conduct of proceedings by showing bias: “I have accepted all DVSA evidence given to me” “Blame lies with the operator and “its” TM”. The [NAME_10] manager is a “him” not an “its”. The scenario presented to the Public Inquiry by the DVSA examiners: [NAME_52], [NAME_43] and [NAME_55] with regards to [COMPANY_35]. [NAME_56], [NAME_57] was misleading and inaccurate. The evidence along with the information produced was “duplicitous” and the conduct of the 3 DVSA examiners towards [NAME_39] and [NAME_45] insulting. This investigation allegedly was initiated because of no reply to a letter dated 23rd March 2015 sent by DVSA examiner [NAME_43]. Why was a copy of this letter not produced at the public inquiry? How from a request for tachographs and other documentation has a public inquiry into [COMPANY_35] arisen? Why was the public inquiry for [COMPANY_35] conducted/held on the same day and time as [COMPANY_58]? Why was it heard before No. 1 Skip’s inquiry? [COMPANY_35] as a company has no business relationship with No. 1 Skips so why were the 2 enquiries not held separately? [NAME_45] was [NAME_10] manager for No. 1 Skips, a director of [NAME_9] and driver. Is he or is he not entitled to have other business interests outside and besides that of [COMPANY_35]? If not, why not? If yes, why has [COMPANY_35] as a company been linked to No. 1 Skips Public Inquiry?

[2016] UKUT 0392 (AAC) 12 [NAME_59] turned up unannounced on the 28 March 2015 to conduct a maintenance inspection of [NAME_60] not [COMPANY_35] as [NAME_61] tries to allege in his statement. [ADDRESS] has never been an operating centre for [COMPANY_35]. [NAME_52] “pretended” already having visited one of the so called unauthorised operating centres in … that he didn’t know or had no idea where it was, then I tried to explain to him where … was, thus trying to make a fool out of me. The evidence that the [NAME_50] will consider (pg 8) Where is [NAME_52]’s report? Why is there no Public Inquiry statement from [NAME_52]? [NAME_1] Compliances section 2 (pg 39) The £200 was for not producing Drivers Digital tacho card nothing to do with drivers hours and tachographs as is trying to be implied by producing this piece of evidence. And I could go on. These people [NAME_53], [NAME_44] and [NAME_4] have gone to a lot of trouble to misinform, mislead and misdirect the public inquiry with pages and pages of information concerning [COMPANY_35] mainly and [NAME_39] and [NAME_45] in their role as [NAME_10] managers and for all of those pages the Compliance and History (pg 53) not one ‘S’ endorsed pg 9 has ever been issued, ever. [NAME_9] has its own shortcomings like many other companies but not to the extent or degree of seriousness of operating dangerous vehicles due to “poor” maintenance or putting “profit” before safety as is being portrayed by these 3 DVSA examiners. How would I describe the “investigation” carried out by these 3 DVSA people – unscrupulous.’ 12. At the oral hearing of the appeal representation was provided by [NAME_63]. He confirmed that he is the brother of [NAME_15] and [NAME_11] and had prepared the Notice of Appeal. He informed us that he wished to represent them both in connection with the decision by the [NAME_1] Commissioner that they had lost their repute. He also, at the outset of the hearing, stated that he wished to provide representation on behalf of [COMPANY_35]. We noted with him that the evidence demonstrated that the company had ceased operations, that [NAME_15], as Director, had sought to surrender the operator’s licence and had confirmed, during the course of the [NAME_34], that had the licence not been revoked that he would not have sought its continuance, in any event. On this basis, [NAME_63] stated that he was not proceeding with representation for [COMPANY_35]. 13. [NAME_63] made cogent oral submissions which are summarised as follows: (i) He questioned the validity and veracity of the evidence provided by the DVSA [NAME_1] Examiners and challenged the reliance by the [NAME_1] Commissioner on that evidence.

[2016] UKUT 0392 (AAC) 13 (ii) He submitted that the three DVSA [NAME_1] Examiners had contrived to ‘… paint a picture as ‘black’ as they can in order to have our operator’s licence revoked.’ (iii) He submitted that the operator ‘[COMPANY_36]’ was being used as a ‘Trojan horse’ to justify and legitimise an investigation into [COMPANY_35]. (iv) He noted that an assertion had been made that there had been no reply to correspondence which had purportedly been sent to [COMPANY_35] but a copy of the relevant correspondence was not included in the papers provided in the brief for the [NAME_34]. (v) He queried certain of the language which had been used in connection with [NAME_11] when she had been described as evasive and uncomfortable and her ‘excuse’ for not attending the [NAME_34] being described as ‘lame’. (vi) He challenged the decision to call [NAME_15], [NAME_11] and [COMPANY_35] to a [NAME_34] at the same time as [COMPANY_36]. (vii) [NAME_15] had a non-confrontational personality which would explain why he had not challenged the comments of the [NAME_1] Commissioner at the [NAME_34].

The proper approach on appeal to the Upper Tribunal

15. In NT/2013/52 & 53 [NAME_25] v [NAME_65] & [COMPANY_66] v [NAME_65], ([2013] UKUT 618 AAC) (‘[NAME_25]’), the Upper Tribunal said the following, at paragraph 8 of its decision, on the proper approach on appeal to the Upper Tribunal: ‘There is a right of appeal to the Upper Tribunal against decisions by the [NAME_67] in the circumstances set out in s. 35 of the 2010 Act. Leave to appeal is not required. At the hearing of an appeal the Tribunal is entitled to hear and determine matters of both fact and law. However it is important to remember that the appeal is not the equivalent of a Crown Court hearing an appeal against conviction from a Magistrates Court, where the case, effectively, begins all over again. Instead an appeal hearing will take the form of a review of the material placed before the [NAME_67], together with a transcript of any public inquiry, which has taken place. For a detailed explanation of the role of the Tribunal when hearing this type of appeal see paragraphs 34-40 of the decision of the Court of Appeal (Civil Division) in [COMPANY_27] & [NAME_29] v Secretary of State for [NAME_10] [2010] EWCA Civ. 695 (‘Bradley Fold’). Two other points emerge from these paragraphs. First, the Appellant assumes the burden of showing that the decision under appeal is wrong. Second, in order to succeed the Appellant must show that: “the process of reasoning and the application of the relevant law require the Tribunal to adopt a different view”. The Tribunal sometimes uses the expression “plainly wrong” as a shorthand description of this test.’ At paragraph 4, the Upper Tribunal had stated:

‘It is apparent that many of the provisions of the 2010 Act and the Regulations made under that Act are in identical terms to provisions found in the Goods Vehicles (Licensing of Operators) Act 1995, (“the 1995 Act”), and in the

[2016] UKUT 0392 (AAC) 14 Regulations made under that Act. The 1995 Act and the Regulations made under it, govern the operation of goods vehicles in Great Britain. The provisional conclusion which we draw, (because the point has not been argued), is that this was a deliberate choice on the part of the Northern Ireland Assembly to ensure that there is a common standard for the operation of goods vehicles throughout the United Kingdom. It follows that decisions on the meaning of a section in the 1995 Act or a paragraph in the Regulations, made under that Act, are highly relevant to the interpretation of an identical provision in the Northern Ireland legislation and vice versa.’ General principles on the operation of the Act and Regulations 16. At paragraphs 10 to 13 of the decision in NT/2013/82 Arnold Transport & Sons Ltd v DOENI ([2014] UKUT 162 (AAC), the Upper Tribunal set out the following general principles in the operation of the legislative provisions in Great Britain and Northern Ireland: ‘Some General Principles (a) An operator’s licence can only be granted if the applicant satisfies the Department that the relevant requirements, set out in s. 12 of the 2010 Act as amended, have been met. [The expression Department is used in the legislation but for the purposes of the decisions required to be taken under the legislation it is the [NAME_67] who takes them]. The relevant requirements are now set out in Paragraph 17(5) of the Goods Vehicles (Qualifications of Operators) Regulations (Northern Ireland) 2012, (“the Qualifications Regulations), which substitutes a new s.12 and adds ss. 12A-12E to the 2010 Act. The Qualifications Regulations also contain important provisions in relation to Good Repute, Professional Competence and [NAME_10] Managers. (b) … (c) The Tribunal has stated on many occasions that operator’s licensing is based on trust. Since it is impossible to police every operator and every vehicle at all times the Department in Northern Ireland, (and [NAME_1] Commissioners in GB), must feel able to trust operators to comply with all relevant parts of the operator’s licensing regime. In addition other operators must be able to trust their competitors to comply, otherwise they will no longer compete on a level playing field. In our view this reflects the general public interest in ensuring that Heavy Goods Vehicles are properly maintained and safely driven. Unfair competition is against the public interest because it encourages operators to cut corners in order to remain in business. Cutting corners all too easily leads to compromising safe operation. (d) It is important that operators understand that if their actions cast doubt on whether they can be trusted to comply with the regulatory regime they are likely to be called to a Public Inquiry at which their fitness to hold an operator’s licence will be called into question. It will become clear, in due course, that fitness to hold an operator’s licence is an essential element of good repute. It is also important for operators to understand that the [NAME_67] is clearly alive to the old saying that: “actions speak louder than words”, (see paragraph 2(xxix) above). We agree that this is a helpful and appropriate approach.

[2016] UKUT 0392 (AAC) 15 The attitude of an operator when something goes wrong can be very instructive. Some recognise the problem at once and take immediate and effective steps to put matters right. Others only recognise the problem when it is set out in a call-up letter and begin to put matters right in the period before the Public Inquiry takes place. A third group leave it even later and come to the Public Inquiry with promises of action in the future. A fourth group bury their heads in the sand and wait to be told what to do during the Public Inquiry. It will be for the [NAME_67] to assess the position on the facts of each individual case. However it seems clear that prompt and effective action is likely to be given greater weight than untested promises to put matters right in the future.’ Our analysis

19. In paragraphs 8-27 of T/2015/68 [NAME_20] t/a [NAME_32] the Upper Tribunal set out a comprehensive summary of earlier Tribunal decisions in relation to adequacy of reasoning for a [NAME_50]’s decision. In addition reference was made to decisions on this topic in other jurisdictions. A summary of the relevant jurisprudence was also set out in paragraphs 11-27 of the decision of the Upper Tribunal in T/2016/03 Ian Lambert t/a [NAME_33].

20. We do not have formal Decision Notices in respect of [COMPANY_35], [NAME_15] and [NAME_11]. What we do have are the oral comments of the [NAME_1] Commissioner delivered in the closing stages of the [NAME_34], the formal correspondence forwarded to [COMPANY_35] and [NAME_11] on 19 October 2015 and the ‘File-Note of decisions’ prepared by the [NAME_1] Commissioner on 15 October 2015. We cannot be certain, however, that the ‘File-Note of decisions’ was ever forwarded to the relevant parties.

21. We do accept that the totality of the documentation which was made available to [COMPANY_35], [NAME_15] and [NAME_11] is sufficient to convey to them the precise reasons why the adverse decisions had been made. We have noted, in particular, that in respect of [COMPANY_35], the [NAME_1] Commissioner noted the operator no longer satisfied the requirement to have sufficient financial standing without specifying the evidential basis for such a conclusion. Further, the ‘Notes’ which have been added to the ‘File-Note of Decisions’ are specifically stated not to form part of the decisions.

22. We are not satisfied, therefore, that the written reasons for the decision of the [NAME_1] Commissioner fulfil the tests for the duty to give reasons and adequacy of reasons set out in the authoritative jurisprudence set out in T/2015/68 [NAME_20] t/a [NAME_32]. We have concluded, therefore, that the decision of the [NAME_1] Commissioner must be set aside.

23. We are, however, in a position to re-make the decision of the [NAME_1] Commissioner which is to the same effect as his.

24. We begin with some of the more general submissions that have been made on the appeal by [NAME_63]. The first relates to the reason why [COMPANY_35], as an operator and [NAME_11], as [NAME_10] Manager were called to a [NAME_34].

[2016] UKUT 0392 (AAC) 16

25. Legislative provision for Public Inquiries is to be found in Regulation 20 and Schedule 4 to the Goods Vehicles (Licensing of Operators) Regulations 1995 (‘the 1995 Regulations’) made under the 1995 Act. The procedural requirements for a Public Inquiry are set out in significant detail in Schedule 4.

26. The call up letters to the Public Inquiry in this case are dated 10 September 2015. The detail of those letters is set out in sub-paragraphs (iv), (v) and (vi) of paragraph 2 above. The parties concerned could not have been provided with more detail concerning the issues which were of concern to the office of the [NAME_1] Commissioner.

27. We have no hesitation in agreeing that in light of that background the decision to hold a Public Inquiry in connection with [COMPANY_35], [NAME_11] and [NAME_15] was wholly reasonable. [NAME_63] has questioned why the [NAME_34] relating to [COMPANY_35] and his brother and sister took place at the same time as one relating to another operator – [NAME_37]. There are clear linkages between [COMPANY_35] and [COMPANY_36] in that [NAME_15] was both a Director of [COMPANY_35] and the [NAME_10] Manager for [COMPANY_36] (see paragraph 2(ii) above).

28. In T/2014/77 [COMPANY_31], the Upper Tribunal said, at paragraph 90:

‘Public inquiries are hearings conducted by statutory regulators whose functions are to ensure road safety, fair competition and compliance. The hearings are by necessity inquisitorial and one of the functions of TCs is to probe and test the evidence put forward by an operator. The approach of [NAME_50]’s must be robust in those circumstances and they often have to deal with operators … who are themselves robust and who object to any form of intrusive scrutiny of their operations and react accordingly. There may be other operators or witnesses who have no or little previous experience or understanding of the public inquiry process, who may feel that they are the object of robust, unfair and intrusive scrutiny when that is not the case.’

29. In our view, the proceedings at the Public Inquiry were conducted in accordance with the principles of natural justice, and the transcript is reflective of an apposite consideration of, and adherence to such principles. The [NAME_1] Commissioner conducted the proceedings in a fair, balanced and enabling manner. The only party to attend the [NAME_34] before the [NAME_1] Commissioner, in connection with [COMPANY_35], [NAME_11] and [NAME_15], was [NAME_15] himself. In our view, he was given every opportunity to give evidence, make submissions and address issues which had been raised. His precise role and the parties whom he was representing were clarified with him at the outset of the [NAME_34].

30. At one stage in the proceedings, the [NAME_1] Commissioner stated the following to [NAME_15]:

‘More of an issue relating to you and I appreciate I am not sure whether you are going to address me again on this, but in fact as far as you position as [NAME_10] Manager I am really wanting to give you an opportunity to say something else. I have been asking you questions throughout because you are not represented and I have allowed you to actually ask questions of others in the middle of their giving evidence …’

[2016] UKUT 0392 (AAC) 17 31. The quoted exchange is typical of a number of comments made by the [NAME_1] Commissioner and aimed, in our view, at ensuring that [NAME_15] was given every opportunity to understand the nature of the proceedings, participate in those proceedings to the fullest possible extent, by giving his own evidence and questioning that given by others and raising the issues which were of significance to him.

32. We have noted that [NAME_63] has submitted that the acceptance by [NAME_15] of many of the matters which were put to him by the [NAME_1] Commissioner were representative of his non-confrontational personality. We have no reason to doubt that [NAME_15] has such a character. Nonetheless, we have already noted that the [NAME_34] call-up letter gave detailed information to [NAME_15] about the nature of the proceedings the issues which were of concern to the office of the [NAME_1] Commissioner and set out in some detail the issues which were of concern to the [NAME_1] Commissioner. [NAME_15] was also informed of the [NAME_1] Commissioner’s powers which could include the revocation of the operator’s licence.

33. More significantly, [NAME_15] was informed of his right to seek legal and professional assistance and of the requirement for him to adduce evidence relevant to his own position and that of the operator. Against that background, [NAME_15] chose to represent himself at the [NAME_34]. The [NAME_1] Commissioner, in recognition of that fact, spent time explaining evidence and issues to [NAME_15] and, importantly, seeking assurances that [NAME_15] understood what was being said and done. He also permitted [NAME_15] to question others who were giving evidence.

34. We have also noted the assertion by [NAME_63] that the evidence on which the [NAME_1] Commissioner had relied was flawed. In our view, the [NAME_1] Commissioner undertook a rational assessment of all of the evidence before him. All issues raised, either expressly or apparent from the evidence, were fully examined by the [NAME_1] Commissioner. In the ‘Notes’ section to the ‘File Note of Decisions’, the [NAME_1] Commissioner has noted that he has accepted ‘… all DVSA evidence given to me.’ That acceptance was noted after the [NAME_34] had been conducted and during which the DVSA evidence was examined. As was noted above, [NAME_15] was given every opportunity to challenge that evidence and did not do so.

35. We have observed that in the ‘Notes’ section the [NAME_1] Commissioner has recorded that he was ‘… an honest individual.’ That statement is reflective of a series of comments made by the [NAME_1] Commissioner during the [NAME_34] in which he repeated that he did not question the integrity of [NAME_15].

36. We turn to the individual decisions which were made by the [NAME_1] Commissioner reminding ourselves we do so against the two-stage test set out in Bradley Fold i.e. the Appellant assumes the burden of showing that the decision under appeal is wrong and that it has to be shown that ‘the process of reasoning and the application of the relevant law require the Tribunal to adopt a different view’. In short was the decision ‘plainly wrong’?

37. We begin with [COMPANY_35]. As was noted above, there is evidence that the company had ceased operations. Before the scheduled date of the [NAME_34], [NAME_15], as Director, had sought to surrender the operator’s licence. During the course of the [NAME_34], the [NAME_1] Commissioner informed Mr [NAME_16]

[2016] UKUT 0392 (AAC) 18 [NAME_14] that the request for surrender had not been accepted because of the potential for revocation and disqualification. [NAME_15] had then confirmed that, had the licence not been revoked, he would not have sought its continuance, in any event. [NAME_63] stated during the course of the oral hearing before us that he was not proceeding with representation for [COMPANY_35].

38. On that basis there are no substantive arguments on appeal in connection with the decision of the [NAME_1] Commissioner to revoke the licence. We are satisfied that the decision of the [NAME_1] Commissioner was not ‘plainly wrong’. We have noted that during the later stages of the [NAME_34] the [NAME_1] Commissioner stated that matters made out in the call-up letter under sections 26(1)(a); 26(1)(c); 16(10(f) and 26(1)(h) of the Act had been made out. We agree that the [NAME_1] Commissioner had before him sufficient evidence to found that conclusion.

39. The [NAME_1] Commissioner concluded that the operator no longer had the necessary good repute and professional competence. Once again, we confirm and uphold those conclusions. Finally, we have noted that the [NAME_1] Commissioner concluded that the operator no longer satisfied the requirement for financial standing. As was noted above, we have some concerns about the evidential basis for this conclusion. We have noted that in the call-up letter, [NAME_15] was directed to provide evidence of financial standing. Although it is nowhere expressly stated, it may be the case that the [NAME_1] Commissioner was basing his conclusion on financial standing on a failure to respond to this direction.

40. We turn to [NAME_11]. The only submission which we have from her, in person, was the statement which she made in her correspondence of 6 October 2015 and in which she stated that she would not be attending the [NAME_34]. Thereafter she had challenged the evidence of one of the DVSA [NAME_1] Examiners. There is also evidence that she had, prior to the [NAME_34], resigned as [NAME_10] Manager for [COMPANY_35].

41. At the outset of the [NAME_34], the [NAME_1] Commissioner made the following statement:

‘I have also received a letter from [NAME_13] saying she is not coming. She has given a reason for not coming which frankly I regard as bizarre. She says that she was not cautioned and claims, she says notes were tailored to suit one’s ends. If she had had prior knowledge she would have terminated the interview and sought legal advice or at least asked for a taped and written statement. Well we are not dealing with any criminal proceedings this is a civil matter. It happens separately from that, and [NAME_43] is aware of this because it has actually occurred in cases some years ago where actually if, in fact, adverse findings are made which has a significant impact leading to loss of livelihood, well then although I always decide matters on the balance of probabilities, and that is the standard of proof, the more serious an issue or allegation the more cogent the evidence that is needed which is why, on occasions, there will be interviews. Sometimes the DVSA choose to interview under caution or what have you in terms of the legalities there is no obligation at all and if [NAME_13] wants to challenge something she needs to attend to challenge.’

42. The use of the word ‘bizarre’ to describe the statement made by [NAME_39], is, in our view, unnecessary. That is because the statement which [NAME_39] made was not in our view related to her decision not to attend but was by way

[2016] UKUT 0392 (AAC) 19 of a direct challenge to the evidence of the DVSA [NAME_1] Examiner. More significantly, however, the [NAME_1] Commissioner returned to the challenge which had been made by [NAME_39] during the course of the [NAME_34] and when the [NAME_1] Examiner was giving evidence and pressed her to confirm that evidence. We noted above that [NAME_15] indicated that he was not representing his sister at the [NAME_34] but did make representations on the sanction which the [NAME_1] Commissioner was proposing to make.

43. We are also of the view that the description by the [NAME_1] Commissioner (in the ‘Notes’ section of the ‘File Note of Decisions’ of the excuse offered by [NAME_11] for not attending the [NAME_34] as ‘lame’ is unfortunate.

44. During the course of the oral hearing before us, [NAME_63] made some general submissions on behalf of his sister. We have addressed those general submissions above.

45. We confirm and uphold the decision of the [NAME_1] Commissioner in respect of [NAME_11]. That decision was underpinned by an adequate evidential base and sufficient fact-finding. It was not plainly wrong. We have noted and confirm the terms of the [NAME_1] Commissioner’s decision that [NAME_11] is only disqualified from holding or applying for any position as a [NAME_10] Manager within the EU until she passes a new [NAME_10] Manager CPC examination.

46. We turn to [NAME_15]. He did attend the [NAME_34] and played an active part in it. He gave evidence in his own respect and was permitted to hear and challenge the evidence of others. The issues which were of concern to the [NAME_1] Commissioner were addressed in significant detail during the course of the [NAME_34]. [NAME_15] was asked whether he understood those issues and whether he wished to comment on them. The following exchange is typical of many which took place:

‘Q. You have heard (the Vehicle Examiner) give evidence, are there any questions that you want to ask?

[NAME_45]: No.

THE [[NAME_50]]: You accept what he said? Do you disagree with any of the factual things he has raised?

[NAME_45]: No.

THE [[NAME_50]]: I put it to him it comes across that the paperwork is generally all right. It is not perfect but it is rank poor management. Do you agree with that?

[NAME_45]: It appears so, yes.

THE [[NAME_50]]: It appears so?

[NAME_45]: Yeah.

THE [[NAME_50]]: Do you accept it?

[NAME_45]: Yeah.’

[2016] UKUT 0392 (AAC) 20

47. This is representative of a number of occasions when failings or omissions, based on reliable evidence, were put to [NAME_15] and he indicated that he accepted and understood them. We have also noted that [NAME_15] had also stated to the [NAME_1] Commissioner that he would have liked to have undertaken his ‘CPC’ examinations again if he had the choice. He also indicated that he understood why the [NAME_1] Commissioner was seeking to impose a sanction against him.

48. During the course of the oral hearing before us, [NAME_63] made some general submissions on behalf of his sister. We have addressed those general submissions above.

49. We confirm and uphold the decision of the [NAME_1] Commissioner in respect of [NAME_15]. That decision was underpinned by an adequate evidential base and sufficient fact-finding. It was not plainly wrong. We have noted and confirm the terms of the [NAME_1] Commissioner’s decision that [NAME_15] is only disqualified from holding or applying for any position as a [NAME_10] Manager within the EU until he passes a new [NAME_10] Manager CPC examination. There is also, on record, a statement by the [NAME_1] Commissioner that [NAME_15] was an honest individual and that he did not question his integrity.

Disposal

50. To the extent that we find that that the written reasons for the decision of the [NAME_1] Commissioner do not fulfil the tests for the duty to give reasons and adequacy of reasons set out in the authoritative jurisprudence in T/2015/68 [NAME_20] t/a [NAME_32], the appeal is allowed.

51. We substitute, however, our own decision which is to the same effect as that of the [NAME_1] Commissioner, namely: (i) The Standard National Goods Vehicle Operator’s licence of [COMPANY_35] is revoked; (ii) [NAME_11] is disqualified from holding or applying for any position as a [NAME_10] Manager within the EU until she passes a new [NAME_10] Manager CPC examination; and (iii) [NAME_15] is disqualified from holding or applying for any position as a [NAME_10] Manager within the EU until he passes a new [NAME_10] Manager CPC examination.

Kenneth Mullan, Judge of the Upper Tribunal, 30 August 2016