Upper Tribunal dismisses appeal for restricted operator's licence

OUTCOME: [NAME] [2023] UKUT 79 (AAC)

1

IN THE UPPER TRIBUNAL Appeal No. UA-2022-001378-T ADMINISTRATIVE APPEALS CHAMBER

On appeal from the Decision of [NAME], Traffic Commissioner for the East of England dated 9th September 2022

[NAME]

Appellant

Before: Her Honour Judge Beech Upper Tribunal Judge

Specialist Member of the Upper Tribunal [NAME] Member of the Upper Tribunal [NAME] date: 7th March 2023

Representation: Appellant: [redacted]

DECISION

The appeal is DISMISSED

Subject Matter: Refusal to grant a restricted operator’s licence. Whether the Appellant had provided all relevant information to satisfy the Traffic Commissioner that he was not unfit to hold a licence and that he had satisfactory facilities and arrangements for maintaining vehicles in a fit and serviceable condition

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

[NAME] [2023] UKUT 79 (AAC)

[NAME] [NAME] No: UA-2022-001378-T 2 REASONS FOR DECISION

1. This is an appeal from the decision of the Traffic Commissioner for the East of England (“[NAME]”) dated 15th September 2022 when he refused the Appellant’s application for a restricted operator’s licence under s.13B and 13C(4) of the Goods Vehicles (Licensing of Operators) Act 1995 (the 1995 Act”)

Background 2. The background to this appeal can be found in the appeal bundle and the transcript and is as follows. The Appellant (“Mr [APPELLANT]”) has the following operator licence history: • He was the sole director of [COMPANY] which held an operator’s licence. Continuation of the licence was not sought in June 2014 and the licence lapsed • He was also the sole director of [COMPANY] which held an operator’s licence. The company went into compulsory liquidation on 5th August 2013 and the company was dissolved on 7th July 2014. The licence was revoked the following day • He was also the sole director of [COMPANY] (“[NAME]”) which held a restricted operator’s licence. Continuation of the licence was not sought on 31st December 2019 and the company’s request that late payment be accepted was refused • [NAME] then made an application for a new licence on 20th January 2020. This application was heard in a conjoined hearing with that of [COMPANY] (“[NAME]”) for the [NAME] to consider regulatory action on that licence as well as considering the new [NAME] application. [NAME] had a condition on its licence that Mr [NAME] “shall” not have any involvement with the [NAME] licence. The director of [NAME] was [NAME] who was also the company secretary of [NAME]. [NAME] had been operating vehicles registered to [NAME] from [NAME]’s operating centre rather than from its own operating centre. The vehicles were in the livery of [NAME] which was an aggregate company operated by Mr [NAME] (previously known as [COMPANY] which had its licence revoked on 8th July 2014). There was no financial evidence that the vehicles were being hired from [NAME] by [NAME] and driver records showed that Mr [NAME] drove the vehicles on a very regular basis. The [NAME] made significant adverse findings in respect of [NAME] and Ms [NAME], particularly in respect of maintenance failings. The [NAME] revoked the [NAME] licence and disqualified Ms [NAME] for 12 months. He refused the application of [NAME], finding that Mr [NAME] had failed to distinguish between companies and his own interests and that he intended to continue to operate the vehicles which had been so badly maintained by [NAME]. In the event that Mr [NAME] wished to re-apply for another licence, he was urged to review his business arrangements and to ensure a clear demarcation between entities. Moreover, he needed to ensure that vehicles “are in fact fit to be put back in operation”.

[NAME] [2023] UKUT 79 (AAC)

[NAME] No: UA-2022-001378-T 3 3. On 18th June 2021, Mr [NAME], as a sole trader, made an application for a sole trader restricted licence along with an application for an interim licence. [NAME] was still shown on the Companies House website as “active” and [NAME] remained Company Secretary. On 7th September 2021, Mr [NAME] was asked for information about Ms [NAME] likely role in his operation, the vehicles he intended to operate and how they were to be maintained. Mr [NAME] response was that Ms [NAME] would have no role in the business and that he intended to operate one 7,500kg drop side vehicle and one 17,500kg drop side vehicle which would be maintained by [NAME] at 8 weekly intervals.

4. On 18th October 2021, Mr [NAME] was notified of the [NAME]’s intention to consider his application at a public inquiry. Mr [NAME] was then directed to submit by 24th November 2021, the following documentation: i. Evidence showing access to the required finances; ii. Details of the proposed maintenance system, including sample safety inspection records, the daily defect reporting system and the maintenance contract; iii. Details of how he was to comply with the laws regarding drivers’ hours; iv. Anything else which he thought might help show that he would be a compliant operator or the steps he was taking to address any failings identified. It would appear from the bundle, that the only evidence provided to the [NAME] was financial.

5. On 20th October 2021, Mr [NAME] then complained about the delay in the processing of his application and the failure of the [NAME] to grant an interim licence. His complaint was answered on 22nd November 2021 by Ms [NAME], [NAME] who refuted Mr [NAME] allegations of “delaying tactics” and highlighted inconsistencies between Mr [NAME] account of how his application had been dealt with and the documentation that existed.

6. The public inquiry took place on 8th December 2021. Mr [NAME] produced: • An RHA Preventative Maintenance Inspection sheet in the name of “[NAME]” dated August 2018. That company was owned by Mr [NAME] and its operator’s licence had been revoked in 2014 (CS&G Plant Hire) [COMPANY]. The maintenance contractor was Auto Plant Car & Commercial Repairs • A blank page from a Driver Defect book • An alternative daily driver defect sheet dated 30th April 2018 which advises “Report any defects to [NAME]”. • A screen shot of a wall planner taken from the website Amazon.co.uk.

7. The hearing was conducted by Deputy Traffic Commissioner Davies (“DTC”). At the outset of the hearing, Mr [NAME] confirmed that his maintenance providers were to be [NAME]. He was a director of three companies which did not hold an operator’s licence and had been a director of companies

[NAME] [2023] UKUT 79 (AAC)

[NAME] No: UA-2022-001378-T 4 which had been dissolved. He confirmed that [NAME] was still a “live” company. He told the DTC that he wanted a licence for his own business purposes and he accepted that [NAME] had stated that Ms [NAME] should have no involvement. However, she was company secretary of [NAME]; she was not the company secretary of [NAME]. It was “clear cut” that he was applying for a licence for “[NAME] to operate” without any involvement of Ms [NAME]. He needed the licence to convert and develop holiday cottages. [NAME] ceased to trade after its licence lapsed or rather, that it was doing little or no work “at the moment at all” as Ms [NAME] was not supposed to have anything to do with his businesses which meant that he must trade on his own. He claimed that he had closed the business or rather he had “put it to sleep” but he could not fire an employee. The DTC then moved on without exploring Mr [NAME] account.

8. Mr [NAME] confirmed that he had been involved in operator licencing since he was 20 years old. He had held a transport manager CPC for 5 or 6 years and had attended an operator’s management course about 8 years prior to the hearing. He did not have any vehicles in possession but intended to buy two flat bed vehicles. The hearing then went into a private session and the transcript of that was not included in the public inquiry bundle so the Tribunal does not know what was said by Mr [NAME] whilst finances were being considered.

9. The DTC then turned to maintenance. Mr [NAME] told the DTC that he had taken the sample a driver defect reporting page (“DDR”) from a book. Mr [NAME] considered it to be straightforward (he was not asked about the alternative DDR sheet which was annotated with “Report any defects to [NAME]”). The DTC asked about audit checks of the DDR system and it was clear that Mr [NAME] did not understand the question. He thought that the act of him looking at a DDR sheet when handed in and then arranging for [NAME] to undertake the necessary repairs was the “audit” referred to. When asked again about audits, he stated that once the maintenance “report” was returned to him, he would then send it off “to the examiners” as he thought that this was the procedure. When pressed again about audits of the drivers’ defect reporting system, he then referred to the audit of drivers’ driving licences. At the end of a long exchange about an audit check, it was clear that Mr [NAME] did not understand what the DTC was talking about. As for training to undertake DDRs, it would be Mr [NAME] or his training provider, [NAME] who would deliver that and he would ensure that the drivers’ CPCs were up to date.

10. The DTC then moved onto other areas: • Tyre checks and replacement in addition to torqueing would be undertaken by [NAME] as “that’s what they’re doing”. Mr [NAME] was not asked to explain this comment in view of his assertion that he was not operating vehicles. Mr [NAME] volunteered “we have these indicators on the tyres’ nuts”. Again, this comment was not explained • He would be using drivers who knew about building and how to operate different types of machinery. He would be one of them • Mr [NAME] did not know what an OCRS score was

[NAME] [2023] UKUT 79 (AAC)

[NAME] No: UA-2022-001378-T 5 • As for a Driver’s Handbook, Mr [NAME] stated that he had one but had not brought it with him • When asked what steps he would take if a vehicle was VOR’d, he simply said that he would park it in the caged area where the two vehicles were to be kept at the operating centre. He did not mention VOR signs or notices placed in the vehicle folder and neither was he asked about that aspect of the VOR system • He told the DTC that the PMI sheet that had been completed by Auto Plant Car & Commercial Repairs was the type of sheet used by HB Commercial (although there was no evidence of that). When pressed, he stated that he could not say whether [NAME] would be using that PMI sheet; it was just a copy of a PMI form which had been “approved” • He was not aware of the new rules concerning the keeping of records about the age of tyres but thought that this would be covered by having tyre contractors involved • Brake testing would take place at every PMI. He could ask [NAME] to do a laden check although he appeared not to understand the significance of those checks • As for drivers’ hours, he did not think that the vehicles would ever accumulate more hours than the drivers were allowed to drive. Mr [NAME] did not appreciate that other work, such as building work needed to be taken into account when calculating a drivers’ hours and he was not pressed upon the matter • “They” would be using Clock Watch for analysis of drivers’ hours. He would be responsible for downloading the vehicles data once a month • Mr [NAME] had not seen the Guide to Maintaining Roadworthiness • The operating centre was a “massive” concrete pad at [NAME], Henley which was used as an operating centre by another haulier with 3 vehicles. Mr [NAME] intended to keep his vehicles in a locked cage. There was no photographic evidence to show whether the operating centre was suitable, and the DTC did not request information about the site’s entrance and exit to the public highway. Moreover, there was no evidence that Mr [NAME] had permission to park at the Farm. This was not pursued by the DTC • The screen shot of the wall planner was referred to. This is the planner that Mr [NAME] would have on his office wall which would be used to log MOT tests and PMI dates. No other key dates were mentioned.

11. Following a short break, the DTC returned and explained to Mr [NAME] that some of his answers to her questions were incorrect or demonstrated that he needed to refresh his CPC knowledge. She was concerned that Mr [NAME] had not heard of the Guide to Maintaining Roadworthiness although he then interjected stating that he had in fact seen the Guide. Having been informed that Mr [NAME] held a transport manager CPC, the DTC had expected his knowledge to be better than it was and whilst a restricted licence did not

[NAME] [2023] UKUT 79 (AAC)

[NAME] No: UA-2022-001378-T 6 require a transport manager, the transport operations had to be managed. She then asked Mr [NAME] what his suggestions were to progress his application in view of the “quite glaring knowledge gaps”. He asked for more time to update his knowledge but he did not accept that brake testing was his responsibility (which indicated a lack of understanding about what his responsibilities were in ensuring adequate brake testing was undertaken and printouts provided).

12. The DTC then gave an ex tempore decision. There isn’t a transcript of her reasoning but there are detailed notes in the appeal bundle which read as follows: “Due to knowledge gaps in critical areas i.e. brake testing, audits of drivers and general awareness of key documents providing essential guidance such as the Guide to Maintaining Roadworthiness, I have given this application the opportunity to update his knowledge. He holds a CPC TM qualification which needs updating. Finance has been met in full. I am satisfied on the evidence heard that there is a clear separation of entity from [COMPANY] or its directorship. [COMPANY] has all but ceased to trade. I hold my decision in abeyance to allow the Applicant to complete a total of 3 days (no less) courses comprised of (1) A 2 day CPC TM refresher course and (2) A one day Managing Operator Licence course or equivalent. To be completed by the 31 Jan 2022. Original certificate sent to the OTC for my attention no later than 4pm 9 Feb 2022. Applicant should also send copies of the following by the same date for my consideration (1) Wall planner with intervals for PMI, MOT, Insurance etc marked; (2) Maintenance Contract; (3) PMI sheets to be used not hypothetical document; (4) Driver Company handbook that would be given to drivers.” It is of note at this stage that from the reference made by the DTC to [NAME] and directorships, she appeared to have misunderstood that Mr [NAME] was the sole director of [NAME] and that [NAME] was the company secretary, not a director. The DTC did not refer to Ms [NAME] during her decision at all although it is Mr [NAME] involvement with Ms [NAME] that troubled the [NAME] in 2020.

13. At some stage following the public inquiry, the DTC left the jurisdiction and was unable to log onto VOL or consider any documentation lodged by Mr [NAME]. It was only in February 2022, that she advised that she would not be returning to the jurisdiction until about mid-April 2022.

14. In the interim, on 15th December 2021, Mr [NAME] sent a hard copy of a template of a driver’s handbook to the OTC. He wished to know whether the DTC was happy for this to be used as it was supplied by AVIVA, his insurance company. The Note accompanying the handbook template stated as follows: “It is hoped that the information presented in this document should give sufficient guidelines to enable you to produce your own [NAME] [NAME] [2023] UKUT 79 (AAC)

[NAME] No: UA-2022-001378-T 7 Handbook. However, there are also a number of aspects of driver information or procedure where there is a need for individual company considerations or supporting information before developing policies for advice for drivers. The following pages contain headings and suggested paragraphs that should assist in formulating a Goods Vehicle Drivers Handbook. The aim of this handbook is to inform drivers of your Company’s requirements, rules and regulations with regard to the operation of vehicles and provide operational information and procedures. … This document is to be used as a suggested base template only. The wording that appears in red is for guidance only. The templated wordings will not apply to every company and should not be relied upon or construed as advice. There may be information omitted that could be deemed necessary from an individual company or statutory perspective. ..” The handbook provided, was entitled “[COMPANY]” and there was provision to add a company logo. “[COMPANY]” appeared throughout the template and it was clear that Mr [NAME] had either failed to read or to follow the advice contained in the Note accompanying the template. On 14th January 2022, Mr [NAME] sent the following to the OTC: • A certificate confirming his attendance on a two-day transport manager refresher course and another confirming his attendance on a one day Managing Operator Licencing course • A wall planner provided by [NAME] with provision for logging relevant dates for insurance, MOTs, inspections and services • A Maintenance Contract with [NAME] dated 20th December 2021 which was signed by the contractor but not by Mr [NAME] • Pages 92 to 107 of the Guide to Maintaining Roadworthiness which included: Annex 3A “Example of a driver’s vehicle defect report (goods vehicle); Annex 3B “Example of a driver’s vehicle” (PSV); Annex 4A “Example of a safety inspection”; Annex 4B “Example of a safety inspection record (PSV); Annex 5 “Example of a maintenance agreement”; Annex 6 “Specimen maintenance planner”; Annex 7 “Useful addresses”; Annex 8 “HGV driver walkaround check”; Annex 9 “PSV driver walkaround check”. There was no explanation from Mr [NAME] as to why he considered these documents to be relevant to his application.

15. Mr [NAME] did not hear further from the OTC and complained to the Secretary of State for Transport, [NAME] MP on 21st February 2022 (who has no jurisdiction over TCs). By a letter dated 1st March 2022, [NAME], of the Traffic Commissioners’ Corporate Office, informed Mr [NAME] of the unexpected absence of the DTC until April 2022 and that in her absence, the [NAME] was unable to determine Mr [NAME] application and was unable to review his case and the documentation. In order to progress the matter, the [NAME] had given instruction that he was minded to grant an interim licence for a limited period which would assist Mr [NAME] to commence operations, pending the full determination of his application. The grant of the interim licence did not indicate that Mr [NAME] application would be granted in full.

[NAME] [2023] UKUT 79 (AAC)

[NAME] No: UA-2022-001378-T 8 16. The OTC wrote to Mr [NAME] on 2nd March 2022 notifying him that his interim licence had been granted until 1st July 2022. The letter informed Mr [NAME]: “The interim will allow you the opportunity to demonstrate use of the preventative maintenance inspection (PMI) forms and to lodge copies, along with all the other documents that the Deputy Traffic Commissioner requested at the hearing in December 2021. As a reminder, you are to provide the following documents: • A copy of the signed maintenance contract (the copy submitted in January was unsigned) • A copy of the driver handbook provided to your driver(s) • The PMI sheets and driver defect reports used during the interim period I can confirm that we already have copies of your certificates of training and the forward (wall) planner”.

17. On 9th March 2022, Mr [NAME] emailed Ms [NAME], his allocated case worker, attaching a signed maintenance agreement with [COMPANY]. He advised that he had spoken to both Taylor Commercials and [NAME] and they confirmed that they used the online system “R2C Online” for their maintenance records and services which he would have to download. He referred to the specimen drivers’ handbook he had provided to the OTC in December 2021 and noted that he had not received a response to his enquiry whether it was acceptable. It is of note that Mr [NAME] did not enclose a signed maintenance contract with [NAME] although it appeared that he was proposing to use both [NAME] and Taylor Commercials.

18. On 3rd May 2022, the OTC wrote to Mr [NAME] requesting the remainder of the documents requested by the DTC by 16th May 2022, namely, a copy of the driver handbook provided to his drivers, maintenance inspection sheets and driver defect reports used during the interim period. Mr [NAME] responded advising that he had not been operating vehicles on the interim licence as he did not have any and as a consequence there were no records to provide to the OTC. He repeated that once he commenced operation, Taylor Commercials would be using the R2C website for the PMI records (he did not explain why such an inspection sheet could not be printed and sent to the OTC for approval). He repeated his assertion that he had sent his handbook to the OTC requesting confirmation that this was “OK”. Later that day, he confirmed that the specimen handbook would be the one provided to his drivers.

19. On 21st July 2022, the OTC wrote to Mr [NAME] advising him that as a result of insufficient documentation, his application had been submitted to the [NAME]. Mr [NAME] was reminded that the purpose of the interim authority was to allow him an opportunity to demonstrate use of the PMI forms and enabling him to lodge copies with the OTC, with reference to other documents to be lodged. Mr [NAME] had now indicated that the interim may not have been required and as a result, the [NAME] wondered whether Mr [NAME] wished to pursue his application. If he did, a number of undertakings were proposed which if given, may give

[NAME] [2023] UKUT 79 (AAC)

[NAME] No: UA-2022-001378-T 9 grounds for an extension of the time limited interim. However, if operations did not commence so as to provide a basis for substantive grant, his application would be refused. The undertakings related to laden roller brake testing, the provision of financial evidence and an independent audit. Mr [NAME] was given to 4th August 2022 to respond.

20. Mr [NAME] then confirmed in an email dated 27th July 2022 that he wished to pursue his application and that he now wished to add an additional operating centre to his application. In response, the OTC reminded Mr [NAME] of the request for undertakings. Mr [NAME] then agreed.

21. On 2nd August 2022, the OTC queried whether Mr [NAME] original nominated operating centre was still available for him to use. Mr [NAME] response was that when he had applied for an operator’s licence, he had been told that it would take 13 weeks. The process had now taken over a year and he had lost the original operating centre as a result. He continued: “I could ask but what would I tell them this time. The new place is available now”. By a letter dated 16th August 2022, Mr [NAME] was informed that to change the operating centre at this stage required an application and a published advertisement within 21 days of the application. This requirement could not be met as the application was made in June 2021. In the circumstances, Mr [NAME] would have to restart the process and make a new application and this present application would be marked as refused. Mr [NAME] responded the following day “I will keep the operation centre where it is as it can not be moved as per your letter”.

22. On 31st August 2022, Mr [NAME] was informed that the [NAME] remained to be satisfied under the following sections of the 1995 Act:

• S.13B that he was not unfit to hold a licence • S.13C(4) that he had satisfactory facilities and arrangements for maintaining vehicles in a fit and serviceable condition • S.13C(5) – that he had an operating centre which was available and suitable for that purpose • S.13C(6) – that he had an operating centre which was sufficient for all the HGVs used under the licence and which had been published in the centre’s locality • S.13D – that he had sufficient financial resources to ensure that the vehicles could be maintained in a fit and serviceable condition. Mr [NAME] was required to provide original bank statements covering the previous three months, along with up to date evidence that the operating centre at [NAME] was available to him. A reply was required by 14th September 2022. It was further confirmed that a vehicle that Mr [NAME] wished to add to the proposed licence had been added although he was unable to operate it as the interim had expired.

[NAME] [2023] UKUT 79 (AAC)

[NAME] No: UA-2022-001378-T 10 23. In response, Mr [NAME] submitted evidence of finances and an email from “[NAME] (not further identified) from “All Manor of Events” confirming that there was an allocated space at [NAME] for Mr [NAME] to park two vehicles. The matter was referred to the [NAME] who determined: “My previous decision indicated that I remained to be satisfied as against sections …. The onus was on the applicant and I allowed a final 14 days to resolve. The letter of 31 August referred to the areas to be addressed. The parking permission refers to allocated parking. It is unclear if this permanent. That might be clarified. I am told that finance has been shown for 1 vehicle. The approach to the application suggests either a lack of knowledge or possible lack of engagement, neither offers grounds to grant or satisfies sections 13B and 13C(4). Having been put on notice, with no further correspondence beyond what I have described, the application is refused under the remaining sections.”

24. By a letter dated 15th September 2022, Mr [NAME] was informed that his application had been refused under s.13B and 13C(4) of the 1995 Act, the [NAME] not being satisfied that he was not unfit to hold a licence and that he had satisfactory facilities and arrangements for maintaining the vehicles in a fit and serviceable condition.

The Appeal 25. By a Notice of Appeal dated 13th October 2022, Mr [NAME] appealed. His grounds of appeal were as follows: “My application was sent in on 18 June 2021. All the requested documents were sent in and received. At the public inquiry I was told to do two courses which were completed. A interim licence (sic) granted for 6 months from 1.3.22, 9 months after application. I asked the case officer if the operators centre could be changed and they refused the licence”.

26. At the hearing of this appeal, Mr [NAME] attended and made the following points. He had attended the courses as requested by the DTC and had sent in the certificates. It then went quiet. He made enquiries and was told that the person dealing with the application was away and it was not known when they would be back. Then an interim licence was granted. He had sold all of the vehicles that had previously been operated by Ms [NAME] and so, had to source a vehicle to put on the licence and then get it checked, serviced and MOT’d. That process took four months. At the same time, he had purchased a property to use as an operating centre but was then told that it could not be used without a further application. He had more than enough funds in his bank account (although this was not the basis upon which the application was refused). He accepted that whilst he had provided a maintenance contract with [NAME], he had not provided a signed maintenance contract for [NAME], a contractor he intended to use. He was taken to the drivers’

[NAME] [NAME] [2023] UKUT 79 (AAC)

[NAME] No: UA-2022-001378-T 11 handbook including the introduction page. He accepted that he should have personalised it, deleting and adding relevant sections which were appropriate to his operation. He had not done so. He asserted that there were driver defect sheets in existence, but he had not produced them to the [NAME]. He would use the defect report to be found at Annex 3A of the Guide to Maintaining Roadworthiness but when the Tribunal went through it, he had to accept that the report would need amending as it did not include a check on the security of drop sided tipper vehicles (as opposed to coupling security).

27. He was then asked about his comments about the availability of his nominated operating centre at [NAME]. He told the Tribunal that the farm owner had agreed to rent him two vehicles spaces in a cage, although he had not paid any rent. Then nine months had gone by. In the interim, he had purchased an alternative property to use as an operating centre. The original operating centre was however still available and his statement in his email dated 2nd August 2022 was untrue. Discussion There was considerable delay in this application being determined, largely caused by the DTC leaving the jurisdiction for a considerable period of time and by reason thereof, being unable to consider the documentation that Mr [NAME] had submitted in purported compliance with her directions given at the end of the public inquiry. Further delay was caused by Mr [NAME] failing to provide compliant documentation which was reasonably required of him. An example is the drivers’ handbook template. It was clearly not in a form that could pass off as a handbook that could simply be handed over to drivers once “[COMPANY]” had been replaced with “[NAME]”. The fact that Mr [NAME] clearly thought that it could be, demonstrated that he had not given the template a moment’s thought as to its form and substance but had merely forwarded it to the OTC in the hope that it would satisfy the DTC. When pressed about the template by the OTC, he did not then have a look at the template but continued to blindly rely upon it. This is not the conduct of an operator with a transport manager CPC who had recently undertaken two refresher courses but someone who had a careless disregard of licensing requirements. He had made no attempt to adapt the template to suit his own business purposes and the fact that he failed to do so, represented a disregard of the direction of the DTC. Moreover, it demonstrated, what some might describe, as a cavalier attitude to compliance.

28. Another example is the driver defect reports. He clearly had not applied his mind to what was required of him in this regard. Photocopying annexes to the Guide to Maintaining Roadworthiness without a thought as to whether they were relevant or not (and clearly the PSV annexes were not) again, demonstrated a careless disregard. Equally, the two examples that he first submitted (a blank sheet without explanation and another annotated with “Report any defects to [NAME]”) raised more questions than they answered. As for PMI records, Mr [NAME] did not understand the significance of being able to show to the DTC and then the [NAME] an example of a PMI record which could easily have been downloaded from the R2C system by either of his maintenance providers (although he had only produced a signed maintenance contractor with one). The one example he had produced was in

[NAME] [2023] UKUT 79 (AAC)

[NAME] [NAME] No: UA-2022-001378-T 12 the name of “[NAME]”, was not in the form he was intending to use and had been completed by [NAME].

29. Finally, there was the issue of his operating centre and his correspondence with regard to it. Mr [NAME] now accepts that he lied about the continuing availability of [NAME] as an operating centre and that was apparent from the inconsistent statements he made to the OTC. Such conduct does not demonstrate that Mr [NAME] is someone who can be trusted to behave honestly and compliantly as an operator.

30. Having considered the above, it is clear that whilst Mr [NAME] is a qualified transport manager who has undertaken two refresher courses, he has not demonstrated that he has the knowledge to operate goods vehicles compliantly and that he can be trusted. The [NAME]’s determination that Mr [NAME] had not satisfied him that he was not unfit to hold a licence and that he had satisfactory facilities and arrangements for maintaining his vehicles in a fit and serviceable condition was not plainly wrong. Conclusion 31. There is no merit in this appeal and in all the circumstances we are not satisfied that the [NAME]’s decision was either plainly wrong or disproportionate and neither the facts nor 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 Transport (2010) EWCA Civ.695. This appeal is dismissed.

Her Honour Judge Beech

Judge of the Upper Tribunal

28th March 2023