Upper Tribunal Dismisses Operator's Licence Appeal

1

IN THE UPPER TRIBUNAL Appeal No. UA-2023-000873-T ADMINISTRATIVE APPEALS CHAMBER

[2024] UKUT 292 (AAC) ([NAME])

ON APPEAL from a DECISION of a [NAME] for the LONDON & SOUTH EAST TRAFFIC AREA

Before:

E Mitchell, Judge of the Upper Tribunal [NAME], Specialist Member of the Upper Tribunal [NAME], Specialist Member of the Upper Tribunal

Appellant:

[redacted]

Commissioner’s ref: [ID]

Date of decision: 9 June 2023

Representation:

The Appellant in person

Heard at: Field House, Bream’s Building, central London on 5 December 2023

DECISION OF THE UPPER TRIBUNAL

This appeal is dismissed.

Subject matter: restricted operator’s licence.

[COMPANY] UA-2023-000873-T [2024] UKUT 292 (AAC)

2 REASONS FOR DECISION

[NAME]’s decision

1. In September 2021, the [NAME] ([NAME]) wrote to [NAME] (who is the sole director of the Appellant in these proceedings):

(a) in his capacity as director of [COMPANY], informing him that the [NAME] had decided to hold a public inquiry before determining the company’s application for a standard operator’s licence under the Goods Vehicles (Licensing of Operators) Act 1995 (1995 Act);

(b) in his capacity as the holder of a standard operator’s licence under the 1995 Act, informing him that the Commissioner was considering revoking his operator’s licence.

2. The outcome of that public inquiry was as follows:

(a) the [NAME] revoked [NAME]’s operator’s licence. The findings relied on by the Commissioner included that [NAME] had “allowed the Limited Company to use his Sole Trader Licence”, operated from an unauthorised operating centre for nearly a year, failed to comply with prescribed pre-application steps, operated two trailers when his licence only authorised one, failed to comply with tachograph regulatory requirements, performed inadequate roller brake testing and did not have access to appropriate vehicle maintenance facilities;

(b) [COMPANY]’s application for an operator’s licence was withdrawn.

3. We also note the following observations made in the Commissioner’s written reasons for her decision:

“[NAME] has begged me time and again today to give him a chance. I have…considered…whether I should suspend the Licence to give him the opportunity. However, in my judgment the answer must be no. This case is far too serious and therefore I need to draw a line under it…I cannot trust [NAME] moving forward.”

[COMPANY] UA-2023-000873-T [2024] UKUT 292 (AAC)

3 4. On 1 December 2022, [COMPANY] (the present Appellant) made an application to the [NAME], on this occasion for a restricted licence under the 1995 Act. As we have mentioned, [NAME] is the sole director of [COMPANY].

5. On 30 January 2023, the [NAME] informed the Appellant that the [NAME] intended to hold a public inquiry before determining its application for an operator’s licence. The [NAME]’s letter stated that the inquiry was to “determine your fitness to hold a licence due to your previous history and to review the status of the money used to show financial standing”.

6. Public inquiry hearings were held on 28 March and 8 June 2023

7. On 9 June 2023, the [NAME] refused the Appellant’s application for an operator’s licence. The Commissioner was not satisfied that the Appellant satisfied the requirements of sections 13B, 13C and 13D of the 1995 Act, a decision that was based on the following adverse findings:

(a) since [NAME] was the sole director of [COMPANY], the Commissioner was entitled to treat his conduct as that of the applicant company, including when assessing the company’s fitness to hold an operator’s licence (Upper Tribunal’s decision in [COMPANY] (2013/008)) (paragraph 2 of the Commissioner’s reasons);

(b) the first hearing, on 28 March 2023. was adjourned because [NAME] had failed properly to prepare: “he failed to bring the password to join electronically (despite a timely reminder) and even when he had a paper bundle, he was disruptive and argumentative” (paragraph 3). The Commissioner’s agreement to adjourn that hearing was only given after [NAME]’s assurance that he would attend the next hearing properly prepared, and he was told that he was required to bring the case papers with him to that hearing (paragraph 4);

(c) [NAME] attended the hearing on 8 June 2023, but only with the papers that he brought to the previous hearing which was “identical to the unsatisfactory situation at the start of 28 March 2023” and “[NAME] expected the clerk to simply produce to him another copy of the bundle” (paragraph 4);

[COMPANY] UA-2023-000873-T [2024] UKUT 292 (AAC)

4 (d) [NAME] told the Commissioner that his lawyer had wrongly retained his case papers prior to the second hearing but that was disproven by the only invoice produced for legal services. The invoice was dated 12 days before the first hearing and there was no evidence to support [NAME]’s assertion that he consulted his lawyer after that hearing. Upon the Commissioner arranging for the lawyer to be contacted to explain the retention of [NAME]’s papers, he “changed his evidence” and “now said that a friend of his had the papers”. The friend was supposed to attend with [NAME] on 8 June 2023 but let him down. However, no one had notified the [NAME] that anyone would attend the hearing with [NAME]. The Commissioner found that “[NAME] was incapable of giving me a straight answer to a straight question, getting it right first time” (paragraph 5);

(e) [NAME] demonstrated by “his words and behaviours on 28 March 2023 and 8 June 2023 that he cannot be trusted.” (paragraph 6)

(f) [NAME]’s approach to compliance had not improved since the 2021 public inquiry. The documentation provided did not support his oral assertions of improvement: he was using the same maintenance contractor about whom concern was expressed in 2021, and driver defect sheets and PMI records remained unsatisfactory (paragraph 7);

(g) “Whilst on paper [NAME] meets financial resources, I remain to be satisfied that the funds are genuinely available” given his evidence of financial difficulties (paragraph 7).

8. While the [NAME] stated that she was not satisfied that the requirements of sections 13B, 13C and 13D were met, her reasons did not expressly link her adverse findings with the requirements of those sections. However, it seems to us that the Commissioner was not satisfied that the requirements of section 13C would be met (satisfactory arrangements and facilities for vehicle maintenance) nor that that the requirements of section 13D would be met (finances), in the light of the findings in paragraph 7 of the Commissioner’s reasons. The Commissioner’s findings might also suggest that, more generally, she was not satisfied that any of the requirements of section 13C and 13D would be met given her finding that [NAME] could not be trusted to run a compliant operation.

[COMPANY] UA-2023-000873-T [2024] UKUT 292 (AAC)

5 Legal framework 9. Section 13(2) of the Goods Vehicles (Licensing of Operators) Act 1995 provides that, on an application for a restricted operator’s licence, the [NAME] must consider whether the requirements of sections 13B and 13C are satisfied and, if the commissioner thinks fit, whether the requirements of section 13D are satisfied.

10. Section 13(5) of the 1995 Act provides as follow: “(5) If the [NAME] determines that any of the requirements that the commissioner has taken into consideration in accordance with subsection…(2) are not satisfied, the commissioner must refuse the application.” 11. Section 13B of the 1995 Act refers to an applicant being unfit by reason of certain notifiable activities and convictions.

12. Section 13C of the 1995 Act requires (amongst other things) satisfactory arrangements for compliance with drivers’ hours rules and to prevent overloading, and satisfactory arrangements and facilities for maintaining vehicles in a fit and serviceable condition.

13. Section 13D of the 1995 Act requires that the provision of facilities and arrangements for vehicle maintenance are not prejudiced by the applicant having insufficient financial resources. Grounds of appeal 14. The Appellant’s written grounds of appeal recite portions of the [NAME]’s reasons for refusing to grant an operator’s licence, followed by this statement: “I wish to appeal this decision on the grounds that I would like to prove that I am capable of running my business according to the terms and conditions as set out by the [NAME] and that I can be compliant as requested.” 15. At the hearing of this appeal, [NAME] communicated with the Upper Tribunal panel through an Arabic language interpreter. The interpreter confirmed that he had no difficulty understanding [NAME]’s Arabic, and [NAME], through the interpreter, confirmed the same.

16. At the hearing, the Upper Tribunal explained to [NAME] that, since this was an appeal against the [NAME]’s decision, his task, as representative for [COMPANY], was to persuade the Upper Tribunal that the decision involved some relevant error of law or fact. To assist [NAME] in this task, the judge read out

[COMPANY] UA-2023-000873-T [2024] UKUT 292 (AAC)

6 relevant parts of the Commissioner’s reasons, which were translated by the interpreter, and invited [NAME]’s comments: (a) paragraph (3) of the Commissioner’s reasons - the Commissioner’s description of events at the public inquiry hearing on 28 March 2023 was “accurate 100%”; (b) paragraph (4) – before the second hearing, [NAME] provided the [NAME] bundle to his proposed transport manager who was supposed to meet him on the morning of the hearing and bring the bundle. However, the transport manager did not turn up so that the bundle’s absence was “out of my control”. The panel asked [NAME] whether he explained this to the Commissioner. His response was vague. [NAME] told us that he apologised to the Commissioner, but she informed him that a bundle could not be made available on the day of the hearing; (3) paragraph 5 – [NAME] did not dispute what was written in this paragraph but said that it was his lawyer who had sent the [NAME] bundle to the proposed transport manager. He went on to say that he had done all that was asked of him by Traffic Commissioners, and his vehicles were in perfect condition with a 100% MOT pass rate. [NAME] put his trust in a transport manager but had learnt his lesson. He was now helping himself and was willing to do whatever was required of him to run his business, he pays his taxes, respects the law and has never claimed benefits; (4) paragraphs 6 and 7 – in the past three months, [NAME] arranged repair of a faulty engine and had evidence to prove it. He needs a licence because, without one, cannot expand or secure contracts.

17. When asked, towards the end of the hearing, if he had anything to add, [NAME] repeated that he was willing to comply with any licence conditions so long as he was permitted to carry on in business. Conclusions

18. We are not persuaded by the Appellant’s arguments and dismiss this appeal. It was the Appellant’s responsibility to come to both public inquiry hearings properly prepared and the [NAME] was entitled to draw an adverse inference from the way in which the Appellant prepared for both hearings. The Appellant told us that his proposed transport manager retained the [NAME] bundle but, from our reading of the transcript of the second hearing, the transport manager was the same person as the ‘friend’ whom the Commissioner was told had retained the papers (see page 9 of the hearing transcript). Since the friend and the proposed transport manager were one and the same, the argument that the transport manager was at fault, rather than [COMPANY] UA-2023-000873-T [2024] UKUT 292 (AAC)

7 [NAME], was therefore dealt with by the Commissioner. The Appellant argues that he has complied with all requirements imposed by Traffic Commissioners but that contradicts the present Commissioner’s findings, and the correctness of those findings is not seriously disputed. Finally, evidence about MOT pass rates, or vehicle maintenance, that was not before the Commissioner cannot demonstrate any error of fact or law in the Commissioner’s decision.

19. [NAME] promised, before us, that he would do whatever was required in order to secure an operator’s licence. However, an appeal to the Upper Tribunal against a [NAME]’s decision is not a fresh consideration of the regulatory issue that was before the Commissioner. For this reason, we cannot, in deciding this appeal, take into account commitments now given by [NAME] as to his future intentions.

20. Finally, we apologise for the delay in giving this decision. Initially, due to an administrative oversight this case was not marked on the Upper Tribunal’s case management system as ready for decision. And, subsequently, the judge was absent from duties while recovering from serious injuries sustained in an accident.

Authorised for issue by the Upper Tribunal panel on 5 September 2024

Section 37(1), Goods Vehicles (Licensing of Operators) Act 1995.