Upper Tribunal Partially Allows Disqualification Appeal

1

UKUT 345 (AAC) Appeal No. T/2020/12 IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER TRAFFIC COMMISSIONER APPEALS

IN AN APPEAL FROM THE DECISION OF Nick Jones, Traffic Commissioner for the West of England dated 19 December 2019

Before: Her Hon. Judge J Beech, Judge of the Upper Tribunal [NAME], Specialist Member of the Upper Tribunal [NAME], Specialist Member of the Upper Tribunal

Appellant:

[redacted]

In attendance: [NAME] in person

Heard at: [ADDRESS], [POSTCODE] Date of hearing: 6 October 2020 Date of decision: 8 December 2020

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that the appeal be allowed to the limited extent that the disqualification of [NAME] under s.28 of the [NAME] Act 1985 be limited to the wording of the statute, namely: “[NAME] is disqualified from holding or obtaining a PSV operator’s licence in any traffic area for an indefinite period under section 28 of the [NAME] Act 1985”.

SUBJECT MATTER:- Failure to undertake an adequate balancing exercise; extent of Traffic Commissioners’ powers under s.28 of the [NAME] Act 1985; good repute; proportionality

1. CASES REFERRED TO:- 2009/225 Priority Freight & Paul Williams; T/2017/55 [NAME]; 2006/227 [NAME]; NT/2013/82 [COMPANY]; T/2014/11&12 [NAME] & [NAME]; [NAME]

[2020] UKUT 345 (AAC) 2 T/2020/12 [COMPANY] & [NAME] v Secretary of State for [NAME] (2010) EWCA Civ. 695 .

REASONS FOR DECISION

2. This is an appeal from the decision of the Traffic Commissioner for the West of England (“the [NAME]”) made on 19 December 2020 when he determined that the Appellant (“[NAME]”) had lost his good repute as a [NAME] manager and disqualified him from holding or applying for any position as [NAME] manager for an indefinite period; he further disqualified him from being “a director, shareholder, consultant, manager or employee of any entity holding an operator’s licence” under s.28 of the [NAME] Act 1985 for an indefinite period.

3. The hearing before the [NAME] was a re-hearing of a public inquiry involving [COMPANY], [NAME] and [NAME] and followed a successful appeal to this Tribunal (“the 2019 decision”) by [COMPANY] and [NAME] which resulted in a direction that a re-hearing take place before a different Traffic Commissioner. This present appeal is the only one to arise from that re-hearing which took place on 29 and 30 October 2019 and the subsequent determinations made by the [NAME] in his reserved decision dated 19 December 2019 (“the re-hearing”).

The Background

4. The background relevant to the appeal can be found in the appeal bundle, the transcript of the hearing, the written decision of the [NAME] and the Upper Tribunal’s decisions T/2014/53/54 [COMPANY], [NAME] and [NAME] and T/2019/32 & T/2019/33 [COMPANY] and [NAME] (both of which should be read in conjunction with this decision).

5. The important background information leading to the T/2014/54 decision is that [NAME] had been a director of [COMPANY] along with his father, [NAME] and his sister, [NAME]. At the same time, [NAME] held his own operator’s licence trading as “[NAME]”. He was the nominated [NAME] manager for both licences. The licences were revoked in June 2014 and [NAME] and his father lost their good repute as directors and as [NAME] managers. Both were disqualified for a period of 18 months. The regulatory action was taken as a result of serious and sustained failings in maintenance systems including prohibitions (two being “S” marked), a poor MOT pass rate, failure to adhere to the declared PMI intervals and an ineffective driver defect reporting system. Little improvement had been affected despite two unsatisfactory maintenance investigations and an adjournment of the public inquiry. In addition, [NAME] had been unlawfully lending vehicle discs issued to his sole trader licence to [NAME] which continued despite notice being given to him that the lawfulness of his actions was in issue. In determining the appeals, the Upper Tribunal

[2020] UKUT 345 (AAC) 3 T/2020/12 concluded that it was a “very bad case” and that the facts demonstrated a “wilful disregard of the need to ensure regulatory compliance” on the part of [NAME] and that the company was guilty of “serious, significant and sustained abuses of the licensing system”. The Upper Tribunal was also unimpressed with the [NAME]’s decision to grant a sole trader licence to [NAME] trading as [NAME] dismissal of the appeals, the [NAME]’s order came into effect from 14 November 2014.

6. The important background information leading to the 2019 decision is that [COMPANY] (“[NAME]”) was granted an operator’s licence on 9 February 2015 upon an undertaking being given that neither [NAME] nor [NAME] have any involvement in the business. The background circumstances leading to the grant of that licence, the involvement of [NAME] with the licence as director and [NAME] manager and a summary of the circumstances leading to the first public inquiry before [NAME] including a summary of [NAME]’s written representations prepared by his then legal representative can be found at paragraphs 4 to 18 of the Tribunal’s 2019 decision. The summary contained in those paragraphs is generally agreed save that in paragraph 8, the Tribunal incorrectly gave the date of [NAME]’s appointment as [NAME] manager as early December 2017 when it should have been early December 2016 and in paragraph 10 a), the Tribunal had incorrectly quoted from [NAME]’s report that the operating centre in [ADDRESS] had only “rudimentary brake facilities”, when it in fact read “rudimentary break facilities” which was a reference to a shipping container containing some upturned buckets for seats and a table. As a result of the agreement by those called to the public inquiry that those paragraphs reflected the evidence heard by [NAME] in the first public inquiry, the [NAME] took the view that they could be read into the record of the re-hearing.

The lead up to the public inquiry

7. By an email to the Office of the Traffic Commissioner (“OTC”) dated 5 September 2019, [NAME] contended that [NAME]’s maintenance investigation report was flawed and was being considered by senior management. [NAME] suggested that it would be necessary for the [NAME] to have all the necessary and correct data before him at the re-hearing. Further, [NAME] had made a complaint about [NAME] which he maintained was relevant to the impending public inquiry and as a result, [NAME] contended that this complaint must be investigated and concluded before the re-hearing commenced.

8. The [NAME] issued case management directions on 18 September 2019 which required witness statements from those who were called to the public inquiry, including [NAME] and skeleton arguments from [NAME] and [NAME] which were to be filed within fourteen days of the order. In addition, [NAME] was required to produce his redacted notebook within fourteen days and [NAME] of the [NAME] was asked to attend to assist the [NAME]. Further, if the DVSA intended to submit fresh evidence, then it must be filed as soon as possible and no later than 21 days.

[2020] UKUT 345 (AAC) 4 T/2020/12 The [NAME] determined that the complaint against [NAME] was irrelevant to the issues he was required to consider as the public inquiry was to be a rehearing to be held by a different [NAME].

9. Regrettably, [NAME]’s notebook was not disclosed within 21 days of the directions order as the officer was on leave for three weeks in October and had reduced his hours of working to three days a week. As for a witness statement and skeleton argument from [NAME], he did not file either document prior to the hearing (see below).

The public inquiry

10. In attendance at the hearing was [NAME] Manager (“VEM”) [NAME] ([NAME]’s line manager); [NAME], who was unrepresented; [NAME]; [NAME], who was represented by [NAME] of [NAME] (wrongly referred to as [NAME] in the 2019 decision); [NAME], who was accompanied by [NAME] and [NAME]. [NAME] failed to attend (and lost his good repute as a [NAME] manager).

11. It is convenient at this stage to record that at the conclusion of the witness evidence, the [NAME] was satisfied that there was no basis for coming to adverse conclusions about the use of [NAME]’s log-in details to make the changes on the VOL system on 29 December 2018 (see paragraph 12 of the 2019 decision) although strong comment was made about the use of another person’s log-in details generally; there was no basis for coming to adverse conclusions about the way in which [NAME] was acquired by [NAME] with the assistance of [NAME] (see paragraphs 12 to 15 of the 2019 decision); there was no basis for coming to adverse conclusions about [NAME]’s role in the disposal of the company and the change of details on the VOL system and there was no basis for coming to adverse conclusions about the role of [NAME] in these matters who was described by the [NAME] as a “respected regional [NAME] manager who gave credible and truthful evidence which was of very real assistance”. The [NAME] concluded that no adverse inferences should be drawn in respect of [NAME]’s conduct as a [NAME] manager and he found that [NAME] was a credible and truthful witness.

12. At the outset of the hearing, [NAME] made it clear that he disagreed with all of [NAME]’s evidence and that his integrity was in issue (although later averred that he was questioning the integrity of [NAME] on “certain elements” only). He submitted that the report was “flawed in various ways” and that it was being “looked at by the Department of [NAME]” and that he was waiting to hear the outcome. He wished to make the [NAME] aware that there could be an issue with the [NAME] hearing the evidence of [NAME] if the Department wished to forensically examine the evidence and that examination resulted in a different outcome. [NAME] had made a complaint to the “Maladministration Department”. However, the [NAME] rightly indicated that it was the Traffic Commissioners who were responsible for regulating the licensing regime, not the Department for [NAME] and that he would proceed to make determinations on the facts which the Department may wish to take into account.

[2020] UKUT 345 (AAC) 5 T/2020/12

The DVSA Evidence

13. Prior to [NAME] giving evidence about the substance of his report, [NAME] explained to the [NAME] that as a result of [NAME]’s complaint about the conduct of the DVSA investigation and the personal attack upon [NAME]’s integrity, [NAME] had been instructed not to have any contact with [NAME] which extended to not reading the Tribunal’s 2019 decision and whilst [NAME] had subsequently read the decision some time prior to the rehearing, [NAME] had not been given sight of the full content of the decision. The [NAME] gave him an opportunity to read it.

14. [NAME] then adopted his report. He confirmed that his maintenance investigation into [NAME] followed an unreported, serious fire in a coach operated by the company on 6 February 2018 which was carrying school children ([ID]). He had noted that on 26 June 2015, the same vehicle had been examined at the roadside and a [POSTCODE] had been issued for an exhaust leak on the turbo flange that the examiner considered a fire risk. The turbo had become loose again and was secured on 28 February 2017. It was a common problem with that type of vehicle and required managing. It was not being managed in this case. The vehicle fire had not been reported within 24 hours to the DVSA in accordance with the procedure set out in PSV112, which also prohibited any work being carried out on the vehicle until the DVSA had had the opportunity of examining it. When [NAME] went to examine the vehicle, he was told that it had been reversed into by another bus at the operating centre and had been scrapped. In [NAME]’s bundle of documents produced for the previous hearing, there was an undated letter to the central licencing office at Leeds which purported to notify the office of the fire. [NAME] could not say whether this letter was genuine or not but in any event it was not important “in the scheme of things”.

15. [NAME] had previously visited [ADDRESS] which was being used as an operating centre by [NAME] and found a compound with two shipping containers but without any workshop facilities. On the day of his investigation (13th June 2018), it was locked up and no personnel were present. As [NAME] had seen [NAME] at the operating centre of [NAME] at Northlew (“[NAME]”), he visited that site with another vehicle examiner. The office staff present provided copies of PMI records for [NAME] vehicles and confirmed that the [NAME] workshop carried out maintenance for [NAME]. At this point in [NAME]’s evidence, [NAME] interrupted stating that the workshop at [NAME] was in fact owned by his father and that when the mechanic at [NAME] carried out maintenance on the [NAME] vehicles, he was employed by [NAME]. [NAME] maintained that he had a contract of employment in respect of the [NAME] but he did not have it with him. [NAME] however averred that when he spoke to the mechanic at [NAME] ([NAME]) who was working on [NAME] vehicles at the time, he stated that he was working for [NAME]. Further, the MOT certificates for vehicles operated by [NAME] were kept at [NAME]. [NAME] was at the [NAME] operating centre, he asked two colleagues to

[2020] UKUT 345 (AAC) 6 T/2020/12 visit [ADDRESS] to obtain any maintenance records which were kept there but there was no one on site.

16. [NAME] attended the office at [ADDRESS] on 2 July 2018 and spoke to [NAME], a [NAME] employed by [NAME] who used to work for [NAME]. He gave [NAME] the available maintenance records and [NAME] then used a sheet of paper to log all of the maintenance records for seven vehicles and scanned all of the records. He also checked the VOR sheets and noticed that there were gaps between [NAME] of up to 14 weeks when the stated interval on the operator’s licence was 6 weeks. The age profile of the vehicles was 1998 to 2008. At this point, the [NAME] noted that in his [NAME] response to the investigation, [NAME] had averred that there had been some MOT tests during the stretched interval periods (which are no substitute for a PMI) to which [NAME] agreed stating that on each occasion, the vehicles had in fact had a PMI inspection prior to the MOT tests. He was unable to produce the paperwork confirming the three PMI inspections that he relied upon and [NAME] was unable to say whether those inspections (if they had taken place) would have resulted in compliance with the six-weekly interval without re-examining the records.

17. Whilst at the [ADDRESS] office, [NAME] noticed a brake decelerometer (or tapley meter). He asked to see it and noted that the calibration certificate had expired in May 2018. Further, the signing fitters on the brake test slips which were attached to some of the PMI sheets included [NAME] and [NAME], however [NAME] was based at [NAME] in Northlew and the meter was in Exeter. [NAME] concluded that either the meter was physically transported to Northlew each time it was used during [NAME] or the inspections were carried out in Exeter where there were no facilities.

18. [NAME] then read out the following from his report:

“The very odd thing with the PMI sheets is that there are 2 sets in play, a white set usually filled out days before a “Tachodisc” blue set is used with often defects differing between inspections, for instance, vehicle index number [ID] was inspected on a white sheet on 7/3/18 and showed 18 defects yet vehicle was inspected again using a blue set on 9/3/18 with only a defective brake chamber, mileage was the same. No brake test on either inspection. No brake record after brake repairs”.

At this point, [NAME] interjected stating that he was not sure whether he was going to dispute this evidence. He would need to check to see whether the mileage was the same on both sheets. He accepted that he had retained the maintenance records used by [NAME] to prepare his report and that he was on notice since March 2019 that this point was going to be made. He averred that he would “verify the position later”.

19. [NAME] then moved on to other records for the same vehicle ([ID]). The vehicle was reported as VOR on 15 December 2017 for a collision yet the next PMI sheet which was dated 7 March 2018 had a comment on it “No off mileage as the dash was blown”. There was a defect note dated four days

[2020] UKUT 345 (AAC) 7 T/2020/12 earlier than a VOR note showing 723552kms and on the next PMI the mileage was showing as 724433km, a distance of 1119kms. This vehicle averaged a monthly mileage of 3015km so 1119kms in less than 4 days was a lot. There were no recorded brake tests from the last PMI on 30 November 2017 and none on a PMI sheet dated 8 June 2018. The vehicle also had brake work undertaken on 9 March 2018 and no brake efficiency checks were undertaken before the vehicle went back into service. The longest PMI interval appeared to be seven weeks. It followed that between 30 November 2017 and 8 June 2018 (at least, as there was no brake testing on that occasion either) there were no recorded brake tests. At this point [NAME] interjected stating that during part of late 2017 there were issues with the Bluetooth connectivity with the Tapley meter. The [NAME] pointed out that this did not prevent the fitters making a manual record of the results on the PMI sheet. [NAME] then averred that he believed that the brake tests had been carried out but not recorded. He continued “we intend to do about four rolling road brake tests on a vehicle per year” but he could not produce either tapley meter readings or rolling road test readings. He would try to produce evidence of the latter. He accepted that he had missed the fact that the calibration certificate for the tapley meter had expired but made immediate plans to put it right once he had been informed. He then referred to an invoice he had produced at the first public inquiry for the Ministry of Defence to explain the missing mileage referred to by [NAME]. When the [NAME] pointed out that he did not have a copy of that invoice, [NAME] stated “.. I’[NAME] probably got it somewhere”.

20. [NAME] then reminded the [NAME] of the contents of paragraph 40 of the 2019 decision, where the Upper Tribunal noted that the evidence of [NAME] had been at the first public inquiry that whilst he was examining the PMI records which [NAME] had brought with him to the hearing, [NAME] had found a PMI sheet dated 12 August 2018. His evidence had been that this was the first record which showed that a tapley meter had been used for brake testing. Written on the PMI sheet were the words “calibration expired on brake tester” which undermined [NAME]’s averment that he had taken immediate action upon learning about the expiry of the certificate.

21. The [NAME] continued to go through [NAME]’s report: Vehicle [ID] had a note on the file dated 15 January 2018 of “pull brakes”. There was another note dated 20 March “brakes pull to left”. On a white PMI sheet dated 11 May 2018 there was a note “brakes need looking at” with no note that any action had been taken yet on the blue PMI sheet dated 16 May 2018 and with an additional 395 kms on the clock, there was no mention of defects or brake repairs. [NAME] confirmed that as a result, there was no evidence that repairs had taken place and because of the two sets of PMI records, he did not know what to believe. [NAME] then asserted that he had evidence to show that rolling brake tests had taken place (but not produced by him) and both Vehicle Examiners confirmed that the existence of two different sets of PMI records was evidence that the blue set were meant to be seen by the DVSA and the [NAME], whilst the white set actually painted the true picture. It followed that the blue records were false. [NAME] then pointed out that on many occasions, the white PMI sheets were stapled to the blue ones and that they were kept in the vehicle folders. [NAME] informed the [NAME] that in 30

[2020] UKUT 345 (AAC) 8 T/2020/12 years in the industry, he had never seen two sets of PMI sheets. [NAME] denied that any falsification had taken place.

22. The [NAME] continued with [NAME]’s report: a PMI sheet for vehicle [ID] dated 18 January 2017 recorded that two wheel nuts had sheered but there was no driver defect report to that effect. The vehicle was then VOR’d on 11 March 2017 for oil leaks with the mileage recorded as 553797kms. The vehicle was signed back into service apparently on 27 July 2017 with mileage of 554012kms. However, other records showed that the vehicle had been VOR’d again on 15 March 2017 with mileage recorded as 2kms less than on 11 March 2017 for smoking and returned to service on 27 June 2017 with mileage of 553884kms. Again, [NAME] did not know what to believe. The vehicle could not be off the road and yet on it at the same time and the mileages showed discrepancies. Moreover, the vehicle was listed as VOR’d again between 6 September 2017 to 16 September 2017 whilst the records showed that it had been on loan to [NAME]. No written agreement to that effect had been seen by [NAME]. [NAME] then averred that there was such an agreement but confirmed he had not produced it.

23. The next vehicle was [ID] which had a blue PMI sheet showing that new track rod ends had been fitted on 1 June 2018 although there was no record of the IM number on the PMI sheet and no defect recorded on page one. Further, there was no roadworthiness declaration or a recorded brake test. A discussion then took place about whether the white sheets were always filled in before the blue ones and whether they contained a declaration of roadworthiness. [NAME] then interjected stating “obviously our friends from the DVSA are confused and I’d just like to explain to them how it works”. [NAME] was told that he could give evidence in due course. [NAME] was able to say that on this occasion, there was only one PMI record for 1 June 2018.

24. [NAME] then dealt with vehicle [ID]: the vehicle commenced its PMI on 20 February 2018 and was signed out on 23 February 2018 with mileage of 836316. However, there was a driver defect report for a defective emergency buzzer dated 21 February 2018 with mileage of 836348. It did however have a rolling brake test (“RBT”) as part of its PMI. It was signed back into service by [NAME]. The question that [NAME] required an answer to was why the vehicle was operated in the middle of a PMI? The question had not been answered. [NAME] then interrrupted to aver that the vehicle would not have been used during the course of a PMI and the dates were possibly wrong. The mileage travelled between the start and the finish of the PMI was consistent with the vehicle travelling to [NAME] for a RBT. He maintained that he had given this explanation to [NAME] although [NAME] accepted “sloppy record keeping .. or its’ unexplained”.

25. [NAME] continued with the same vehicle: following the PMI of 20 February 2018, there was a “scribbled note” on the file dated 26 March 2018 with a question mark against the date and without a mileage recording that the vehicle was VOR’d for fuel problems but the next PMI was not until 23 May 2018 and 1221 kms had been driven since a defect note dated 27th February

[2020] UKUT 345 (AAC) 9 T/2020/12 2018 with no reference to any first use check after the VOR. This resulted in a 14 week gap between inspections. The [NAME] asked [NAME] whether he accepted that evidence to which [NAME] responded “I am not entirely sure”. The [NAME] then reminded him again of the directions he had given to produce a statement which should have contained the challenges he made to evidence of [NAME]”. [NAME] responded “Mmm-hmm”. When asked whether he had evidence to challenge the account given by [NAME] did not respond. He then volunteered that he accepted what was said but as for the 14 week gap between [NAME] “it’s almost as if then he hasn’t taken into consideration that .. the vehicle was off road”. He accepted however that if a vehicle was VOR’d there had to be a first use check which is the same as a PMI. Asked whether he had evidence of such a check, [NAME] stated “I hopefully can find something”. The [NAME] reminded him again that he had been aware of the evidence for a long time.

26. The [NAME] then took [NAME] through his report concerning vehicle [ID]: the vehicle was VOR’d on 17 June 2017 at 492310kms seven weeks after the previous PMI and the VOR recorded that the vehicle was with [NAME] for non- starting and an MOT. [NAME] conducted a PMI on 31 July 2017 with mileage of 492518kms, a difference of 207kms from the VOR mileage; the vehicle had travelled on the road without a first use inspection. The VOR contained a false statement that it was inspected at 492310kms on 2 August 2017 and was signed off to this effect on the report. It was not 207kms from the operating centre to [NAME]. When asked by the [NAME] whether he had evidence to contradict the account of [NAME] replied “No, not with me”. The [NAME] continued with the same vehicle: it had been previously examined on 8 May 2017 with no defects recorded and a brake test at [NAME] yet when a pre- MOT check was conducted by [NAME] on 31 May 2017, more than 22 defects were recorded including three which would have warranted a PG9 at the roadside. It was also reported that the fire extinguisher was not serviced and was of the wrong type. Twelve of the defects should have been reported by the drivers previously. When asked by the [NAME] whether he had evidence to contradict [NAME]’s account, [NAME] replied “No, I haven’t seen what the twelve defects were”. The [NAME] pointed out that these were his records and it was “within his gift” to do so.

27. Vehicle [ID]: had both blue and white PMI sheets. There was no brake test record after brake work on 4 June 2018 and no driver defect reports for engine stop, position lamps, door buzzer or a defective seatbelt. There was a nine week gap between inspections. [NAME] was asked whether he had an explanation for the evidence to which he initially did not respond but then volunteered that he believed that the nine-week gap was probably when there had been an MOT although when asked whether he had evidence of the MOT, he responded “I can find evidence yeah”. He was asked why he had not produced the evidence; he did not reply. He did however accept that an MOT is not a substitute for a PMI.

28. Vehicle [ID] was checked on a white PMI sheet on 9 March 2018 at 135243km and then checked on a blue PMI sheet on the same day with 50km extra mileage recorded. The same vehicle was checked on 24 April 2018 on

[2020] UKUT 345 (AAC) 10 T/2020/12 a white PMI sheet at 137731km and again on the same day on a blue sheet with a mileage of 137781kms, a difference of 50kms. On that day, the white sheet reported an inoperative passenger door and an inoperative emergency door warning but the sheet was not signed off and no brake test had taken place. The blue sheet only recorded an air leak on an offside rear air tank with a note that a part had been ordered but with no evidence that it had then been fitted. The vehicle was signed off as roadworthy by [NAME] without a brake test. There was 9 week gap between inspections on 4 January and 9 March 2018. [NAME]’s concern was that the vehicle was being partially checked and then being used to do a school run after which the PMI was completed. He was also concerned about the discrepancy between the defects recorded on the two sheets. [NAME] volunteered that the distance between the Exeter site and the [NAME] site was about 50kms and that would explain the mileage. He could not provide evidence of a brake test having taken place.

29. The [NAME] then referred to [NAME]’s report which noted that defects were found at some [NAME] that had not been reported by the drivers and so it followed the driver defect reporting was unsatisfactory. Further, some VOR notes did not record mileage when a vehicle was taken off the road nor was there a clear back in service inspection date which is why he recorded that there were maintenance gaps of up to 14 weeks and the VOR notices could not be verified as reflecting the true time the vehicle was off road for because of the missing mileage records. All of the vehicles that [NAME] had seen still had the incorrect legal lettering on their sides and this would attract an Offence Rectification Notice if the vehicles were examined by a Traffic Examiner. He had photographed three vehicles on 14 November 2018 in Okehampton with incorrect legal lettering even though he had spoken to [NAME] the [NAME] in Northlew about the issue in July 2018. [NAME] averred that he had not seen the photographs referred to despite having asked for “all the raw data” relied upon by [NAME]. He was not aware that the issue had been raised with the [NAME] and the problem could have been easily remedied because they kept legal lettering in stock.

30. [NAME] then dealt with his findings arising out of the fleet inspection: he inspected three vehicles and issued 3 advisory notices mostly for first aid kits and out of date fire extinguishers. There was also a tachograph displaying a fault and a suspension warning lamp illuminated with no driver defect reports showing that these defects had been reported. He confirmed that there were no maintenance facilities at the operating centre and that maintenance was carried out at the [NAME] operating centre and with some carried out at [NAME]. However, there were no maintenance contracts on file. There was a wall planner. [NAME] recorded that the MOT failure rate in the five years prior to his investigation was 44% although the [NAME] highlighted that there were difficulties in providing accurate information on the failure rate because [NAME] were not specified on PSV licences unlike HGV vehicles.

31. [NAME] had further recorded that the five year PG9 rate was 32% (national rate being 17%) and a two year PG9 rate of 36% (national 16%). Three PG9s recorded six brake defects. However, there had been no

[2020] UKUT 345 (AAC) 11 T/2020/12 roadside encounters since 15 December 2017. He confirmed that [NAME] in Exeter had co-operated with him. He continued: “it was noted whilst I was at both the [NAME] office Northlew and the [NAME] office Exeter, that enquiries were coming into both offices for all three [NAME] and [NAME], I was told that the large computer server on the [NAME] office wall linked/networked all three [NAME], referred to by staff at both [NAME], and [NAME] as the Exeter, Northlew and Bristol depots”. It was [NAME] who told [NAME] about the link between the [NAME]. Further, whilst at the [NAME] office, [NAME] heard an operator saying “Oh no, you’ll want our Exeter branch. You’ll want our Bristol branch for that”. The [NAME] expressed “very real concerns” that the three business were being operated as one. [NAME] was similarly concerned.

32. [NAME] was asked to comment upon the copy of a gate check dated May 2019 which [NAME] had produced at the last hearing which stated that four vehicles had been checked a week. [NAME] told the [NAME] that this was the first record of this type that he had seen from [NAME]. He did not understand why the records were not with the records he had been shown. [NAME] volunteered that the checks were in a separate compliance folder.

33. In the Conclusion section of his report, [NAME] repeated his comments and concerns about [NAME] having two sets of PMI records. He recorded:

“I clearly remember my last encounter with the [NAME] some years ago. They remarked that they were going to stop putting defects on the records if it was going to result in trouble”.

[NAME] clarified that the comment was made by [NAME] in 2014 and in answer to [NAME]’s assertion that the comment “could be made up”, [NAME] responded “but I don’t make things up”.

34. [NAME] then went through his redacted notebook. In addition to the matters set out in his report, [NAME] had recorded:

• 17 April 2018: a Driving Examiner had told him that he had to abort a driving test with a [NAME] vehicle as there was a red warning light on the dash which had been covered up with a laminated route card • The advisory notices issued on the date of the fleet inspection would have been automatically sent to the operating centre by Swansea on that day as soon as they had been logged on the DVSA system. [NAME] did not however receive the notices (a matter complained about by [NAME]) because the address of the operating centre had been changed by [NAME] without informing the Central Licensing Office. Further copies were sent some months later • By 24 September 2018, he had been “bombarded with FOI requests” from [NAME] which [NAME] described as “time wasting tactics”.

35. At the conclusion of the notebook reading, the [NAME] reminded [NAME] that the notebook had been disclosed because [NAME] had asked to see it as part

[2020] UKUT 345 (AAC) 12 T/2020/12 of his attack on the integrity of the Vehicle Examiner. The [NAME] asked [NAME] to state his grounds for the attack that he had made. [NAME] referred to the reference made by [NAME] during the previous hearing to vehicle SIG 8434 which had been included in [NAME]’s calculation for the MOT fail rate. At this point in the proceedings, [NAME] and [NAME] informed the [NAME] that SIG 8434 had previously been registered as T184 AUA and operated by [NAME] and that on 9 February 2017, whilst still registered to [NAME], it had been issued with a PG9 for a defective indicator. [NAME] produced the prohibition notice which had been issued during a school check when the vehicle was being driven by Victor Manuel Guerrero. The vehicle was then referred for an MOT test and the PG9 was removed on 16 February 2017. The vehicle was transferred to [COMPANY] on 8 August 2017 and then on 9 February 2018, the vehicle had failed an MOT test for a defective service brake. [NAME] accepted that he was aware of registration T184 AUA but initially averred that he could not say whether the vehicle was being operated by [NAME] at the time of the PG9 being issued on 9 February 2017. He accepted that [NAME] had employed the driver. Later, he accepted that the vehicle was being operated by [NAME] when the PG9 was issued and he averred that [NAME] had included the MOT failure on 9 February 2018 in his calculations “trying to bunch it on to me to make my record worse”. When asked whether he was asserting that [NAME] had included the MOT failure deliberately, [NAME] responded “I’m saying I don’t know”. The issue was further discussed. [NAME] explained that the “list” he had referred to in the previous hearing (see paragraph 29 of the 2019 decision) was in fact that taken from the VOL system. He believed that he had accepted that the vehicle had changed hands prior to 9 February 2018 at the previous hearing. [NAME] averred that he had been “fair and justified” in challenging the integrity of [NAME] as a result of this issue.

36. The [NAME] asked [NAME] to set out the other issues which caused him to question [NAME]’s integrity. He relied on [NAME]’s findings that the maintenance of the company’s vehicles was not being undertaken “in house” as declared. [NAME] averred that the arrangement he had with [NAME]/[NAME] was one which had been approved by the [NAME] during a help-line discussion and that constituted professional advice ([NAME] denied that it was he who had given such advice as he would have told [NAME] that he needed some form of contract). [NAME] averred that [NAME], the [NAME] at [NAME], was in fact self- employed and when he was working on [NAME] vehicles, he was working for [NAME] and was being paid separately. It followed, that a maintenance contract was not required (this is at variance with [NAME]’s assertion set out in paragraph 15 above that he did have such a contract). When asked whether he had evidence of invoices paid by [NAME] for [NAME]’s work, he responded “I have somewhere”. There were no further matters raised by [NAME] which he contended supported his attack upon [NAME]’s integrity.

37. [NAME] then cross examined [NAME]:

[2020] UKUT 345 (AAC) 13 T/2020/12 a) [NAME] agreed to produce the photographs taken by him on 14 November 2018 recording the incorrect legal lettering on three of [NAME] vehicles (it is unclear whether he in fact did so although ultimately, the [NAME] did not come to any determination on the issue); b) He agreed that he may have been shown evidence of [NAME] having attended a two-day [NAME] manager refresher course; c) The reason for the fleet check taking four hours was that whilst [NAME] and his colleague had only checked three vehicles, they also checked the records in the office as well (which included scanning them all); d) It was incorrect to describe the fleet check as “not disappointing” and there were occasions when no PG9s were issued during a fleet check but the investigation was still marked as “unsatisfactory”; e) [NAME] had described the parking arrangements as “mostly satisfactory” as the size of the operating centre for ten vehicles meant that parking was “a bit tight” as illustrated by a collision within the yard (see paragraph 14 above); f) The OCRS score: whilst [NAME] had calculated an MOT fail rate based on this score, [NAME], (along with [NAME] and the [NAME]) considered this approach to be misconceived because the OCRS was based solely upon encounters, prohibitions and straightforward MOT passes or failures. The score did not take account of instances where a repair was required at the testing station before a pass could be achieved. They were classified as a PRS. Further the OCRS score was an internal scoring system to assist the DVSA with risk only and should not be used to calculate MOT failure rates. The 44% MOT failure rate quoted in [NAME]’s report was calculated over the previous five years. [NAME] requested that [NAME] provide the MOT failure rate for the period when he was the [NAME] manager of the company. This was not done as there was insufficient time.

38. At the outset of the second day of the hearing, [NAME] informed the [NAME] that he had wrongly challenged the manner in which [NAME] and his father recorded brake test results using the [NAME] meter during the course of discussions on the subject on the previous day. [NAME] informed the [NAME] that he had been so concerned about the assertion that the brakes on the vehicle in question may not be “legal” that he had taken the vehicle off the road the night before and had put the vehicle through a rolling road brake test prior to the public inquiry resuming.

39. [NAME] then gave evidence. He had prepared a statement which was read out. The only matter of relevance to this appeal was that he took issue with [NAME]’s account as to how [NAME] came to have [NAME]’s VOL log in details (which the [NAME] advised did not go to a matter of integrity). Rather than cross-examining [NAME] as he was invited to do, [NAME] instead explained what he had meant when he had told [NAME] in the telephone call referred to in paragraph 7 of the 2019 decision about [NAME]’s resignation making “things difficult” for him and his father. What he had meant was that he had a vague idea to do something else with another business.

[2020] UKUT 345 (AAC) 14 T/2020/12 40. The [NAME] then turned to [NAME] and read out paragraph 6 of the 2019 decision. [NAME] clarified the evidence he had given at the previous hearing that [NAME] had become a “zombie operation, existing simply to pay wages ..”. What he had meant was that a lot of coach companies were reliant on county council work which paid at a minimum level and therefore, successful companies had to find other things to do. He and [NAME] wished to take on some services dropped by Stagecoach and to change the profile of the fleet to include DDA compliant coaches. The comment was not meant to be a criticism of [NAME]. [NAME] confirmed that at the time that [NAME] and [NAME] resigned from [NAME], the company was not considered to be non-compliant and [NAME] also confirmed that at the time, the company had its own workshops with three bays and all of the necessary maintenance equipment and facilities save for a RBT. The PMI frequency was five weeks but the vehicles were inspected on a four weekly regime. As at December 2016, the company’s maintenance was in extremely good order and nothing like how it was found to be when [NAME] investigated in June 2018.

41. The next relevant witness was [NAME]. Following a short summary of his long involvement in coach operation, he went on:

“so what happened is that when my firm [NAME] took over the maintenance of [NAME] because they’d dispensed with their workshop and had no facilities for underneath inspection .. we came to an arrangement where we would let [NAME] use our premises for their underneath inspections .. assisted by a contractor who worked for us and who was quite agreeable to working for [NAME] and helping them with this maintenance work. So basically what we arranged to do is [NAME], a [NAME] employee in Exeter, would inspect the top side of the vehicles. He would check all the seat belts, the lights, wheel nuts, and as much as he could without the use of a pit. He then would fill out an inspection form as far as he possibly could … it was the white form. No significance in that .. he obviously couldn’t complete all the sections of this form because some of them related to items underneath the vehicle … After he’d done that the vehicle would be transferred to my workshops at Northlew where we have very adequate inspection facilities and equipment. [NAME] .. would check the vehicle over again and concentrate on the underside. He would then, on completion of his inspection, complete an inspection form which he used as a tacho disk with a blue copy .. So the vehicle was then adequately inspected and normally it would be [NAME] that did the brake test, although sometimes if the Bowmonk machine was at Exeter, [NAME] was quite capable of doing it, but I think more often than not it was done in Northlew. An advantage of this scheme is that two people inspected the same vehicle so we had two fresh sets of eyes looking at it and it did encourage a little bit of competition because [NAME] would say to me, “I’[NAME] gotta write everything down on this form. I don’t want [NAME] to find out .. find anything I’[NAME] missed”. Now when the vehicle came to [NAME] would look at it he’s day to me, “Oh, I can bet I can find something [NAME]’s missed. I’m gonna have a good look see what I can find”. So with two sets of eyes giving this vehicle a vigorous inspection the result was that very few, in fact seldom, was a defect ever left undetected. I consider this good practice.

[2020] UKUT 345 (AAC) 15 T/2020/12 [NAME] says he’s never heard of any such procedure in all his days, well he’s only a youngster. There’s plenty of time for him to find out things like this. So I just want to get his confirmation now and [NAME]’s that they are satisfied with this procedure and in no way was any falsifying of documents (sic)”.

42. The [NAME] indicated that he was not satisfied with the procedure as described. The Guide to Maintaining Roadworthiness set out a procedure whereby there was one inspection record which recorded who inspected the vehicle, when it was inspected, with full details of the inspection and with rectifications shown. One of the problems found by [NAME] was that defects were identified but no rectification was shown. Moreover, the [NAME] (and the vehicle examiners) had never come across a split system of inspections before. The [NAME] described the system as “horribly wrong” and was of the view that it demonstrated a “level of incompetence which is staggering”.

43. [NAME] told the [NAME] that following [NAME]’s “advice” the split system of inspections had stopped. [NAME] then intervened saying “I would like to suppress the competition element. I don’t think that it was a case of they’re competing with each other (sic)”. [NAME] then revised his choice of words to “gentle pressure”. He went on:

“.. I applaud [the DVSA officers] for the energy and enthusiasm they’[NAME] devoted to this Inquiry. We heard that two men visited Northlew and spent five hours looking at three coaches. That is ten-man hours to look at three coaches. It must’[NAME] been a very intensive investigation. No prohibitions were issued although apparently three months later an advisory defect notice for a first aid kit was issued. Following that [NAME] spent day after day scanning files so obviously they’[NAME] put a lot of effort into this. What surprises me .. today … is I’[NAME] heard no mention of wheel loss, no mention of prohibitions for bald tyres, no “S” marked prohibitions issued at MOT. I’[NAME] heard no complaints about prosecutions for vehicles being used without tax, MOT or insurance … So all I have heard today are complaints about inspection forms, first aid kits, fire extinguishers, a couple of references to MOTs. .. I do think they are serious issues but they’re not the major issues that commonly occur at public inquiries .. I wouldn’t class [NAME] as seriously non-compliant.”

[NAME] considered that he and his son had been very harshly treated in 2014 when they had been disqualified as directors and [NAME] managers. He wanted to put “a good word in” for his son. It was very difficult to encourage young people into the passenger [NAME] industry:

“I feel again he’s made, like everybody he’s made a few mistakes. He’s got into the habit of falling out with DVSA basically because he’s had the courage to put his head above the parapet and challenge them on certain occasions. Sometimes he may have been right. Sometimes not so right, but you did say earlier on that you encouraged [NAME] to challenge DVSA PG9 decisions .. I think perhaps [NAME] has gone a bit too far. Nobody wants to cause mental health problems to any DVSA officer .. but in the same way as [NAME]

[2020] UKUT 345 (AAC) 16 T/2020/12 when we’[NAME] .. [been] harassed by officials it causes stress and mental health disorders .. I wish we could have greater cooperation with the DVSA and I wish they were more helpful to us and they would find that we’re honest, open, transparent family .. and we don’t want to fall out with anybody and we don’t want to be called to public inquiries ..”.

44. [NAME] then gave evidence. Now that he had heard the explanation for the MOT failure on 9 February 2018 being incorrectly included in [NAME]’s calculations, he was able to “step back from making an allegation of integrity because it’s been cleared up”. He now accepted that a mistake had been made. [NAME] then returned to the issue of the MOT failure rate and his own calculations for the period during which he was the [NAME] manager using the OCRS. His conclusion was that the MOT pass rate during that time was 70% which was something to be proud of. He then went through various OCRS scores between 18 October 2017 and 17 September 2018. [NAME] indicated that he could show this evidence to the [NAME] (but did not). He contended that by the time he had stepped down from being [NAME] manager, the OCRS scores were green/green although he accepted that he could not escape the overall picture of compliance “which was poisoned .. in the period before I took control”.

45. [NAME] was asked to comment on [NAME]’s use of the OCRS scores. He described the OCRS as a targeting tool for the DVSA; it indicated risk alone and the scores depended upon the particular issues that were being concentrated on at any given time for example, overloading or insecure loads. The appropriate data to look at when considering whether a PSV operator is compliant is the roadside encounter history and the MOT pass rate. In fact, there had not been any roadside encounters with [NAME] vehicles since December 2017.

46. [NAME] accepted that OCRS was “not without its faults” but [NAME] were encouraged to monitor the scores. His analysis showed that there had been a marked improvement in maintenance and that the issues raised by [NAME]’s investigation was “more lack of paperwork than .. lack of maintenance being carried out”. There was no “laissez-faire attitude to maintenance”. In an ideal world he would have been able to extract from the [NAME] the total number of vehicles checked, the annual test fail rate during his time as [NAME] manager. [NAME] reminded [NAME] that he had all of the data necessary to be able to undertake that exercise in the form of his own maintenance records.

47. He accepted his father’s description of the split maintenance system which had been devised and described it as a joint effort. The white sheets had originally been used when [NAME] had its own maintenance facilities and their use continued but the blue sheets were “the official sheet” which was signed off. Whilst the blue sheets did not record all the defects found and rectifications undertaken, the white sheets were stapled to them (although it is of note that the white sheets did not show rectifications either). He accepted that “occasionally” the two sets of inspections were on different dates. This

[2020] UKUT 345 (AAC) 17 T/2020/12 prompted the [NAME] to exclaim “It is a bizarre chaotic system which you appear to have developed ..”.

48. [NAME] returned again to the OCRS and what could be extrapolated from them. The [NAME] advised him that for the purposes [NAME] wished to use them, they were “virtually meaningless” and “irrelevant”. He suggested that [NAME] concentrate on the issues arising out of the split maintenance system. [NAME] submitted that one of the qualities of a [NAME] manager was the ability to learn. Following the previous public inquiry, the split maintenance system had been abandoned. As for other positive features, he reminded the [NAME] that he also held a licence in the name of [COMPANY] with one vehicle authorised. No maintenance issues had been identified. [NAME] had produced one PMI sheet for the vehicle operated on that licence for [NAME] to consider and in answer to questions from [NAME] averred that one record was insufficient for him to form any view of the maintenance of the vehicle. [NAME] then asked the [NAME] to consider the contents of the witness statement he had produced and that there had not been any serious maintenance failings identified. His conduct throughout had been “open and honest” and he reminded the [NAME] that he had removed a vehicle from operation the evening before when [NAME] had misinterpreted the readings from the Tapley meter in respect of that vehicle and arranged for a RBT. He considered that it was open for the [NAME] to find that [NAME] was an operator who could be trusted and that whilst he had made mistakes, he had learned from them. Finally, whilst his repute as [NAME] manager had been restored by virtue of the Upper Tribunal decision in March 2019, he had not gone onto apply to be a nominated [NAME] manager for any other licence as he had wished to know the outcome of the rehearing. He had therefore served the equivalent of a ten-month disqualification period.

49. Having concluded the evidence, the [NAME] wished to make clear for the benefit of [NAME] that he did not doubt his integrity, honesty and professionalism. Whilst he had not enquired of [NAME] about how the allegations made by [NAME] had affected him, the [NAME] took notice of the fact that being subject to such allegations would have been stressful, particularly for a public official performing safety checks over many years. If it had not been stressful, the [NAME] would “be amazed”. [NAME] responded “It has been sir”.

The Traffic Commissioner’s decision

50. In his written decision dated 19 December 2019, the [NAME] found that [NAME] was a truthful, professional and honest examiner and the [NAME] accepted his evidence. The [NAME] found that it was “entirely reasonable” for [NAME] to believe that the dual maintenance records held by [NAME] were evidence of false records. However, the [NAME] had concluded that they were not evidence of deliberate falsification, but rather, they reflected a “culture of systemic incompetence and disregard for basic principles of road safety”. There was no justification for the very personal and hurtful allegations made by [NAME] against [NAME] and the [NAME] empathised with the officer

[2020] UKUT 345 (AAC) 18 T/2020/12 in respect of the strain that he would inevitably have been placed under. It was “evident” to the [NAME] that [NAME] was “under stress”.

51. As for [NAME], the [NAME] found him to have been an “entirely credible, professional and honest witness” and he accepted his evidence. Again, it was “entirely reasonable” to suspect falsification of records; however, rather than deliberate falsification, the evidence “describes the grossest of incompetence by [NAME] and [NAME]”.

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

53. The [NAME]’s determinations in respect of [NAME] commence at paragraph 149 of his decision which reads:

“I accept that [NAME] took a vehicle off the road when [NAME] gave evidence that mistakenly suggested that there were problems with brake testing, that goes to his credit. Another positive feature in the balancing exercise undertaken is that he took off the road for a day a vehicle which the DVSA had reasonably but mistakenly thought was operated by him, was operated by someone else”.

The [NAME] further found that [NAME] was “apparently intelligent and articulate” although these qualities had not prevented him from making some “appalling errors of judgement”. The extent to which those were due to his father’s influence was unclear. The [NAME] found that [NAME] grasped at straws to deflect criticism, an example being his claim that OCRS scores demonstrated good compliance. If he properly understood (or listened to) the DVSA examiners he would have appreciated the limited value of relying on OCRS

[2020] UKUT 345 (AAC) 19 T/2020/12 scores in a PSV operation where there have not been any roadside encounters. The [NAME] noted that [NAME] had demonstrated tenacity, however, his “consistent failure to accept personal responsibility is a concern. Blaming others does not absolve him from his responsibilities as a [NAME] manager in a regime where he has allowed for [NAME] to be spread across two different sites and without proper facilities. Instead of actively listening to DVSA examiners and taking on board constructive and valid criticisms he resorted to unjustified personal attacks questioning professionalism and integrity”. Whilst he claimed to know the STC’s statutory guidance, he did not understand them (assuming he had read them). The number of occasions [NAME] had complained about individuals and the way he went about that illustrated his lack of personal responsibility. His instinctive reaction is to “appeal, complain or make personal attacks if an adverse suggestion is put to him”. The [NAME] advised him to actively listen and learn. The use of a chaotic dual PMI system with inadequate partial checks on different dates did not amount to a satisfactory maintenance regime and for that reason alone [NAME] should lose his good repute as a [NAME] manager and be disqualified as a director. The [NAME] considered that the “unjustified and sustained personal attack on the integrity of an experienced examiner has patently caused real harm. The personal impact on others appeared to be of little or no consequence to [NAME]. He merits losing his good repute as a [NAME] manager and being disqualified as a director as a consequence of his personal attacks. [NAME] referred to a recent case involving a complaint where the Court of Appeal emphasised the need for operator licensing to be based on trust. I do not trust [NAME] and his inability to listen and engage with examiners is such that DVSA examiners might need specialist training and counselling before engaging with him. [NAME]’s behaviours are incompatible with a licensing regime which requires either trust or a proper appreciation for road safety. He fails on both counts and merits disqualification on both grounds”.

54. The [NAME] then went onto make some bullet point findings. In short, save in respect of rejecting the suggestion that the purpose of the split maintenance system was to disceive, he preferred the evidence of the DVSA officers on all issues. The following reflected on [NAME]’s lack of competence: the defective brake testing system; the lack of records; inaccurate records; the lack of RBT or other measured brake tests; the lack of written records in respect of a vehicle said to have been loaned to another operator; his failure to understand the [NAME]; his failure to ensure that the records accurately showed maintenance arrangements. The [NAME] rejected [NAME]’s evidence that the split maintenance system was one which the [NAME] had approved (an example of [NAME] blaming others) and he had failed to ensure, contrary to the advice of [NAME], that the [NAME] had been properly notified of maintenance arrangements. [NAME] had allowed the introduction of a “woefully inadequate and inherently dangerous maintenance regime whereby there were two half baked inspections, both inadequate and sometimes on different dates”. [NAME] did not accept [NAME]’s evidence but rather, made “unjustified aspersions”. If he were correct, then [NAME] could have produced the evidence to support his position but he did not. Rather, he

[2020] UKUT 345 (AAC) 20 T/2020/12 made “wholly unjustified and cruel allegations in order to deflect his own failings”.

55. The [NAME] made reference to a balancing exercise and noted that whilst he had identified some positive features they were heavily outweighed by the significant road safety concerns as a result of the maintenance investigation and the unsubstantiated false allegations against DVSA officials. He reminded himself of the importance of TCs being able to trust [NAME] and referred to the Upper Tribunal cases of 2012/034 [NAME] t/a [NAME] and 2006/227 [NAME] and further referred to the Upper Tribunal case of 2007/459 [COMPANY] in which it was confirmed that there was a need in appropriate cases to make an example of an operator so as to send a warning out to the industry as a whole. Clearly the [NAME] considered that this applied to [NAME]. Moreover, the [NAME] referred to T/2017/55 [NAME] in which the Upper Tribunal emphasised the need for consistency in decision making relating to director disqualifications and [NAME] manager repute. The [NAME] had no difficulty in this case determining that [NAME] must be disqualified under s.28 of the [NAME] Act 1985 and lose his good repute as a [NAME] manager not only in the interests of the travelling public and other compliant [NAME] but also as a result of the unwarranted attacks upon a public official. The [NAME] determined that this was not a case where it would be appropriate to have a time limited exclusion from the industry so as to allow the passing of examinations or to allow a period of time to pass. [NAME] would need to demonstrate a different character and that he was able to actively listen to others without reacting negatively, a feature that did not appear to come naturally to him. In the result, the [NAME] made the orders set out in paragraph 1 above.

The Appeal

56. In the days leading up to [NAME]’s appeal, he requested a copy of his witness statement along with the analysis which had been put before the [NAME] during the course of the re-hearing. A witness statement which had not made its way into the appeal bundle was identified by the [NAME]’s clerk and duly forwarded to [NAME]. This was the statement that had been produced by those representing [NAME] at the previous public inquiry and which had been put before [NAME] on day two of the re-hearing in the absence of one filed by [NAME] pursuant to the directions made (see paragraph 8 above). [NAME] was not satisfied with this statement, asserting that he had submitted an updated version of this statement during the course of the re- hearing and requested a copy. The [NAME]’s clerk confirmed that [NAME] had not submitted a second statement and he produced an excerpt of the transcript along with other page references which confirmed that the [NAME] only had the benefit of the statement produced at the first public inquiry. [NAME] then requested a copy of the digital recording of the two-day re-hearing as he was “a little troubled” by the “documentation” he had been sent. He was considering whether he should submit further grounds of appeal. He was asked to set out the reasons for being “a little troubled” so that his application could be considered on its merits. [NAME] then withdrew his application

[2020] UKUT 345 (AAC) 21 T/2020/12 although he did submit further grounds of appeal at the outset of the appeal hearing.

57. [NAME]’s combined grounds of appeal amount to an extensive, wide ranging, repetitive discussion over twenty-one pages which include matters which are irrelevant. The numbering of the grounds below do not follow those of [NAME]’s in his skeleton argument.

58. Ground 1 – the [NAME] failed to take account of [NAME]’s second witness statement submitted in accordance with the [NAME]’s directions

[NAME] asserted that he had filed with the OTC prior to the hearing and in accordance with the directions of the [NAME], a witness statement other than that which he had previously relied upon during the first public inquiry. [NAME] asserted that he had not only filed the second witness statement prior to the hearing but he had then provided a further copy of the statement to the [NAME] on the morning of the second day of the re-hearing. He submitted that whilst it was clear that the [NAME] then took time to read that statement, he then did not take it into account. The witness statement included OCRS calculations and [NAME]’s analysis of the MOT statistics using the OCRS along with a list of positive features. The Tribunal asked [NAME] to hand up a copy of the witness statement he was referring to. He was unable to do so.

59. We are satisfied that there is no evidence before the Tribunal save for [NAME]’s bare assertions, that he had complied with the directions made by the [NAME] on 18 September 2020 whether within fourteen days or otherwise. Indeed, there is evidence to the contrary. The only witness statement produced at the re-hearing was that relied upon by [NAME] during the first public inquiry. The following references are of importance (numbers in brackets are references to appeal bundle pagination) and are found in the transcript of day 1 of the hearing:

a) (331H) – when the [NAME] was taking [NAME] through his notebook, the officer accepted that he had not produced his notebook within the time specified by the [NAME] in his directions, at which point the following exchange took place: [NAME]: And in fact I gave also a direction for [NAME] to produce evidence, which I have not received yet. [NAME]: Yeah. No, I was waiting to … before I could give you a skeleton argument I was waiting to see if there was any addition evidence (sic) or there .. [NAME]: Well it does not you (sic) actually setting out why you believe that the officers .. if you are questioning integrity it does not stop you setting out your case. It might have helped you give further evidence … [NAME]: no, fair comment.

b) (370E) when the [NAME] was taking [NAME] through his report, he asked [NAME] whether he agreed with the officer’s evidence about vehicle [ID] and the following exchange took place:

[2020] UKUT 345 (AAC) 22 T/2020/12 [NAME]: I am not entirely sure. [NAME]: Can I remind you, [NAME] that I gave directions which required you to produce a statement as well. What I had expected is if you had complied with that direction you would have produced a statement saying “well this paragraph I disagree with because of X and that paragraph I agree these facts but not other ones. [NAME]: Mmm-hmm. [NAME]: And that is the reason why it is taking a long time today – [NAME]: [NAME]: because you have not complied with the directions. I understand the point that you would rather the notebook, you would be able to see a typed copy of it, but one of the reasons it is taking a long time is that you are giving explanations now which you could have given in a statement, which is why I asked for the statement. [NAME]: Mmm-hmm. Okay. … [NAME]: Have you got evidence to challenge that? [NAME]: (no verbal response)

c) (401B) when [NAME] raised the issue of the MOT for SIG 8434 being included in [NAME]’s analysis of MOT failures: [NAME]: It is not clear what data it is you are looking for without being specific. If you had written to me to say “the data which I will be interested in ..”. You were asked to produce a skeleton and to do a statement, which you have not done. You have said that you cannot do it until you have seen this, the notebook, and the answer is the notebook does not actually help you at all. You are the one who is casting aspersion. You have said there are inconsistencies … If you are saying that there is an issue which is raised in the Upper Tribunal’s Decision that you think is of some significance, you have not raised that in your statement, partly because you have not produced a statement. [NAME]: You are asking me the question and I’m giving you the answer now.

d) (424H) when [NAME] asserted that he had received professional advice from the [NAME] about using the split maintenance system, the [NAME] commented: “You have not produced evidence of that but you say that. All Right. In many instances you have made assertions and say have got evidence of things and you have not actually produced them. What does concern me is that I did ask and I gave a direction about producing a statement because I wanted to know what the issues were relating to your challenges before today’s hearing. It is now twenty five to five and we are still on [NAME]’s evidence. Part of the reason, the prime reason, for that is that if you had produced this statement setting out what your views were and what the position was, it would have made

[2020] UKUT 345 (AAC) 23 T/2020/12 it much, much easier for me to deal with this Public Inquiry. It is the reason why it has to clearly go into a second day”.

Having considered the above excerpts from that transcript, we are satisfied that had [NAME] complied with the [NAME]’s directions by filing a witness statement as he now asserts, then the [NAME] would not have made repeated comments about his failure to do so and furthermore, [NAME] would have quickly corrected the [NAME] when he made the comments that he did, by informing the [NAME] that he had complied with his directions. He did not do so.

60. At the beginning of the second day, [NAME] enquired as to whether the [NAME] had received the statement that he had handed in that morning. The [NAME] confirmed that he had and the following exchange took place:

[NAME]: Before the hearing started, the clerk said that he had a document which was handed in at a previous, or referred to at a previous hearing, and I have said I should not receive documentation unless it is sent to other people. So is this something I have not seen? All right, what document is this? [NAME]: This was a statement prepared for my last hearing but it is still relevant to this hearing. [NAME]: All right. [NAME]: If I had had it yesterday it would have helped progress. I think that is what you were asking of me and I was able to locate it. … [NAME]: ..You produced a statement for the last hearing. I required you to produce a statement for this hearing which you did not do, but you did produce one for the last hearing. Are you asking me to read the statement from the last hearing? [NAME]: Yes. … [NAME] (solicitor for [NAME]): I have seen it .. I think what [NAME] is referring to is a statement which … was submitted by his then legal representative before the last hearing. So that was his brief. [NAME]: All right. So the content of the statement is essentially described in the Upper Tribunal decision anyway.

This exchange confirms that the statement that was produced on the second day of the hearing by [NAME] was the very same statement that had been produced for him by his solicitors for the first public inquiry. There is nothing to suggest that another witness statement was submitted by [NAME]. Whilst he relies upon the [NAME] noting at the end of the second day that [NAME] had “given me a list of some of the balancing features that need to be taken into account”, it did not follow that the list was one which was written as opposed to the list of positive features [NAME] contended for in his oral evidence (see paragraph 48 above). If there had been a second witness statement prepared in compliance with the [NAME]’s directions, we have no doubt that [NAME] would have been able to provide a copy to the Tribunal. He was unable to do so. Moreover, it is of note that in his original grounds of appeal submitted with his

[2020] UKUT 345 (AAC) 24 T/2020/12 notice of appeal (pg 653), [NAME] confirmed that the witness statement he relied upon at the re-hearing was that prepared by his legal representative for the first public inquiry along with inspection sheets for [COMPANY] (although he produced only one such sheet). In the result, we are satisfied that this ground of appeal on this issue is without foundation. Moreover and for the avoidance of doubt, the [NAME] did take time to read the witness statement that was available to him prior to [NAME] giving evidence.

61. Ground 2: The [NAME] was wrong to find that [NAME] had suffered stress as a result of [NAME]’s conduct and should not have taken it into account in his balancing exercise and when determining the issue of good repute

[NAME] submitted that prior to making a determination about the effect that [NAME]’s conduct may have had upon [NAME], he should have put it to [NAME] that his conduct had had an adverse effect upon [NAME]’s wellbeing. [NAME] further submitted that in any event, there was no evidence that [NAME] had suffered stress as a result of [NAME]’s conduct. He asserted that he had “done nothing wrong”. He had been professional and objective throughout and described his communications with [NAME] as being “polite and courteous”. He was entitled to make a complaint and had grounds for doing so. [NAME] “exhibited the correct level of diligence in his report” he would not have reported that [NAME] was working with [NAME] when prohibited from doing so (the prohibition having been removed in December 2016); he would not have included the MOT failure of SIG8434 into his MOT calculations when [NAME] “had never owned or operated” the vehicle and he would not have told an employee of [NAME] what the OCRS was for the company (not a matter explored in the public inquiry although mentioned in [NAME]’s [NAME] response). [NAME] doubted the integrity of not only [NAME] but also impliedly, [NAME] because of the way in which [NAME]’s notebook had been redacted, making [NAME] suspect that hidden behind those redactions were “disparaging and unprofessional comments” made by [NAME] about [NAME]. He pointed to the choice of language of [NAME] in his notebook to describe [NAME]’s conduct such as “fannying about again … timewasting tactics”. [NAME] submitted that he was sympathetic to those who suffer mental illness but it was unlikely to be caused by one particular factor. In any event, if mental illness had been a significant issue, then where was the DVSA’s duty of care towards [NAME]?

62. [NAME] reminded the Tribunal that on the second day of the re-hearing, he had in any event stepped back from the allegations he had made about [NAME] although he did not know why “they” (being the officers) “would try and make statistics worse”.

63. Our starting point is [NAME]’s response to the [NAME] in which he questioned [NAME]’s honesty and fairness. He considered that too much guesswork had been used by the officer when preparing his maintenance investigation report. [NAME] appended to his response an excerpt from the Civil Service Code and suggested that [NAME] should follow it. The excerpt related to Standards of Behaviour and in particular, integrity, honesty,

[2020] UKUT 345 (AAC) 25 T/2020/12 objectivity and impartiality. [NAME] concluded that [NAME]’s conduct was “far from professional” and he required a response to the concerns he had raised with regard to [NAME]’s “capability and professional conduct”. [NAME] then made persistent requests for the “the raw data” that [NAME] had used to compile his report, even though the data was that of the company which remained in the possession of the company at all times. He then made a formal complaint to the Department of [NAME] about [NAME]. A copy of the complaint was not within the papers but whatever the contents, such a complaint is a serious matter. At the first public inquiry, two matters became apparent: [NAME]’s information that the prohibition against [NAME] having anything to do with [NAME] which was out of date. It had in fact been removed on 1 December 2016. [NAME] or [NAME] were aware of that change. Secondly, when going through his evidence about the MOT failure rate during the first public inquiry, [NAME] mentioned registration SIG8434 which [NAME] immediately challenged as being a vehicle which the company had ever operated. As it transpired, the inclusion of this MOT failure whilst being a mistake was an understandable one. Contrary to [NAME]’s repeated denials that this vehicle had ever been operated by the company, it had been when it was previously registered as T184AVA up until at least 9 February 2017 when a PG9 had been issued in respect of it. [NAME] had mistakenly included the later MOT failure on 9 February 2018 because he had wrongly assumed that [NAME] had simply changed the registration number to a private plate as so many [NAME] do. These were mistakes on the part of [NAME]. There is no evidence of mala fides and neither they, together with the allegation that [NAME] had disclosed the company’s ORCS score to one of its employees, begin to justify the allegations made by [NAME] nor his complaints about [NAME] and to a lesser extent, [NAME].

64. The assertion that the [NAME] should have asked [NAME] whether he had caused stress to [NAME] as a result of his conduct is misconceived. It is not for [NAME] to say whether he had caused stress to [NAME] but rather the officer himself and of course he did inform the [NAME] that this investigation and the subsequent proceedings had caused him stress. But in any event, if [NAME] had given a moment’s thought to the likely consequences of making the allegations that he made along with the complaints not only to [NAME]’s senior officers but to the Department of [NAME] itself, he would or should have appreciated that it would be likely that [NAME] would be adversely affected by them. There is no evidence that he considered the consequences of his actions at all. Moreover, whilst [NAME] avers that the [NAME] should have taken into account the withdrawal of his allegations against [NAME] on day two of the re-hearing, that indication was too late and in any event not genuinely made bearing in mind his continued conduct in questioning the integrity of both officers during the course of this appeal. [NAME] is well aware that attacks on the integrity of DVSA officers if unfounded (as these were) go to the issues of trust and whether an operator is likely to accept criticism, advice and guidance in the future rather than resulting in complaints about the officers concerned. The [NAME]’s assessment of [NAME]’s conduct and attitude as set out in paragraph 53 above is beyond criticism and is well founded on the evidence. In

[2020] UKUT 345 (AAC) 26 T/2020/12 conclusion, the [NAME] was right to take into account in the balancing exercise when determining the issue of good repute, the stress suffered by [NAME] as a result of [NAME]’s conduct..

65. Ground 3: The [NAME] was wrong to reject [NAME]’s compliance analysis based on his interrogation of the company’s OCRS

During the course of both public inquiries, [NAME] asserted that his MOT first time pass rate was nearer to 70% rather than 44% as calculated by [NAME] using the MOT system. [NAME] had used the company’s OCRS to calculate his figures. In both public inquiries (and in [NAME]’s comments on [NAME]’s response to the PG13G&F), [NAME]’s approach was rejected by the DVSA officers upon the basis that: the OCRS is a tool to assess risk only; MOT passes following a failure of a vehicle at the testing station with remedial work carried out at the testing station in order to achieve the subsequent pass, were not marked as PRS on the OCRS; as [NAME] are not required to specify their vehicles on their operator’s licence, it was difficult to link a vehicle with an operator at any given time and so the OCRS was unreliable when it came to calculating the MOT pass rate of [NAME]; the traffic light system indicating compliance risks depended upon the areas of compliance that the DVSA was concentrating on at any given time. [NAME] averred before the Tribunal that [NAME]’s statement that the OCRS was “largely irrelevant” was “totally false”. Whilst the DVSA used a different system for compiling MOT statistics, [NAME]’s approach was the relevant one and should have been taken into account. Moreover, an analysis should have been undertaken of the respective figures during the periods of tenure of [NAME] and [NAME]. If such an analysis had been undertaken, then it would have become clear that [NAME] had improved the OCRS of the company to green/green from amber/amber.

66. We are satisfied that it has been abundantly clear to [NAME] from the moment that he received a copy of [NAME]’s maintenance investigation report that his use of the OCRS in an attempt to undermine the findings of [NAME] was one which was soundly rejected and that it did not withstand close scrutiny. If he was in any doubt about that, such doubt would have been dispelled by the time the first public inquiry had concluded and [NAME] had produced his written decision. [NAME] has not attempted to obtain any evidence which might support his approach or indeed undermine that of the DVSA. He simply continued with his bold and bare assertions that the OCRS was a valid tool for calculating MOT pass rates and PG9 figures and that [NAME]’s approach was wrong. The evidence before the [NAME] was clear and he was of course, able to draw upon his own knowledge as an experienced [NAME] of the purposes for which the OCRS could be used. Reliably calculating the MOT pass rate of [NAME] is not one of them. The determination of the [NAME] that “If [[NAME]] properly understood (or listened to) DVSA examiners he would have appreciated the limited value of relying on OCRS scores in a PSV operation where there have not been any roadside encounters” is well made. Whilst that finding relates to roadside encounters, the [NAME] accepted the evidence of the officers generally and in the absence of

[2020] UKUT 345 (AAC) 27 T/2020/12 any cogent evidence produced by [NAME] which had the effect of undermining the officers evidence on this point, the [NAME] was entitled upon the evidence to reject [NAME]’s approach and it follows that the [NAME] did not err in failing to take [NAME]’s analysis into account. As for separately analysing the company’s MOT pass rate when under the control of [NAME] from the rates under [NAME] and [NAME], this was not done. However, such an exercise would have made little difference to the overall findings of the [NAME] whether in respect of [NAME] as a [NAME] manager or as a director.

67. Ground 4: Flawed DVSA report

The basis of [NAME]’s assertion that [NAME]’s report was “flawed” is as follows: • [NAME] failed to disclose the notes he used to compile his report despite the [NAME]’s direction to do so. Rather, he produced “some kind of vague diary with basic notes that included lots of redactions and unprofessional/disparaging comments about me. The [NAME] concluded that this had no probative value and I agree” • Once it was acknowledged that SIG 8434 “was not mine”, the MOT statistics were not adjusted to reflect this which means that the data “used by the [NAME] to come to his decision was flawed and cannot stand ..” • [NAME] did not produce the list of vehicles which he maintained at the first public inquiry had been given to him by a member of staff of [NAME]. The [NAME] did not ask him to provide a copy • “they” would have “run a report on their IT system which compiled all vehicle MOT and encounters for [NAME]. The data would have returned a list of results, one of which would have been SIG. Why can I simply not have this report? The level of secrecy and avoidance indicates that there is a strong possibility of other incorrect entries”. [NAME] complained that whilst he had been told that the data was within the [NAME] that was not the case. The report was taken from “raw data files”. A forensic analysis of the report was needed and in the absence of such a report, [NAME] had been denied a fair and impartial inquiry.

68. We are satisfied that there is nothing in this point. Apart from the MOT passes taken from the MOT system and the PG9 history taken from the SAS and Citrix systems, [NAME]’s report was based entirely upon the company’s own maintenance records. Those remained within the control of the company at all times whilst [NAME] worked from scanned copies, making notes of dates, mileage figures and the like and then adding those into his report. The “raw data” belonged to and remained with the company.

69. In the normal course of events, diligent and compliant [NAME] study the DVSA maintenance investigation report compiled in respect of their fleet, check their own records to ensure the contents of the report are correct and if mistakes are identified, they bring those to the attention of the officer concerned and/or the [NAME]. Apart from the wrongful inclusion of an MOT fail for SIG 8434 (for which there is an explanation), [NAME] failed to put before the

[2020] UKUT 345 (AAC) 28 T/2020/12 [NAME] any evidence that the information contained in [NAME]’s report was flawed (his reliance on the OCRS has already been dealt with). In his response to the [NAME], he did produce schedules for four vehicles showing dates for [NAME] which he described as pre-MOT inspections, the records for which were not within the maintenance files of the vehicles concerned when [NAME] inspected them and [NAME] has not produced evidence in support of the schedules. The schedules were expanded upon in [NAME]’s witness statement but the combined effect of the schedules and the statement did not undermine [NAME]’s findings that on the face of the records, there were stretched intervals between [NAME]. We repeat that [NAME] did not at any stage produce documentation in support of the schedules. [NAME] also gave explanations for other aspects of [NAME]’s reports, such as mileage driven when vehicles were VOR’d and produced two invoices to show that one vehicle had been hired to [NAME]. Whilst the invoices covered the relevant missing mileage for that vehicle, the documents did not (nor did [NAME]) explain how it came to be that the vehicle was on the road at all when it was VOR’d. Other documentation appended to [NAME]’s statement did not take matters much further. In short, his [NAME] response and witness statement did not undermine [NAME]’s findings at all and even by the date of the re-hearing, [NAME] had failed to collate the evidence he said existed to demonstrate that he was a compliant operator and that [NAME]’s report was “flawed”. For example:

a) In relation to [NAME]’s conclusion that [NAME] had failed to notify the [NAME] of the change of business address in June 2018, [NAME] stated “I disagree with that”. When asked whether he had any evidence that he had notified the [NAME], he stated “Yes, I can get some evidence for that”. Such evidence was not subsequently forthcoming; b) During discussions about the company’s maintenance being undertaken by [NAME] at [NAME] asserted that he employed [NAME]. The [NAME] asked whether he had a copy of a contract of employment covering the arrangement to which [NAME] replied “I will have, yeah. Not with me today”. A contract was not later produced; c) When [NAME] was dealing with a split inspection which took place at Exeter and Northlew and over two days in respect of [ID] but with the same mileage, [NAME] was “not sure” whether he agreed with [NAME]’s evidence or not. He said that he would need to look at the records again and that he would “verify the position later”. He did not; d) When [NAME] was dealing with the absence of any brake testing between 30 November 2017 and June 2018 in respect of [ID], [NAME] stated that he nevertheless believed that brake tests would have been carried out along with an RBT check. He continued “I’d like to be able to see if I can produce evidence”. No evidence was produced; e) When [NAME] was discussing the VOR report for a vehicle which was said to be on loan to [NAME] without evidence of a hire agreement, [NAME] averred that there was such an agreement but he had not and did not produce it; f) When [ID] was discussed in the context of it having been VOR’d and then returned to use without evidence of a first use check (equivalent to a PMI), [NAME] was asked if he had evidence that such a check had

[2020] UKUT 345 (AAC) 29 T/2020/12 taken place to which he responded “I hopefully can find something ..”. He did not later produce such evidence; g) When asked whether [NAME] could contradict [NAME]’s evidence with regard to [ID] and missing mileage between the vehicle being VOR’d and the next PMI, [NAME] responded “no, not with me”. He did not later produce such evidence; h) During discussions about [ID] and a nine week gap between [NAME] contended that an MOT would have taken place during the gap and that he “could find evidence” of that. He did not later produce such evidence.

The [NAME]’s description of [NAME] as set out in paragraphs 53 and 54 above is one which is well founded on the evidence before the [NAME] and there was nothing before the [NAME] or indeed this Tribunal which could form the basis of a finding that once the two mistakes already identified above had been acknowledged by [NAME], that his maintenance investigation report was flawed.

70. Ground 5: The [NAME] failed to conduct a full and fair balancing exercise and wrongly concluded that [NAME] had lost his good repute

There are only two positive features identified by the [NAME] at paragraph 149 of his decision which are set out in paragraph 53 above. The first is the removal of a vehicle from the road overnight when [NAME] mistakenly suggested that [NAME] was misinterpreting the readings from the Tapley meter. That is a positive feature. The second is one which neither [NAME] or the Tribunal understand to be relevant to the facts of this case. It follows therefore that the [NAME] only identified one positive feature to weigh into the balance against the negative features.

71. In compiling a list of features which [NAME] asserted to the Tribunal that the [NAME] should have taken into account on the positive side, he failed to appreciate that compliance with the regulatory regime is not something that goes to the credit of an operator because compliance is expected. Further, he also failed to appreciate that as the [NAME] was conducting a rehearing, a failure to come to the same adverse findings as [NAME] could not amount to a positive feature to be taken into account. Moreover, the [NAME] could not make positive findings about matters when there was no evidence before him on that issue. It follows that the following matters raised by [NAME] could not have been capable of amounting to positive features in this case:

a) The fact that [NAME] did not find that [NAME] had been guilty of “nefarious behaviour” in connection with the sale of [NAME] to [NAME] or in the use of [NAME]’s VOL log-in details; b) That [NAME] had sought professional advice with regard to the sale; c) That he performed regular driving licence checks; d) That financial standing was maintained; e) That a forward planner was in use;

[2020] UKUT 345 (AAC) 30 T/2020/12 f) The reduction of [NAME] fleet from 15 to 12 to free up time for [NAME] to train as a commercial pilot. This was not mentioned at all during the rehearing; g) [NAME]’s attendance on various driver CPC modules in 2018 which are a legal requirement.

Other features which [NAME] wrongly asserted should be viewed as positive features and which confirmed his good repute:

a) The split maintenance regime was a functioning one that manifested itself in positive maintenance statistics: this assertion ignores all of [NAME]’s evidence about the significant and serious maintenance failings which were either caused by the split maintenance system or which were in addition to it. Not only was the split maintenance regime reckless and dangerous but [NAME]’s evidence demonstrated that the driver defect reporting system was sadly wanting (see paragraphs 21, 26, 28 and 29 above) and vehicles were being used when VOR’d and without first use checks and when PMI intervals were being stretched. Finally, the standard of record keeping was negligently poor; b) That on day two of the rehearing, [NAME] notified the [NAME] that he was withdrawing the allegations he had made against [NAME]: we find that these were empty words bearing in mind that [NAME] continued to make accusations against [NAME] and [NAME] during the appeal process (see paragraph 62 above);

The matters which carried little if any positive weight are as follows:

a) [NAME]’s attendance on a two-day [NAME] manager CPC refresher course in 2015 whilst he remained disqualified; b) The letter produced by [NAME] which he asserted demonstrated that by a letter dated 12 February 2018, he had notified the Central Licensing Unit of the vehicle fire on 5 February 2018. The notification should have been made on the prescribed form to the DVSA within twenty-four hours. The letter did not carry the address of [NAME] or the operator’s licence number or the address of the intended recipient. The production of this letter (which on any view was wanting), demonstrated that [NAME] was not aware of the important procedure to be followed in the event of a vehicle fire; c) The production of one sheet of paper entitled First Use Inspection Audit for the week of 14 May 2018 which [NAME] asserted was one of many which had not been produced to [NAME] during his investigation. Whilst he maintained that these were kept in a separate file, he did not explain why they had not been shown to [NAME]. Moreover, to produce only one Audit could not provide evidence that a system was in place and continued to function; d) A document entitled Driver Induction to Daily First Use Checks, the driver in question being [NAME] and dated 9 May 2018. The same comments apply as in c) above; e) The green/green/green OCRS at the time the investigation took place (see comments above);

[2020] UKUT 345 (AAC) 31 T/2020/12 f) That only advisory notices were issued during [NAME]’s fleet inspection when he and his colleague were unable to inspect the three vehicles over a pit; g) [NAME] averred that as soon as he was aware that the calibration certificate for the Tapley/Bowmonk meter had expired, he immediately arranged for it to be re-calibrated. This is inconsistent with the entry on a PMI sheet in August 2018 referred to in paragraph 20 above which notes that the “calibration expired on the brake tester” which points to the re- calibration did not take place until after August 2018. When the Tribunal raised this with [NAME] he averred that this note referred to a Bowmonk meter rather than a Tapley meter. In fact, as is evident from the sample print-out at page 682 of the appeal bundle, a Bowmonk is a Tapley meter. Moreover, when this PMI sheet was considered during the course of the re-hearing, [NAME] did not inform the [NAME] that the note referred to another brake test meter and even if it did, the note demonstrated that a second meter was being used when its certificate had expired; h) That in a letter dated 31 October 2018, [NAME] invited a further maintenance investigation in six months, to be conducted by [NAME]. Whilst this is capable of demonstrating a willingness on the part of [NAME] to work with the DVSA, he was only prepared to do so on his own terms and his subsequent conduct demonstrated that he has a hostile and obstructive attitude towards the DVSA officers.

In addition to the one relevant positive feature identified by the [NAME], the following matters could and should have been weighed into the balance:

a) [NAME] and his father did cease to use the split maintenance system once they had been told that it was non-compliant. However, only limited weight can be attached to this action bearing in mind the serious and reckless road safety issues which were inherent in the split maintenance system which should never have been instituted in the first place and the continued stance of [NAME] that it was a system that produced positive results and that there is nothing in the Guide to Maintaining Roadworthiness which suggests that the split system was wrong (see page 662 of the bundle); b) [NAME] had held a one vehicle licence for over three years without any maintenance issues being identified by the DVSA; c) Not only did [NAME] remove a vehicle off the road mid public inquiry when [NAME] stated that the Hazells’ were misreading the Tapley meter readings, he also arranged for it to have a RBT prior to the commencement of the second day of the re-hearing; d) There were no “S” marked PG9’s on the company’s record.

Whilst the [NAME]’s balancing exercise of the positive and negative features was incomplete, a full analysis as contended for by [NAME] does not result in a different outcome particularly when one takes account of [NAME]’s significant regulatory history. A disqualification order of 18 months, is on any view, a significant order. Yet within thirteen months of the disqualification period coming to an end and 11 months after the prohibition against him having any role in the operation of [NAME] had been lifted, he had

[2020] UKUT 345 (AAC) 32 T/2020/12 become the sole director of the company (July 2017) and had then instituted the split PMI regime in early 2018. [NAME] was and remains keen to salami slice the OCRS to show that the company fared better when he was the [NAME] manager for the company, he ignores that he was the sole director during the period considered by [NAME] in his report. There are only three references to records pre-dating [NAME]’s directorship (see paragraphs 14, 21 and 25), including the history of the vehicle which caught fire when he was the sole director. It was [NAME]’s responsibility to ensure that in all material respects, the company’s maintenance and regulatory compliance was beyond criticism. He did not do so. The [NAME] was plainly right to conclude that [NAME] has lost his good repute as a [NAME] manager and should be disqualified under s.28 of the 1985 Act.

72. In all of the circumstances and despite the too narrow approach taken by the [NAME] in respect of the balancing exercise, we are satisfied that his determinations in respect of [NAME] were plainly right as was his approach to whether [NAME] could be trusted in the future to operate compliantly; to cooperate with DVSA officers and to take on board constructive advice and criticism without resorting to unfounded allegations being made against those who are responsible for ensuring that road safety is not compromised and that non-compliant [NAME] do not gain a competitive advantage over other compliant [NAME] who spend the time and the necessary resources in ensuring that compliance is maintained. [NAME] relied upon paragraph 12 of NT/2013/82 [COMPANY], placing himself in the first of the four categories identified by the Tribunal, that ignores his regulatory history and his continuing negative attitude towards the DVSA officers in this case. We are satisfied that the [NAME]’s findings are beyond criticism and they were entirely proportionate (proportionality featuring as a separate ground of appeal in [NAME]’s skeleton but dealt with now in this paragraph). [NAME] should reflect upon his regulatory history to date and his professional relationship with the DVSA and learn from the findings that have been made. When he is able to establish, after substantial reflection, that he has achieved a change of attitude towards compliance and the regulators and can show that he is someone who can be trusted going forwards, then it is open to him to apply to have both disqualifications orders set aside. A long period of reflection is required.

73. Ground 6: the disqualification order under s.28 of the [NAME] Act 1985

We are satisfied that in the circumstances of this case, that an indefinite disqualification under s.28 (the comments made in paragraph 71 being applicable) is entirely proportionate. However, we are also satisfied that the disqualification as set out in the order goes beyond the strict statutory wording set out in s.28(1) which reads:

“Where the traffic commissioner for any traffic area revokes a PSV operator’s licence, he may order the former holder to be disqualified, indefinitely or for such period as he thinks fit, from holding or obtaining a PSV operator’s licence”.

[2020] UKUT 345 (AAC) 33 T/2020/12 It is clear from the wording of s.28(4), that the power to disqualify and the continuing disqualification, covers those who are or become directors or those holding a controlling interest in a company which holds or obtains an operator’s licence or those who operate [NAME] in partnership with a person who holds such a licence.

The wording used by the [NAME] is as follows:

“The disqualification extends to [NAME] being a director, shareholder, consultant, manager or employee of any entity holding an operator’s licence”

Whilst the disqualification automatically includes being a director of a company holding or obtaining an operator’s licence and includes having a controlling interest in a company, such as being a majority shareholder and being in partnership with a licence holder, it does not automatically include the other roles listed by the [NAME]. All will depend upon whether, irrespective of his job description, within or as a consultant to a licence holder, a disqualified person is by themselves or with others, operating [NAME]. Any disqualified person can expect to have their role and influence over a licence holder closely scrutinised if they are either employed, self-employed in whatever capacity or there are some other links which raise the suspicion that the disqualified person is circumventing the order of disqualification by their involvement with a licence holder.

74. The error made by the [NAME] is an understandable one as all TCs have the power to require undertakings from applicants for a new operator’s licence that a [NAME] will not have any involvement in the management, administration or control of that company or indeed that the [NAME] will not be employed in any capacity whatsoever. Such undertakings are usually required and given when it is suspected that an application for a new licence is a means by which a disqualified person can circumvent their disqualification by using the new operator as a “front”. An example of an undertaking given in these circumstances is in this very case when [NAME] applied for a licence in 2015 and the relevant [NAME] required an undertaking that neither [NAME] or his father would have any involvement in the company. However, as already noted, a prohibition such as this or similar cannot be read into the wording of s.28.

75. It is open for an operator to employ [NAME] as a driver or a vehicle cleaner or other similar role which is clearly separated from the administration of the licence. But if [NAME] continues to be involved in the operation of PSVs and there is any suggestion that the role that he purports to play is itself a “front” to enable him to exercise control, whether by himself or with others, over the operation of [NAME], then he will no doubt come under the close scrutiny of the DVSA and the [NAME]. A clear separation must be demonstrated at all times between the role that [NAME] is said to fulfil and any management function of the operation to avoid the conclusion that he is in fact either a shadow director or a de facto director (see T/2014/11&12 [NAME] & [NAME] or is in some other way, a controlling mind of the company.

[2020] UKUT 345 (AAC) 34 T/2020/12

Conclusion

76. It follows from our findings above, that this appeal is allowed to the limited extent that the disqualification made under s.28 of the 1985 Act should be limited to the wording of the statute. Otherwise, we are satisfied that neither the law or the facts of this case impel us to come to a different view to that of the [NAME] as per the Court of Appeal decision in [COMPANY] & [NAME] v Secretary of State for [NAME] (2010) EWCA Civ. 695 .

Her Honour Judge Beech 8 December 2020