Upper Tribunal Upholds Licence Revocation and Disqualification Orders

NCN: [2022] UKUT 00284 (AAC) IN THE UPPER TRIBUNAL Appeal No. UA-2022-000599-T ADMINISTRATIVE APPEALS CHAMBER

[NAME]:

[NAME] [COMPANY]

DECISION OF THE UPPER TRIBUNAL

Her Honour Judge Beech, Judge of the Upper Tribunal Richard Fry, Specialist Member Gary Roantree, Specialist Member

Decision date: 28th October 2022

ON APPEAL FROM:

Tribunal: [NAME] Commissioner for the South East & [NAME] No: [[NAME]] Tribunal Venue: Field House, 15-25 Bream’s [ADDRESS], [POSTCODE] Date: 11th October 2022

This front sheet is for the convenience of the parties and does not form part of the decision

1

IN THE UPPER TRIBUNAL Appeal No. UA-2022-000599-T ADMINISTRATIVE APPEALS CHAMBER

On appeal from the Decision of [NAME] Commissioner for the South East & [NAME] dated 11th March 2022

[NAME] [COMPANY] [NAME]: Her Honour Judge Beech Upper Tribunal Judge

Specialist Member of the Upper Tribunal Richard Fry

Specialist Member of the Upper Tribunal Gary Roantree

Hearing date: 11th October 2022

Representation: [NAME]: [NAME] of Counsel instructed by [NAME] on behalf of both [NAME]

DECISION

The appeals are DISMISSED

Subject Matter: Proportionality of the Orders of revocation and disqualification

1. Cases referred to: 2019/054 [COMPANY]; (2009/041 [NAME] t/a [NAME]); 2010/29 [NAME]; 2009/011 [NAME] and [COMPANY]; [COMPANY] v The Secretary of State for [NAME] (2019) EWCA Civ 1022)2012/071; 2014/4-41 [COMPANY] and [NAME]; [NAME] & [NAME] v Secretary of State for [NAME] (2010) EWCA Civ.695.

REASONS FOR DECISION

2. This is an appeal from the decision of the [NAME] Commissioner for the [NAME] (“[NAME]”) dated 11th March 2022 when she

[NAME] & [COMPANY] Appeal No: UA-2022-000599-T 2 revoked the operator’s licence of the Second Appellant (“[NAME]”) under s.26 of the Goods Vehicles (Licensing of Operators) Act 1995 (the 1995 Act”) and disqualified both [NAME] under s.28 of the 1995 Act for a period of seven years with effect from 23.45 on 4th July 2022. [NAME], the Second Appellant’s [NAME] manager was issued with a strong written warning. That decision is not (and cannot) be the subject of an appeal. Background 3. The background to this appeal can be found in the appeal bundle and the written decisions of [NAME] Commissioner [NAME] (“DTC”) dated 19th October 2020 and [NAME]’s decision dated 11th March 2022 and is as follows. The First Appellant (“[NAME]”) has been involved in commercial road [NAME] for a number of years. He was a director of [NAME] between 14th June 2016 and 15th October 2018. He was the sole director of [NAME] between 2nd April 2017 and 22nd October 2019 when his cousin [NAME] took over the business. On 5th August 2018, [NAME] took over the business of [NAME] from the then sole director of the company [NAME], although there was some overlap in directorships until 15th October 2018. 4. [NAME] had been granted a standard national operator’s licence on 14th August 2015 for six vehicles and six trailers. On 11th June 2018, a DVSA maintenance investigation was carried out and was marked as “unsatisfactory” resulting in a “propose to revoke” letter being sent on 19th September 2018. [NAME] later denied that he had any knowledge of the DVSA investigation although after he had purchased the company and had become the sole director, the company requested a public inquiry in response to the “propose to revoke” letter. Then on 10th October 2018, the [NAME] manager was removed from the licence prompting a further “propose to revoke” letter being sent which was not responded to and as a result, the licence was revoked on 12th November 2018. 5. [NAME] applied for a new licence on 29th November 2018; [NAME] was the nominated [NAME] manager. The application was called to a public inquiry and was considered on 12th March 2019. The decision letter can be summarised as follows: • An interim licence was granted with undertakings. It was understood by [NAME] that [NAME] compliance with the undertakings was an integral aspect of the DTC’s reasons for granting the licence • The application was not aided by the confusion over the history and names of key individuals involved in the company prior to [NAME] purchasing the company. The previous owner ([NAME]) failed to manage the licence satisfactorily with respect to digital [NAME] cards. The [NAME] details of the abuse of [NAME] cards and general misuse had been detailed in the [NAME]’s report • Tachograph analysis was to be undertaken by [NAME] • The applicant intended to look for the best [NAME] manager he could find and reorganise the company on that basis

[NAME] & [COMPANY] Appeal No: UA-2022-000599-T 3 • Despite having a CPC qualification, [NAME] had never taken any refresher training nor had he acted as a [NAME] manager • He did not seem to understand the significance of signed infringement reports without having the [NAME] addressing the failure and without having them signed in a timely fashion rather than all on the same date some months or weeks after the infringement occurred • He was unable to identify the key requirements in relation to brake testing and preventative maintenance inspections (“PMI’s”) i.e. that every PMI was to include a rolling road brake test. The PMI sheets were returned to him (from [NAME]) for review but the DTC was left unconvinced that [NAME] understood what he should be looking for as he failed to recognise that a rolling road brake test was not being done at every PMI and not every 3 months (we note at this stage that the references to [NAME] are unclear as the maintenance provider was [NAME]) • The forms that have been used by [NAME] were the old forms. [NAME] found that out at the hearing. [NAME] had been operating for 2 years (we note that this may be relevant because [NAME] had been the operator of [NAME]) • The DTC was satisfied that [NAME] had nothing to do with [NAME] during its previous interaction with the DVSA in 2018 • He wanted to get things right but the DTC was concerned that he had failed to understand and appreciate his responsibility to achieve the standards to be complied with and to have the required skill and knowledge to not only manage the licence but the [NAME] manager as well • The interim licence was to take effect after and upon receipt of a certificate of attendance by [NAME] on a two day CPC approved training course by the end of May 2019 and after a second experienced CPC nominated [NAME] manager had been added to the licence (by the end of May 2019) • A [NAME] systems audit was to be conducted by an independent provider, to be completed by the end of August 2019. If the audit showed any areas needing improvements or having deficiencies, the interim licence would be immediately revoked without a public inquiry and for the avoidance of doubt, the licence would not be granted. • [NAME] stated that he understood fully and [NAME] (who represented him) confirmed he would reinforce and explain in [NAME] what was required.

6. Upon receipt of a certificate showing that [NAME] had attended an appropriate CPC refresher course and following the nomination of [NAME] as a second [NAME] manager, the interim licence authorising four vehicles was granted on 11th June 2019.

7. On 28th August 2019, [NAME] completed a [NAME] audit. It recorded inter alia that:

[NAME] & [COMPANY] Appeal No: UA-2022-000599-T 4 • Drivers were instructed to prevent overloading but a copy of those instructions were not attached to the report • Whilst four vehicles were said to be in possession (including [[NAME]]), only one vehicle registration document was produced and only one plating certificate was produced • A recommendation was made that VED, tachograph calibration and insurance expiry dates should be entered onto the wall planner (the inference being that this information was missing from the planner) • It was noted that roller brake testing was recorded on inspection sheets although the DTC was surprised that details of frequency were not given in the audit • The audit answered “Yes” to the question concerning adequacy of maintenance resources and facilities including undercover accommodation, adequate under vehicle inspection facilities of either ramps, a pit or a hoist etc. In fact, maintenance inspections were taking place outside at the operating centre by [NAME], a mobile service without under vehicle inspection facilities • In answer to the question concerning regular audits being carried out by a suitability qualified person to ensure that all maintenance procedures were followed etc, the answer recorded was “director themselves keep a trail of documents” without stating what the audit process was The conclusion of the DTC was that the audit report was very brief and lacked detailed answers from [NAME] to evidence recommendations raised and addressed and significantly missed out key areas of concern.

8. On 14th November 2019, a joint [NAME] examiner and vehicle examiner investigation was carried out. When they arrived at Midland Quarry Products (“MQP”), one of the two operating centres recorded on [NAME] licence, vehicle registration [[NAME]], which was specified on the licence, was present with its [NAME]. When asked, the [NAME] stated that he was working for “[NAME]” which prompted a check of the licence disc. The [NAME] then declared that the vehicle previously belonged to [NAME] but that it now belonged to [NAME]. The [NAME] was told the purpose of the visit and his response was that his “boss” was en-route. Enquiries were made via MQP’s control room and a delivery note was produced which showed that the vehicle was being operated by [NAME] and that the [NAME] was in fact [NAME]. The vehicle was displaying a disc for [NAME], although behind it were two further in date discs, one for the revoked [NAME] licence and another for [COMPANY]. It then transpired that [NAME] did not in fact have permission to use MQP as an operating centre.

9. On 21st November 2019, vehicle [[NAME]] was stopped. The [NAME] stated initially that he was working for [NAME] although the vehicle was displaying a disc issued to [NAME]. The [NAME] then stated that he was working for [NAME] and that both [NAME] and [NAME] were the same operation and being run by the same person. The [NAME] told the DVSA that he had been interviewed and inducted by [NAME] who gave him his day to day instructions. It then became apparent that the vehicle had been removed from

[NAME] & [COMPANY] Appeal No: UA-2022-000599-T 5 the [NAME] licence on 10th October 2019 and that on 22nd October 2019, the day that [NAME] ceased to be a director of [NAME], the vehicle was specified on the licence of [NAME]. No one could be contacted at [NAME] although a telephone call to [NAME] elicited the response that the vehicle was being operated by [NAME] although the [NAME] worked for [NAME].

10. There then followed follow-up visits to [NAME] on 25th and 29th November 2019 and the outcome of the investigation was marked as “unsatisfactory”: • PMI sheets lacked details of rectification and were not always signed to confirm that the vehicles were in a roadworthy condition • The brake performance sections were not completed on the sheets • On 29th August 2019, [[NAME]] was presented for a voluntary roller brake test which was recorded as a fail for excessive brake imbalance (60%). There was no evidence of repair until 5th September 2019 although the vehicle had covered 274kms on 2nd September 2019 • The drivers used a carbonated defect reporting book to record their daily walk-round checks. Both copies of the reports were sometimes retained in the books until all had been completed, making it impossible for the operator to monitor [NAME] defects daily • [[NAME]] was presented for MOT on 6th September 2019 and failed on a suspension component exceeding the prescribed limit. The defect had been identified during the previous PMI on 27th August 2019 and not repaired • [NAME] led the officers to believe that the maintenance contractor ([NAME]) had undercover facilities. However, further investigations revealed that Ace was a mobile repair company which operated from vans and that all PMIs were undertaken outside [NAME] operating centre • There had been one delayed roadworthiness prohibition and one weight prohibition since the grant of the interim licence in June 2019 • [NAME] told Vehicle Examiner (“[NAME]”) Smith that he did not assign any [NAME] to his [NAME] manager activities although [NAME] stated that he assigned about 8 hours a week. Neither were able to demonstrate any continuous professional development. The [NAME] recorded “It is clear that [NAME] is heavily involved with [COMPANY] as well as [COMPANY] although it remains unclear exactly what the arrangement is between the two operators, if any” • [NAME] concluded that [NAME] maintenance systems were concerning due to the catalogue of failings in all areas, the prohibition history, MOT failure rate, unsatisfactory maintenance facilities and poorly completed maintenance sheets with absent recorded brake deficiencies • There were deficiencies in tachograph analysis and issues with drivers’ hours.

[NAME] & [COMPANY] Appeal No: UA-2022-000599-T 6 11. [NAME] resigned as the second [NAME] manager with effect from 10th February 2020. [NAME] was then nominated as an external [NAME] manager. He was also the [NAME] manager for [NAME].

12. A second public inquiry was held on 27th August 2020 and concluded on 9th October 2020. [NAME] heard from the vehicle examiners, [NAME] and [NAME], who was CPC qualified and [NAME]’s cousin who assisted in communication because of [NAME]’s difficulties in communicating in English. In her written decision dated 19th October 2020, the DTC found that [NAME] and [NAME] as [NAME] managers were “most detrimental to the proper management of this licence. Neither knew what the [NAME] rigours of compliance entailed. Neither were skilled enough, and neither knew just how incompetent they were. .. they did not have a clear understanding of their roles and responsibilities … Whilst they may have been trying to do their best, I have concluded that it was their incompetent best ..” The DTC was impressed with [NAME]’s actions having received the call up letter. He appointed [NAME] as [NAME] manager and had relied upon his cousin to put systems in place which relied less on linguistic skills. However, [NAME]’s management of [NAME] had been “most ineffective and troubling .. I remain to be satisfied that he can oversee this licence to the requisite degree required”. The DTC was concerned about the maintenance failings and that despite the passing of seven months between the first public inquiry and the DVSA investigation, systems and procedures had not significantly improved despite a second [NAME] manager being appointed, [NAME] having attended a refresher course, a systems audit having taken place which was not acted upon, the audit representing a warning that urgent prompt action was needed by [NAME] to improve systems and management of the licence generally. It was unacceptable that drivers were not completing walk round checks properly and that tachograph errors were occurring. It was even more unacceptable these problems were not identified. There had been unlawful use of an operating centre. The level of default by [NAME] was “very significant”. As a result, action had to be taken against the interim licence. The positives were the changes made, there were no road safety critical defects and no recent prohibitions and [NAME] did not gain any commercial advantage. [NAME] had accepted that he could not drive and manage his licence and that he should not act as [NAME] manager. However, it was for him to supervise and manage the licence and the [NAME] manager. In the circumstances, the DTC was prepared to grant a [NAME] licence to [NAME] with effect from 2nd November 2000 and in doing so, allowed [NAME] one last chance to prove that the company could be operated compliantly. The repute of the company and [NAME] was tarnished. The DTC found breaches of ss.26(1)(b); (1)(c); (1)(ca); (1)(e); (1)(f) and (1)(h) and suspended the licence for seven days with effect from 24th December 2020. The DTC accepted an undertaking to ensure all maintenance providers were added to the licencing system of the Central Licensing Office and she recorded a statement of intent made by [NAME] that he would not undertake any driving responsibilities on this or any other licence whilst managing this licence. [NAME] was reminded that this was his last opportunity to ensure that the licence was managed “to a standard of near perfection”. Anything less would result in a further public inquiry where his repute would be very much in question.

[NAME] & [COMPANY] Appeal No: UA-2022-000599-T 7 13. On 16th November 2020, an application was lodged to increase the company’s vehicle authorisation from six vehicles and six trailers to eleven vehicles and eight trailers. The supporting bank statements did not show financial standing for the increased authorisation applied for and appeared to barely cover the existing authorisation. Updated bank statements were requested and whilst they demonstrated financial standing for the proposed increase, there were large financial transactions, including with [NAME] which may have indicated more than arms-length trading. Moreover, some of the evidence heard in public inquiries before [NAME] concerning the licence of a company called [COMPANY] and the licence application of [COMPANY] pointed to them having been “fronts” for [NAME] to operate more vehicles while [NAME] application for a [NAME] licence was ongoing. [NAME] and [NAME] were called to a public inquiry.

14. The public inquiry commenced on 12th July 2021. [NAME] was represented by [NAME], solicitor, and a [NAME] interpreter attended to assist [NAME]. [NAME] described the hearing in this way: “[NAME] gave evidence on his own behalf and through [NAME] for nearly 2 hours on the financial records, invoicing, operating links with [NAME] agencies and [COMPANY]. At the end of the session the evidence was at best confusing, with an overriding impression of reticence to answer direct questions ..”. The hearing was adjourned with Case Management Directions to be complied with prior to the reconvened hearing listed for 23rd August 2021. The directions included the requirement for witness statements to deal with the specific areas of concern arising out of [NAME]’s evidence along with documentary evidence and missing financial standing bank statements.

15. Some documentary evidence was produced prior to the hearing but [NAME] had been unable to finalise [NAME]’s witness statement. On 20th August 2021, [NAME] informed the Office of the [NAME] Commissioner (“OTC”) that [NAME] had told him that he was suffering from COVID symptoms. [NAME] had advised [NAME] to book a PCR test. [NAME] did not provide a test result and as a result, a short adjournment was granted to 6th September 2021. On 6th September 2021, [NAME] and [NAME] attended the hearing. [NAME] did not attend but told [NAME] that he was not well enough even to attend the hearing remotely. A COVID test result was eventually provided dated 7th September 2021. [NAME] suspended [NAME] licence with effect from 23.45 on 7th September 2021 until the reconvened hearing or such earlier date as [NAME] agreed in writing once the required documentation set out in [NAME]’s directions of 12th July 2021 had been lodged. She made it clear that the vehicles specified on the licence must not be used or specified on any other licence. Upon receipt of the documentation, the suspension was lifted on 23rd September 2021 and a direction was made that no later than seven days prior to the reconvened hearing, [NAME] was to lodge evidence that the vehicles had not been moved during the period of suspension.

16. On 27th September 2021, [NAME] notified the OTC that without his knowledge or consent (he had been on holiday), the vehicles had been operated during the period of suspension (a total of sixteen days). He had discovered this having printed out a [NAME] summary report on 23rd September 2021. He spoke to [NAME] and told him that there had been a breach of trust which required explanation. As a result of [NAME]’s communication, a further

[NAME] & [COMPANY] Appeal No: UA-2022-000599-T 8 direction was made that all digital data for the suspension period was to be sent to the DVSA by email “by return”. That direction was not complied with by [NAME] and [NAME] was unable to do so as in the meantime, [NAME] had cancelled [NAME]’s access to the [NAME] system. [NAME] did however, forward the summary report that he had printed off on 23rd September 2021.

17. The hearing was concluded on 5th November 2021. It was accepted that financial standing could not be demonstrated even for the existing authorisation (although if this had been the sole issue, [NAME] would have granted a short period of grace). It was further accepted that [NAME] had operated his vehicles during the suspension period and both [NAME] and [NAME] acknowledged that there remained deficiencies in the systems to ensure compliance with the rules regarding maintenance and drivers’ hours, tachographs and the [NAME]. Many issues remained to be determined.

18. In her written decision dated 11th March 2022, [NAME] recorded that she did not find [NAME] to be a credible or compelling witness and described his demeanour as guarded. He became unsettled when [NAME] asked for corroboration and/or details to support his evidence. She preferred the evidence of [NAME], who she considered to be an open and straightforward witness. Where there was a conflict between [NAME]’s evidence and the documentation, [NAME] gave more weight to the documents.

19. The undisputed findings of fact made by [NAME] are as follows: a) As a result of the public inquiry before [NAME] in 2020, [NAME] knew that all future arrangements with [NAME] and his cousin [NAME] had to be transparent, arms-length and beyond question. The evidence he relied upon before [NAME] to demonstrate a straightforward sub-contracting arrangement with [NAME] was anything other than straightforward. Bank statement entries did not tally with [NAME] invoices addressed to [NAME] which were themselves unsatisfactory. Moreover, there were large payments in and out of the [NAME] bank account to and from [NAME] which were not adequately explained. In all likelihood, they were payments made by [NAME] to [NAME] to bolster the company’s financial standing in support of the variation application. b) [NAME]’s evidence, written and oral upon the relationship between [NAME] and [NAME] lacked detail and clarity to a significant degree. c) [NAME] told [NAME] that neither [NAME] nor [NAME] knew whether it was a [NAME] or [NAME] vehicle/[NAME] doing each job for [NAME] clients on any given day as control of the vehicles and drivers came from [NAME]’ clients. In paragraphs 31 and 32 of her decision, [NAME] catalogued the deficiencies with the paperwork provided by [NAME] and the deficiencies and contradictions in his oral and written evidence on this issue. The overall impression remained that [NAME] and [NAME] were operated as connected companies in a fluid manner rather than separate legal entities, as required to meet licensing obligations. This demonstrated that the assurances [NAME] gave to the DTC in October 2020 were “founded on sand”. [NAME] told [NAME] that all sub-contracting

[NAME] & [COMPANY] Appeal No: UA-2022-000599-T 9 with [NAME] had ceased at the end of 2020, she was unable to take him at his word in view of her overall assessment of [NAME]’s evidence across two hearings. d) [NAME] considered the evidence of the use of vehicle [[NAME]] and whether it was sufficient to determine that [NAME] used more vehicles than authorised and whether he had used the [NAME] licence and/or that of [COMPANY] as a “front” and/or whether [NAME] application was an attempted “front” (she did not consider the evidence that the vehicle was specified on the licence of [NAME] when stopped, a company with connections to [NAME]). She found that the formal records did not tie in with the oral evidence she had heard leaving an opaque picture. She had refused the licence application of [NAME] because she had found [NAME] (director and proposed [NAME] manager of [NAME] and [NAME] manager for [COMPANY]) to be “completely untrustworthy”. [NAME] accepted that there was no direct evidence that [NAME] had been lent the vehicle and as a result, she stepped back from making an adverse finding on the point. However, it remained an example of how [NAME]’s evidence and arrangements remained less than straightforward and transparent. This led to his links with [COMPANY]. e) [NAME] was incorporated in May 2019 with [NAME] (cousin of [NAME] and sole director of [NAME]) appointed as director and [NAME] being the sole shareholder. It was [NAME]’s case that whilst this company was incorporated to provide a parcel delivery service, it had not traded. It was unclear why in the circumstances, [NAME] then became a director in 2020. [NAME] maintained that in early 2021 Lloyds Bank unilaterally closed the [NAME] bank account and then reopened it. There was no evidence produced to support this assertion. [NAME] maintained that as a result of this difficulty, the fuel cards that had been obtained for [NAME] were used by [NAME] and [NAME] drivers were also paid by [NAME]. There were invoices which related to fuel and [NAME] services but no detail was recorded on them. [NAME] bank statements showed [NAME] paid for some [NAME] liabilities direct to the suppliers. Other entries record matters such as [NAME] paying £10,205 to [NAME] for “[NAME] service”, the payment being returned the same day marked “borrow returned”. On the same day [NAME] paid the [NAME] agency £5,676 direct. [NAME] considered that this was evidence of [NAME] entering into another joint enterprise with his cousin. f) [NAME] drivers were treated as self-employed agency drivers although there was no audit trail to determine whether drivers were truly self-employed as [NAME] maintained and free to work elsewhere or whether they should have been treated as employees. This was despite a direction that such evidence was to be produced. The case of 2019/054 [COMPANY] was referred to. There was no evidence of monitoring the position or a system of checking whether a [NAME] had sufficient hours to drive. [NAME] maintained that he used “trusted” drivers’ agencies. There was no good reason for this trust. One agency used, [COMPANY], was operated by [NAME] who sold [NAME] without informing

[NAME] & [COMPANY] Appeal No: UA-2022-000599-T 10 him of the DVSA investigation in 2018 (and who had allowed significant drivers’ hours and records failures and we note, was also the [NAME] manager for [NAME]). There had been a breach of the undertakings relating to the law relating to driving and operation of vehicles and the rules on drivers’ hours and tachographs. g) [NAME] made adverse findings as a result of [NAME]’s failure to cooperate and engage positively with [NAME] and gave six examples of his failures in this regard. h) [NAME] considered the maintenance records produced at the public inquiry. She set out examples of deficiencies in the records and concluded that the records indicated significant basic failings in the maintenance systems including the failure to undertake proper brake testing, the absence of an effective [NAME] defect reporting system, the absence of torqueing and retorquing procedures following wheel changes. A formal adverse finding was made in relation to keeping vehicles and trailers fit and serviceable with [NAME] noting that it was fortunate that no accident had occurred. i) As for the operation of vehicles during the period of suspension, [NAME]’s explanation that his business would have collapsed overnight if he had abided by the suspension, raised more questions than it answered. He produced a standard contract for [NAME] which did not confirm that [NAME] had a contract with [NAME]. As for his failure to provide the DVSA with the raw data for the suspension period, his explanation that he thought that the summary report forwarded by [NAME] was all that was required was rejected. [NAME] further rejected [NAME]’s assertion that he had not locked [NAME] out of the [NAME] system, accepting as she did, the evidence of [NAME] that he had been told by [NAME] staff that [NAME] had cancelled his log-in details and because [NAME]’s cousin gave the impression to [NAME] that he was fully aware that [NAME] had been locked out of the system. Any remorse for illegal operation was tainted by [NAME]’s failure to cooperate thereafter. j) The failure to provide the raw data to the DVSA for the suspension period meant that [NAME] was denied the opportunity of obtaining an independent assessment of the [NAME] extent of the unlawful operation. 20. [NAME] concluded that [NAME]’s default position was that anything that made him look non-compliant or untrustworthy was down to communication challenges and innocent mistakes. This was despite the assistance of an experienced [NAME] interpreter and during one hearing, assistance from his cousin. His evidence had been shown to change depending on the topic, particularly when the veracity of his evidence was tested. There were few positives. The fundamentals of drivers’ hours management were in place although blotted by the lack of control of agency drivers; prohibitions issued in April 2021 were followed up with a disciplinary meeting and a letter to drivers; laden roller brake tests and gate checks were being undertaken although [NAME] was unable to assess their effectiveness because of lack of documentation. Likewise, the retorque register was not produced. [NAME] had demonstrated over a sustained period that he acts at will, not through any lack of communication skill, but out of his own self-interest. He had continued

[NAME] & [COMPANY] Appeal No: UA-2022-000599-T 11 to put commercial efficacy first, regardless of any direction from a [NAME], a DTC, the OTC, the DVSA or the [NAME] Manager. [NAME] gave significant weight to: • The ongoing breach of the undertaking relating to roadworthiness • failing to co-operate across numerous areas • the ongoing lack of transparency or evidence of arms-length arrangements with [NAME] or [NAME] or [NAME] • the ongoing use of agency drivers without robust management systems around fatigue and control 21. The aggravating features were: • The delay in complying with the directions made on 12th July 2021 which were designed to bring order and clarity after the equivocating evidence earlier in the day • Operating through the period of suspension – six vehicles and 17,646kms whilst fully understanding the terms of the suspension and the potential consequences for the operator’s licence • Failing to seek to vary the suspension order even if could not be lifted and complying with the order in the meantime • Taking steps to prevent data disclosure to DVSA 22. [NAME]’s failure to heed the very stark warning from [NAME] in October 2020 and to continue to conduct his businesses giving priority to commercial need over safety along with an absence of compliance and transparency made this a “terrible case”. The chronology was such that the starting point was “Severe” in terms of the [NAME]’s Statutory Document 10 Annex 4. The few positives did not downgrade that category or dent [NAME]’s overriding disquiet about the “mendacious [NAME]”. [NAME] himself suggested a starting point of “Serious to Severe” and acknowledged that trust remained challenged. [NAME] did not trust [NAME] to show due regard for the law or those who uphold it. The suggestion of stepping back from revocation, invoking instead an extended period of suspension followed by a significant and indefinite curtailment with a [NAME]-[NAME] manager in post was not persuasive. [NAME], “through his acts, omissions, equivocating and inconsistent evidence and illegal operation demonstrated to me that he is untrustworthy to the core. The evidence is overwhelming that the only thing [NAME] can be trusted to do is to do as he pleases when it pleases him. This was [NAME] and [NAME]’s third public inquiry. They were given the benefit of the doubt in 2019 and – just – in 2020 but no more. It would undermine the integrity of the operator licensing system if this licence continued after the 2021 hearings. The operator deserves to be put out of business to protect the hardworking legitimate industry. Loss of good repute and revocation are appropriate and proportionate where, as here, there is an “absence of any objective justification and excuse, there having been long term, sustained, repetitive deficiencies (2009/041 [NAME] t/a [NAME]).

[NAME] & [COMPANY] Appeal No: UA-2022-000599-T 12 23. As for disqualification, [NAME] considered the case law (2010/29 [NAME]; 2009/011 [NAME] and [COMPANY]; [COMPANY] v The Secretary of State for [NAME] (2019) EWCA Civ 1022). The case law indicated that an order of disqualification was justified and required in cases where the operator could not be trusted to comply with the regulatory regime and when it was an appropriate order to uphold the objectives of the system and to ensure the protection of the public and fairness to other operators. Even if [NAME] had not operated the [NAME] vehicles during the suspension period, the facts of the case (the previous revocation and the number of public inquiries) merited disqualification for a period of between two and three years. A message was necessary to protect road safety and fair competition and to make clear that operators could not make promises at a public inquiry and then revert to “previous errant ways”. The aggravating features had been set out. If operators become tempted to do the same as [NAME] in the hope of not being found out, the regime would collapse with catastrophic consequences. The case required a significant period of disqualification. In 2014/4-41 [COMPANY] and [NAME] the Upper Tribunal drew attention to the suggested range of 5 to 10 years for conduct meriting the description “severe”. The aggravating features placed the case firmly in this category and 7 years was justified. [NAME] further determined that [NAME] may seek to persuade family members or long-term contacts to help him evade the impact of this decision and accordingly, she determined to make an Order under s28(4) of the 1995 Act. The Appeal 24. By a Notice of Appeal dated 8th April 2022, both [NAME] appealed. Whilst there were three grounds of appeal set out in the Notice, only one ground was advanced at the hearing of the appeal: “The decisions of the [NAME] Commissioner are, in all of the circumstances of the case, disproportionate”. In advance of the hearing, [NAME] filed a helpful skeleton argument for which we were grateful.

25. At the hearing of this appeal, [NAME] attended without an interpreter. [NAME]’ first point was that [NAME]’s decisions that both [NAME] had lost their good repute and that [NAME] operator’s licence should be revoked were disproportionate in all of the circumstances. [NAME] accepted that [NAME] had not found [NAME] to be credible or compelling as a witness and that adverse findings had been made with regard to breaches of undertakings to keep vehicles and trailers in a fit and serviceable condition, to ensure that there was an effective [NAME] defect reporting system and that the laws relating to driving, drivers’ hours and tachographs were observed and proper records kept and made available. [NAME] further accepted that [NAME] had found that [NAME] had committed a gross breach of trust by his ongoing course of conduct between 7th September 4th November 2021. Be that as it may, [NAME] had stepped back from a finding that [NAME]/[NAME] had been involved in “fronting”. Such a finding would have made revocation and loss of good repute inevitable. In the absence of such a finding, [NAME]’s remaining adverse findings did not. An extended period of suspension could and should have been imposed in the alternative (which [NAME] considered had

[NAME] & [COMPANY] Appeal No: UA-2022-000599-T 13 already been served in the absence of a stay) along with a significant indefinite curtailment with a [NAME] in place. 26. [NAME]’ second point was that if the Tribunal were to find that [NAME]’s findings of loss of repute and the order of revocation were proportionate, the period of disqualification for both [NAME] was disproportionate. [NAME] referred to paragraphs 93 and 105 of the [NAME]’s Statutory Document No.10 “The Principles of Decision Making & The Concept of Proportionality”. He accepted that it was not unreasonable to place this case into the “Severe” category as set out in Annex 4 of Statutory Document No.10 but submitted that in moving up from the starting point of 5 years disqualification, [NAME] failed to give any weight to the positive features of the case (which were admitted to be scant). When pressed on where the Tribunal might find the positive features (over and above those identified by [NAME] and set out in paragraph 20 above), [NAME] accepted that apart from the absence of a finding of “fronting”, there were none. Nevertheless, [NAME] urged the Tribunal to conclude that [NAME]’s decision to move away from the starting point of 5 years was disproportionate and plainly wrong. Discussion 27. The Tribunal has detailed much of the history of this case so that any reader of this decision could be no doubt that this was a very serious case which justified [NAME]’s conclusion that [NAME] and [NAME] had lost their good repute and that they could not be trusted to operate compliantly in the future. A finding that [NAME] deserved to be put out of business was plainly right. Moreover, in view of the many compliance failings and [NAME]’s conduct as found by [NAME] during the currency of the interim licence, it is surprising to say the least, that a [NAME] licence was granted at all in October 2020. It was clear and obvious that at that stage, [NAME] and it follows, [NAME], could not be trusted. [NAME] had been given his first chance to demonstrate compliance and trustworthiness in March 2019 and had then been given a second chance when a [NAME] licence was granted in October 2020 with regulatory actions taken. He chose not to take advantage of the opportunities he was given to operate compliantly.

28. As accepted by [NAME] (and [NAME] before [NAME]) there were few positive features which could have been weighed into the balance when considering good repute and revocation. All of [NAME]’s findings with regard to [NAME] as an operator and an individual were well supported by the evidence. This was an overwhelming case justifying loss of repute, revocation and disqualification. We do not accept that [NAME]’s decision to step back from a finding of “fronting” amounted to a positive feature. Her decision simply meant that there was one less seriously aggravating feature to take into account. Those aggravating features that were considered, clearly justified a finding that a disqualification period of seven years was a proportionate order to make in the circumstances. Conclusion 29. There is no merit in these appeals and in all the circumstances we are not satisfied that [NAME]’s decision was either plainly wrong or disproportionate and neither the facts nor the law applicable in this case should impel the

[NAME] & [COMPANY] Appeal No: UA-2022-000599-T 14 Tribunal to allow this appeal as per the test in [NAME] & [NAME] v Secretary of State for [NAME] (2010) EWCA Civ.695. These appeals are dismissed.

Her Honour Judge Beech

Judge of the Upper Tribunal

28th October 2022