Upper Tribunal Upholds Licence Revocation Due to Regulatory Non-Compliance

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UKUT 0024 (AAC) Appeal No. T/2017/63 IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER TRAFFIC COMMISSIONER APPEALS

IN AN APPEAL FROM THE DECISION OF Simon Evans, Traffic Commissioner for the NORTH WEST OF ENGLAND TRAFFIC AREA dated 30 August 2017

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] For the Appellant: [redacted]

Heard at: Field House, 15-25 Bream’s [ADDRESS], [POSTCODE] Date of hearing: 9 January 2018 Date of decision: 22 January 2018

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that the appeal be DISMISSED

SUBJECT MATTER:- Revocation of [NAME]’s licence as a result of loss of good repute, financial standing, the forgery of documents submitted to the OTC, general regulatory non-compliance, members of the operating staff holding themselves out as directors when they were not.

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CASES REFERRED TO:- [COMPANY] & [NAME] v Secretary of State for Transport (2010) EWCA Civ. 695.

REASONS FOR DECISION

1. This is an appeal from the decision of the Traffic Commissioner for the North West of England Traffic Area (“[NAME]”) made on 30 August 2017 when he:

a) Found that the good repute of the company (“[NAME]”) had been lost and that the company was no longer professionally competent;

b) [NAME]’ [NAME]’s licence with effect from 23.59 on 22 September 2017 in accordance with s.17(1)(a) of the Public Passenger Vehicles Act 1981 (“the 1981 Act”);

c) Further revoked the [NAME]’s licence under section 17(3)(a), (aa), (b), (c) and (e) of the 1981 Act;

d) Found that the good repute of [NAME], the proposed nominated transport manager had been lost and disqualified him from acting as a transport manager indefinitely.

Background

2. The background to the appeal can be found within the papers and [NAME]’s written decision and is as follows: The [NAME] have been associated with a number of PSV licences in the Warrington area:

 [COMPANY] which had its [NAME]’s licence terminated on dissolution of the company on 8 November 2016;  [NAME] trading as [NAME]’s of Warrington which had its [NAME]’s licence revoked on 18 November 2007;  [NAME] trading as [NAME] whose licence was revoked on 1 March 2007;  [COMPANY] which was sold in May 2015.

3. [NAME] began operating coaches in the late 1960’s. The licence with which this appeal is concerned was granted in August 2010. [NAME] and [NAME] were the directors of the company and [NAME] was the transport manager. The nominated operating centre was [ADDRESS], Woolston, Warrington and 10 vehicle discs were issued to the [NAME]. The licence had been granted at public inquiry with six undertakings, four of which continued, including an undertaking that all authorised vehicles would have a rolling road brake test every 3 months with the results recorded and kept for at least 2 years and an undertaking that the company would undertake a random audit of at least one driver per week to ensure that they

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were undertaking their daily walk round checks correctly. The findings were to be recorded and made available to staff from [NAME] (as the DVSA then was) or the Office of the Traffic Commissioner (“OTC”) on request.

4. According to [NAME] (“[NAME]”), [NAME] retired as a result of ill health in 2013 and as [NAME] (“[NAME]”), the father of [NAME], had worked for [NAME] since the mid-1970’s, [NAME] desired that [NAME] and [NAME] take [NAME] over. [NAME] remained as a director until 7 October 2014. [NAME] was appointed as a director in May 2013, resigning in June 2014, being re-appointed in October 2014 and resigning again on 12 February 2016. He was then re-appointed during the course of these proceedings on 31 July 2017. [NAME] has never been a director of the company and his other son, [NAME] (“[NAME]”) was a director for a limited period between 12 February and 4 April 2016. [NAME]’s partner, was also appointed as a director on 12 February 2016 and once [NAME] resigned on 4 April 2016, she remained the sole director of the company during the period with which this appeal is concerned.

5. With that chronology in mind, it is of note that the licence checklist dated 30 July 2015 purports to amend the OTC’s record of directors held by showing a change of directors from [NAME] to [NAME]. As already noted, [NAME] has never been a director and [NAME] held a directorship for a two month period between February and April 2016. The same checklist incorrectly listed [NAME] as the nominated transport manager when no application had even been made to nominate him at that stage. Further, on 19 January 2016, [NAME] incorrectly signed a variation application to change the nominated operating centre to [ADDRESS], purporting to do so in his capacity as director.

6. On 21 July 2015, [NAME] informed the OTC of her resignation as a director and transport manager. On 29th August 2015, she filed a petition for bankruptcy against [NAME] and an order was granted on 16 February 2016, four days after [NAME]’s resignation as a director. The details of the proceedings in The Gazette, describe [NAME] at that stage as being “unemployed”.

7. During the course of the public inquiry, [NAME] contended that the company vacated its nominated operating centre in January 2016, moving to [ADDRESS] on a temporary basis before moving to [NAME], [ADDRESS], Woolston in April 2016. However, the OTC had requested confirmation that the [ADDRESS] operating centre was still in use long before January 2016. The request also included a request for up to date details of the company directors. The OTC has no record that the company responded to letters dated 27 October 2015, 10 December 2015 and 5 January 2016. Further letters dated 14 September, 22 September and 1 November 2016 referring to the belief that the company was in fact using [ADDRESS] as an operating centre when no change had been notified were sent to the company. The OTC did not receive any response.

8. On 13 August 2015, the company nominated [NAME] as transport manager to replace [NAME]. The application which was signed by [NAME], inaccurately

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describing himself as a company director, contained discrepancies and despite requests to see evidence of [NAME]’s CPC documentation (letters in October 2015 and also dated 31 March and 28 June 2016), none was forthcoming and as a result, his name was not added to the licence. An application was then made on 22 July 2016 to nominate [NAME] as transport manager despite the fact that he only holds a standard national CPC qualification and therefore was unable to be nominated as transport manager on a standard international licence but then on 17 November 2016, shortly before [NAME] was sentenced to six months imprisonment (see below), an application was made to nominate [NAME] as transport manager. The application was in fact dated 20 April 2016 and signed by [NAME] in his purported capacity as company director (which he was not on that date). The [NAME] form was dated 4 April 2016 and signed purportedly by [NAME] (his signature was forged) and presumably by [NAME] in his capacity as director on that date (the signature reads “D [NAME]”). Then on 13 December 2016 a further [NAME] form was submitted nominating [NAME] which bore his forged signature and also bore the purported signature of [NAME] as company director. Then, on 20 January 2017, by way of an undated letter purportedly written by [NAME], the OTC was informed that as [NAME] had lost his original CPC documentation and was in the process of obtaining replacements, [NAME] was to be nominated as an additional transport manager. The letter enclosed a [NAME] form in respect of that nomination, although it is of note that on that date, [NAME] was serving a term of imprisonment and so could not have fulfilled the functions of transport manager. The application nominating [NAME] did not succeed as [NAME]’s original CPC documentation was not supplied and (as is already noted) [NAME]’s signatures on the [NAME] forms were forged.

9. The first maintenance investigation in respect of [NAME] began in July 2015 as a result of intelligence about the condition of one of [NAME]’ vehicles. The investigation could not be concluded because the police were engaged in an investigation and had removed all of the company’s records. [NAME] commenced a fresh investigation on 6 July 2016 because of on-going concerns about the company’s parking arrangements. The investigation was marked as unsatisfactory. He had initially attended [ADDRESS] as that remained the nominated operating centre but was told that [NAME] had vacated the premises in the latter part of 2015 (which is consistent with the suspicions of the OTC hence the letters sent to [NAME] to clarify the position beginning October 2015). [NAME] then attended [NAME] (“[NAME]”) which was not specified on the licence. He examined three vehicles and issued one immediate and one delayed prohibition. There was no evidence of vehicle records being kept prior to 2016 although some of the vehicles had been used in 2015. He spoke to [NAME] about the undertakings attached to the [NAME]’s licence. [NAME] denied any knowledge of them ([NAME] maintained in the public inquiry that the Vehicle Examiner had lied about this conversation). Prior to his investigation concluding, [NAME] received a report from the police that on 4 July 2016, one of [NAME]’ vehicles had been involved in an accident whilst subject to a prohibition. It later transpired that the coach, which was carrying passengers, was not insured. Once the vehicle had been inspected, it was clear that the nearside front

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radius arm had fractured during the accident and that it had been the subject of an unsatisfactory repair which had affected the integrity of the component which was not designed to be repaired. [NAME] repaired its vehicles in- house but it had not been possible to interview anyone from the company about it. In relation to the management of the company, [NAME] was told by both [NAME] and [NAME] that [NAME] was the CPC holder and [NAME] described himself as the General Manager.

10. [NAME] attended [NAME] unannounced on 18 July 2016 and inspected all of the available vehicles. One immediate and two delayed prohibitions were issued. He made a number of attempts to speak and meet with [NAME] to discuss his findings ([NAME] had been told that [NAME] worked five days a week at [NAME]) in order to either inspect the vehicle records at [NAME] or to have them delivered by [NAME] to him but without success with "“family issues” being raised by [NAME] as an excuse. As a result, his investigation has never been concluded. However, on 12 August 2016, an “S” marked prohibition was issued at the roadside to a vehicle with an excessive fuel leakage. That same vehicle (MHZ 1556) had received an immediate prohibition on 18 July 2016 for an excessive fuel leakage although that had subsequently been cleared at re-presentation. At that stage, [NAME]’ prohibition rate over the previous two years was 50% for both roadside and fleet checks.

11. At some stage in 2016 (there is no memorandum of conviction within the bundle), [NAME] was disqualified from driving for twelve months under the totting up provisions for two offences of using a mobile phone whilst driving and one offence of speeding. He told [NAME] that he did not go to court on the date of his sentence. Then about two months later (the details are again absent from the papers within the bundle), [NAME] was convicted of driving whilst disqualified and no insurance. He told [NAME] that this offence arose as a result of one of the coaches breaking down within 200 yards of the operating centre as a result of the electric stop having become stuck. The driver walked back to the operating centre and [NAME] managed to start the vehicle and decided to drive it back to the yard. He was sentenced to 4 months imprisonment suspended for 2 years. Then on 22 November 2016, [NAME] was again found to be driving whilst disqualified and without insurance. He maintained that this was the result of concerns about his father having sufficient medication. On 14 December 2016, for those two offences, he was sentenced to six months imprisonment. According to an article in the Warrington Guardian, the four month suspended sentence was activated in full and a further two months ordered to run consecutively for the November offences. Neither conviction was notified to the OTC.

12. The call up letter was issued on 26 January 2017 with all the above matters being in issue including financial standing. The hearing date was 2 March 2017 although five applications for the hearing to be adjourned to allow [NAME] to attend as the sole director of the company were granted. It was also made clear by [NAME] that not only should [NAME] attend but [NAME] should do so also in view of the allegations made by [NAME] about the identity of the person who forged his signature on the [NAME] forms.

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Ultimately, neither [NAME] nor [NAME] attended either of the two hearings that took place on 5 June and11 August 2017. [NAME] relied upon a doctor’s note citing unfitness to work by reason of a knee injury and anxiety and further, that she was the sole carer for her invalid mother. [NAME] apparently took the view that his attendance was unnecessary.

13. On 14 July 2017, one of [NAME]’ vehicles received an immediate prohibition for the passenger door failing to operate/unable to close properly. A new valve was fitted and the vehicle was allowed to return to base but required an MOT to remove the prohibition. When presented, a defective service brake was identified resulting in a further prohibition.

The Public Inquiry

14. On 5 June 2017, there was the final application for an adjournment to allow [NAME] to attend. That was granted but as [NAME] had attended to give evidence, [NAME] rightly decided to hear [NAME] to avoid any further inconvenience to him by a further attendance. [NAME], who attended the hearing alone, would not remain in the inquiry whilst [NAME] gave evidence despite the fact that he was by that stage the sole director of [NAME] and that the company’s case as to who had forged [NAME]’s signature was materially different to the contents of [NAME]’s witness statement. In deliberately absenting himself from that part of the hearing, the company was deprived of the only opportunity it had to test what [NAME] had stated in his witness statement.

15. The combined evidence of [NAME] (oral evidence and his witness statement which he confirmed was true) was that in April or May of 2016, he was approached by [NAME], someone he had known for 20 years, with a view to [NAME] becoming [NAME]’ transport manager. [NAME] asked him to forward copies of his CPC documentation by email which he did. An agreement could not be reached about the number of hours required of him ([NAME] being reluctant to tell him) or his hourly rate and as a result no agreement was reached. He subsequently contacted the OTC to check whether his certificates had been used by [NAME] to nominate him as transport manager but was assured that any nomination required the submission of original documentation. A driver had told [NAME] about the [NAME] forms and he was aware that two such forms had been submitted with his forged signature (one dated 4 April 2016 with a declaration of truth signed by [NAME] in his capacity as director and one dated 13 December 2016 with a declaration of truth signed by [NAME] in her capacity as director). He had since been told by [NAME] that he forged the signatures. [NAME] thought that [NAME] was trying to safeguard the business at a time when [NAME] was suffering from ill health. [NAME] had since confirmed to [NAME] that it was [NAME] who forged [NAME]’s signature and that neither [NAME] nor Wendy realised the significance of the paperwork. [NAME] thought [NAME] was going to be the transport manager anyway and so signed the documents, as did Wendy. There was no bad blood between them.

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16. The public inquiry reconvened on 11 August 2017. At that stage, there were a number of unresolved variation applications before [NAME]:

a) To add [ADDRESS] as an operating centre (made on 21 January 2016); b) To remove the operating centre at [ADDRESS] (made on 21 January 2016); c) To add [NAME] as an operating centre (made on 16 December 2016); d) To nominate [NAME] as transport manager (first made on 22 July 2016); e) To reduce the licence from 10 vehicles to 4 vehicles (made on 22 July 2016); f) To reduce the licence from 10 vehicles to 5 vehicles (made on 8 August 2017 in substitution for (e) above).

17. [NAME] again appeared alone. [NAME] expressed his disappointment that [NAME] and [NAME] had failed to attend. He was of the view that whilst [NAME] did have some difficult personal circumstances, they did not excuse her attendance to answer the serious allegations made about events which occurred during the period when she was sole director of [NAME]. [NAME] had however, been given authority to speak on her behalf and he submitted a bundle of documents including a written statement from [NAME] admitting to the forgery of [NAME]’s signature.

18. [NAME] maintained that [NAME] had not moved to [NAME] until April 2016 with [ADDRESS] being used as a temporary measure in January 2016. All changes had been notified within 28 days although he did not produce any correspondence to confirm his assertion. As for the vehicle reduction application, none of the five vehicles proposed were in fact specified on the licence. He described the reduction as reflecting the present state of the business and the difficulty in obtaining drivers and to enable the operation to be more manageable. The intention was to operate 4 vehicles with a fifth as a spare and to continue with school contract work and private hire along with some trips and excursions. He was the business manager of the operation and was involved in the workshop. [NAME] would play no active part in the business but would “potter about” and [NAME] was employed as a driver but was obtaining a job elsewhere. He attributed the incidence of prohibitions to the purchase of vehicles from a dealer in Hull, all with MOTs but which were “not good examples of their type”. He had since replaced them with newer vehicles which he thought had improved matters. He considered that the position had been contributed to by a fitter who after twenty years, had lost interest. He was [NAME]’s godparent. [NAME] had employed [NAME], a former FTA employee who had been in post for two and a half months and he carried out all the PMIs. Overall, [NAME] did not believe the state of the vehicles were as bad as had been portrayed. He accepted that he had not been complying with the undertaking to have quarterly rolling road brake tests but stated that brake tests using a Tapley meter were being carried out instead. He did not produce any evidence of that. He accepted that random audits of driver defect reporting were not being undertaken

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weekly, but they were being done. He knew things were “pretty bad” but that steps had been taken to put things right.

19. As for the forgery of [NAME]’s signature, he said that his father had carried out this act (presumably twice) as a result of suffering from the early stages of dementia and he would have thought he was helping (he did not address the issue of how the letter received by the OTC on 20 January 2017 came about which untruthfully asserted that [NAME] had lost his original CPC documentation and that as a result [NAME] was being nominated as a transport manager in addition to [NAME]). He said that there had been a breakdown in communication and the number of family issues meant that administration had become lax.

20. As for his convictions, he described himself as not being in “his right mind” when he committed the second offence of driving whilst disqualified. He was concerned about his father’s medication and so chose to drive. He believed that the family had tackled the serious problems with professional help and as a result, the commission of offences by him would not happen again.

21. As for the coach accident on 4 July 2016, he described the failure to insure the coach as a “clerical error” as a result of the vehicle having previously been in the workshop for repair. The practice at the time was to remove vehicles which were under repair from the insurance policy. Everyone thought that someone else had put the vehicle back on the policy once it had been repaired. It had been without insurance for three days. The practice had now changed and the insurance company was proactive in checking the company’s insurance needs every few weeks. He accepted the evidence of the inappropriate repair to the radius arm which he maintained had taken place prior to the vehicle being purchased by [NAME]. He did not provide any evidence about the date when the vehicle had been acquired by the company and did not know why the repair had not been detected at the point of purchase or subsequently at PMIs. The vehicle had however, passed a number of MOTs with the repair in place. He had not brought the vehicle records with him to the hearing as he was required to do.

22. [NAME] gave evidence in closed session about his personal circumstances. He considered that he had suffered “some sort of mental breakdown” as a result of a personal tragedy. He had now come out the other end but [NAME] had stepped in as a director whilst he “buried his head in the sand”. He asked that his condition be taken into account when considering the company’s failings. In the absence of any medical evidence, [NAME] concluded that [NAME] had been suffering from depression at the material time.

23. As for financial standing, the average balance on the bank statements produced was £1268. However, reliance was placed on a loan agreement dated 31 July 2015 with [NAME], who described himself as an “Insurance Booker”. The agreement which was for a period of 10 years from 31 July 2015 purported to be a loan agreement for £50,000 with interest payable on the first day of each year at an annual rate equal to the rate Mr

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[NAME] paid from time to time under his credit agreement with his bank plus 2% and not less than 5% per annum. The agreement was silent as to the rate that Mr [NAME] was paying to his bank at the time of entering into the agreement.

24. Following the conclusion of the public inquiry, [NAME] sent further documentation and submissions to [NAME]. On 16 August 2017, [NAME] sent an email informing [NAME] that he had decided to replace one of the older coaches with a newer one; [NAME] was to continue undertaking PMI inspections and random checks on the driver defect reporting system; [NAME] was also going to “spot check” the drivers (they were already checking the tachographs); all coaches would undergo brake testing every 8 weeks. He accepted that it was “obvious” that his good repute had been lost which saddened him after 20 years especially as it was due to illness. [NAME] was booked to sit the international CPC examinations in December 2017 and he would work for eight hours a week as the company’s transport manager. [NAME] indicated that he would like to carry on in the business, operating the new coaches along with the long serving staff. On 25 August 20127, [NAME] wrote again, indicating that [NAME] had agreed to act as the company’s transport manager until [NAME] obtained his CPC qualification.

[NAME]’s decision

25. In his written decision, [NAME] found that [NAME] gave balanced and credible evidence and he accepted it. The forgery was not disputed. He found that [NAME]’s evidence was significantly self-serving and unlikely to be entirely reliable. The thrust of his evidence was that whilst he had been suffering from mental health issues along with a range of family difficulties between 2015 and early 2017, significant adverse events had taken place within [NAME] when [NAME] was the guiding mind of the company between 12 February 2016 and July 2017 when no nominated transport manager was in post. Yet, [NAME]’s evidence was the only evidence that [NAME] had heard about the period, when on his own evidence, [NAME] had been ill and not in his “right mind”. [NAME] had been very significantly handicapped by the decision not to arrange for [NAME] to attend the hearing. [NAME]’s attempts to facilitate her attendance had been rebuffed.

26. [NAME] found:

a) Administrative arrangements within the business were chaotic and incapable of being relied upon. Correspondence from the OTC was not responded to and where it was, copies were not retained. Different family members purported to sign company documents in roles they did not hold. The failures to manage these basic functions, lack of attention to detail and the absence of a transport manager more likely led to a failure to notify change and led to the deployment of a coach on the road on 4 July 2016 when it was not insured; b) The company had not notified changes to the operating centre in a timely manner;

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c) The failure to address correspondence in a timely fashion will have contributed to the [NAME] lacking an approved transport manager and professional competence after the departure of [NAME]; d) There was no evidence that the company had notified the OTC of [NAME]’s imprisonment and therefore his unavailability to carry out his transport manager functions; e) Failings and shortcomings in the in-house maintenance arrangements were likely to have led or contributed to the high rate of prohibitions which had increased to 62% over 2 years by the date of the public inquiry; f) The size of the fleet and its age and condition will have contributed to the failure to maintain it in a fit and serviceable condition; g) [NAME] was replaced as a director by [NAME], there was no “taking up of the reins” during the relevant period, whilst in the same period, [NAME] entered into negotiations with [NAME] with a view to him becoming transport manager; engaged in the purchase of replacement vehicles and it was he who took the decision to drive a coach when it had broken down (and we would add that he was also in charge of the workshop and described himself as the General Manager to [NAME]). h) There was little evidence that [NAME] played any significant role in the business during her directorship. Where there was evidence of her involvement, it included the countersigning of one of the [NAME] forms and her failure to establish that what she was signing was true (and we would add, entering into correspondence with the OTC on 20 January 2017 which was misleading to say the least); i) It was more likely than not that a member of the [NAME] forged [NAME]’s signature and [NAME] was disinclined to find that the forgery was the unknowing or guileless act it was portrayed as being. The application was submitted very close to the date that [NAME] was committed to prison; j) The [NAME] failed to cooperate with [NAME] in his investigation despite his preparedness to be flexible; k) [NAME] noted the prohibition rate over 5 years and 2 years and took note of the “S” marked prohibition concerning a serious fuel leak which he described as having previously been repaired; l) The [NAME] had failed to retain maintenance records for 15 months in accordance with its undertakings; m) Despite the seriousness of the allegations, the company had chosen not to arrange the attendance of [NAME] nor [NAME] even in the light of the allegation that it was he who had forged [NAME]’s signature; n) The [NAME]’s compliance risk score was assessed as Red/Red for roadworthiness and for traffic matters.

27. [NAME] concluded that on any analysis, this was a bad case not only in terms of the shortcomings identified but that they ranged across so many areas of activity and involved a real threat to road safety. Whilst he sympathised with the impact of [NAME]’s health condition, it was the expectation of any individual or enterprise that when difficulties were caused by personal circumstances, suitable contingency plans were made resulting in compliance. It was manifestly the case that such contingency plans did not achieve that result. [NAME] may have been removed as a director, he was not effectively

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replaced and whilst he remained unwell, an application was made for him to become transport manager in July 2016 whilst he remained responsible for the workshop. [NAME] concluded that his confidence in the [NAME] was seriously undermined and he could not trust the company to achieve compliance in the future.

28. In relation to [NAME]’s good repute, he was satisfied that Paragraph 1(3) of Schedule 3 applied as [NAME] had been convicted of more than one serious offence (being defined as attracting a term of imprisonment in excess of 3 months and any form of custodial sentence being included). He was therefore required to determine that [NAME] was no longer of good repute as a transport manager. He nevertheless went on to consider whether, absent the mandatory provision, he would have exercised his discretion and found that [NAME] had lost his good repute. He answered that question in the affirmative. In reality, [NAME] was the guiding mind of the business and it was impossible to separate his conduct and actions from those of the [NAME], which [NAME] found to be seriously deficient. He did not consider such a finding to be disproportionate.

29. As for the repute of the company as [NAME], there was no evidence that [NAME] played any role of significance whilst director; [NAME] admitted the forgery of the [NAME]’s signature and purported to be a director of the company; [NAME] chose not to be present at the public inquiry, even when allegations were made against him and his presence had been requested by [NAME]. [NAME] further noted conflict in the evidence before him about [NAME]’s future involvement in the company: at the hearing [NAME] suggested that [NAME] would only have a short term involvement with the operation and then following the hearing, it was proposed that he would be the transport manager once qualified. Collectively, those involved in the licence had engaged in persistent conduct adversely affecting road safety, criminal in nature and which was anti-competitive. Such conduct was entirely unbecoming of an [NAME]. Having considered the Senior Traffic Commissioner’s Statutory Document No.10, [NAME] was satisfied that “severe” action was warranted. Having undertaken the appropriate balancing exercise, he then asked himself the Priority Freight question (Priority Freight 2009/225) and answered it in the negative. He had little confidence in the [NAME]’s management and he was not persuaded that the offer of [NAME] or [NAME] as transport managers at this late stage could provide him with any comfort. In the result, [NAME] made the orders set out at the beginning of this judgment. He did however determine, as an act of mercy, taking account of [NAME]’s personal circumstances, that [NAME] should refrain from disqualifying [NAME] from holding or applying for an [NAME]’s licence in any capacity. That did not mean that [NAME] would immediately be fit and suitable to hold a licence.

The Appeal

30. The appeal was listed at 10.00 on 9 January 2018. At 10.48 the administrative office received an email from [NAME] stating:

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“Mr [NAME] has no intention of leaving the company should the appeal be successful and will complete his operators cpc has stated to the Traffic Commissioner (sic) (he will take exams until he passes if necessary). Mr [NAME] has no managerial role whatsoever and Mr [NAME] has retired”.

[NAME] attached to the email a further document entitled “To whom it may concern” in which he stated that “personal family matters” required him to stay at home. He indicated that he wished that the statement be taken into account and insofar as it was not a repetition of the grounds of appeal, we did so.

31. The grounds of appeal were submitted by [NAME] as who is now the sole director of the company. We will deal with them in turn:

a) The change of the operating centre was notified to the OTC and an email confirming this had been sent by the OTC.

We note that [NAME]’s findings on this issue were that the notifications in respect of the company’s operating centre were not timely (see paragraphs 7 and 16 above), not that they were not notified at all. The ground is silent as to when the changes took place and when it is asserted that the notifications took place and no evidence was produced at the public inquiry to support the company’s assertions that the changes were notified promptly when the company changed its operating centre. The ground is dismissed.

b) In respect of the nomination of [NAME] as transport manager in August 2015, the OTC had been informed that he held grandfather rights.

This ground fails to address the issue that the company failed to provide documentary evidence of [NAME]’s grandfather rights and further fails to address the fact that the application was signed by [NAME] as a director. The ground is dismissed.

c) The unsatisfactory repair of the radius arm which had fractured during the accident of 4 July 2016 was clearly of long standing and several DVSA officers had missed it when the vehicle had been inspected. At no point was the company asked about the repair.

We are satisfied that there is nothing in this point. [NAME] rightly determined that there was no evidence as to how long the vehicle had been in the possession of the company; the vehicle’s maintenance records were not produced at the hearing (as they should have been) and the unchallenged evidence of [NAME] was that despite a number of attempts to meet with [NAME], who he had been told was the transport manager (working full time within the company) and despite a number of requests for all vehicle records to be produced or made available for inspection, the company did not co-operate with those requests at all,

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resulting in the absence of any discussion or interview with the acting transport manager or anyone in a managerial role about maintenance generally and/or the circumstances of the accident and as a result, the maintenance investigation could not be completed. Whilst it may be that DVSA officers had inspected the vehicle prior to the accident and that it had been MOT’d without the repair being identified, [NAME]’s findings of fact are not open to criticism;

d) [NAME]’s findings in respect of the “S” marked prohibition in respect of an excessive fuel leak were that the same leak had previously been the subject of a prohibition and had been repaired with the prohibition lifted two days before the second fuel leak. Invoices for repairs and parts (which had not been produced to [NAME]) would have shown that the two leaks were from different components and that the MOT at which the first prohibition was cleared did not identify any ongoing defect.

We note that [NAME]’s evidence before [NAME] was that in the first instance, the fuel tank had leaked and in the second, the high pressure fuel pump had failed. It is therefore clear that his evidence was that the leaks related to two different parts of the fuel system and it would appear that [NAME] may have misunderstood his evidence on this point. However, the significance of the prohibition history of the vehicle was that it had suffered two serious fuel leaks (which are safety critical) within a short period of time and that the second prohibition was “S” marked, not because of the previous fuel leak but because (according to the Prohibition Assessment at pg 91 of the bundle) “the defect should have been detected at the first use/daily walk round check”. It was considered that the defect should have been spotted in view of its description which was “fuel leakage, which is hazardous to other road users, constant fuel leak from tank/pipe area covered by undertray, large pool left on roadway and trail as vehicle was driven”. We further note that there was no appeal against the prohibition assessment. So, whilst it may be that [NAME]’s comments about the leak being from the same component may have resulted from a misunderstanding of the evidence, that does not materially affect the fact that an “S” marked prohibition was issued to the vehicle which denoted a significant failure of the company’s maintenance systems.

e) In relation to the last prohibition issued on 14 July 2017 which was between the two public inquiry hearings, the second prohibition issued to the vehicle was for a defective service brake, which failed during the MOT itself and as it was a sealed part, the defect could not have been detected beforehand.

We note that [NAME] described the defect as “it’s just one of them. You can’t see that it’s going to fail”. But we note again, that there was no appeal against this prohibition being issued and the relevance is that the vehicle was issued with prohibitions within two days of each other for safety critical defects.

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f) Tapley brake tests were being done by [NAME] and were stapled to the inspection sheets and these were shown at the public inquiry.

There is nothing in this point. It is correct to state that [NAME] was told about the Tapley brake tests being undertaken by [NAME] but [NAME] did not produce any evidence that they were being undertaken and we reject the assertion that “these were shown at the public inquiry”. In any event, [NAME] took account of the involvement of [NAME] in the maintenance of the company’s vehicles and accepted that the tests were being undertaken when coming to his decision and his determination that he remained concerned about trusting the company in the future was not open to criticism.

g) [NAME] will not have any management role in the company with [NAME] being the transport manager undertaking the PMIs and brake tests until [NAME] has passed his CPC examination. [NAME] is now the sole director. The company had a good MOT pass rate and [NAME] had failed to comment on vehicles which had been checked by the DVSA which had not attracted any prohibitions.

The first part of this ground relates to a managerial decision made after the public inquiry which this Tribunal cannot take into account. The evidence before [NAME] was that [NAME] would continue to manage the company whilst [NAME] would be employed as a driver until he found employment elsewhere. Even if we could take new evidence into account (which we cannot) we agree with [NAME]’s assessment of [NAME] and with his concerns about [NAME]’s involvement in the management of the business in the future. As for vehicle inspections which have not resulted in prohibitions being issued, those are reflected in the percentage figures of 50% and 62% set out in [NAME]’s decision.

h) [NAME] believes that the company should be given a chance as a result of the proposed vehicle reduction from ten to five, the involvement of [NAME] and [NAME] and the purchase of newer vehicles.

We are satisfied that these matters were taken into account by [NAME] when he was conducting his balancing exercise and his conclusion that the adverse matters far outweighed the positive matters cannot be described as plainly wrong.

i) [NAME] felt it was “inhumane” for [NAME] to expect [NAME] to attend the public inquiry due to the serious health issues suffered by her mother and when [NAME] was the “only close relative nearby”. It was unfair that the company was penalised by her failure to attend.

This point is wholly misconceived. There were five applications for adjournments made by the company to allow [NAME] to attend. It was she who had voluntarily taken on the sole directorship of a company and it was she who was ultimately responsible and answerable for the company’s failings as the sole director. She had many questions to

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answer and it was an act of mercy on the part of [NAME] that she was not disqualified as a director of a company holding an [NAME]’s licence as a result of the adverse findings relating to her period of directorship. If she had attended the public inquiry (and we find arrangements could and should have been made for her attendance to take place), [NAME] would no doubt have been interested in hearing her evidence about which documents within the bundle she had in fact signed. There are many signatures within the bundle purporting to be those of [NAME] which are so dissimilar as to require an explanation and we highlight this aspect of the documentation being mindful that courts and tribunals should be cautious in making adverse findings relating to handwriting without the benefit of expert evidence. The signatures that have struck us as being significantly dissimilar (and the list is not exhaustive) are on pages 180, 197 and 198, 222, 252 and 306 of the bundle. [NAME]’s approach to the issue of [NAME] attending to give evidence and her role in the operation of seriously non-compliant company are not open to criticism.

32. In the additional emailed statement, [NAME] made the additional submissions:

a) The Traffic Commissioner stated that the company was at a disadvantage as a result of [NAME] failing to attend the public inquiry. [NAME] did not feel that he had any allegation to answer as a result of the witness statement signed by [NAME] confessing to the forgery of [NAME]’s signature. [NAME] felt that his reputation had been damaged enough after “this allegation” was printed in a leading trade magazine. As a result, the company should not have been disadvantaged by his decision.

We are satisfied that [NAME] fails to understand or comprehend the seriousness of his position in relation to the allegation of forgery. [NAME] had provided a witness statement disclosed to [NAME] stating that [NAME] had told him that he had forged his signature and had apologised for it. We fail to understand how, in those circumstances, [NAME] (or indeed [NAME]) felt that there was any need to challenge the evidence of [NAME] which [NAME] ultimately found was reliable and credible. We are further satisfied that it was inevitable that [NAME] would make adverse findings as a result of [NAME] failing to attend the public inquiry to address the allegations. There were of course issues arising out of him signing documents purporting to do so as director of the company when at the material time, he was not.

b) [NAME] failed to give sufficient weight to [NAME]’s ill health which [NAME] did not take seriously and therefore, he did not show any “compassion”. In any event, [NAME] has been removed from any managerial role within the company.

[NAME] clearly did take account of [NAME]’s ill-health and refrained from disqualifying him as a director as a result. The assessment that [NAME] made about [NAME]’s role during the period when [NAME] was

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director was reasoned and balanced and we reject the suggestion that [NAME] lacked compassion. This ground of appeal is without merit.

c) [NAME] was biased and treated the company unfairly and incorrectly.

There is absolutely no evidence to support this contention.

33. We are satisfied that this is a bad case of lack of compliance with the regulatory regime, poor maintenance of the company vehicles and with serious wrong doing having been perpetrated by members of the [NAME] and we agree with [NAME]’s assessment that they cannot be trusted to operate a compliant operation in the future. In the circumstances, we are satisfied that the appeal is wholly misconceived and that neither the law or the facts in this case impel us to interfere with [NAME]’s decision as per the decision in [COMPANY] & [NAME] v Secretary of State for Transport (2010) EWCA Civ. 695 and the appeal is dismissed.

34. By way of post script, we should add that we are satisfied that there was insufficient evidence before [NAME] to find that [NAME] had lost his good repute as a result of the provisions of paragraph 1(3) of Schedule 3. There was no memorandum of conviction in respect of either offence. [NAME] accepted that his first conviction for driving whilst disqualified attracted a suspended period of imprisonment of four months, it would appear from the newspaper article, that the second conviction attracted a sentence of two months consecutive to the four months, which would be insufficient for a finding of mandatory loss of repute. However, [NAME]’s determination that he would nevertheless have found that [NAME] had lost good repute taking all of the circumstances into account is beyond criticism.

Her Honour Judge Beech 22 January 2018