Upper Tribunal Upholds Licence Termination for Non-Compliance

1

Appeal No. UA-2024-000517-T [2025] UKUT 149 (AAC)

IN THE UPPER TRIBUNAL ADMINISTRATIVE APPEALS CHAMBER

Appellant:

[redacted]

[NAME]’s Licence OH2036036

Before: Upper Tribunal Judge Ward, [NAME] and [NAME] on consideration of the papers.

Representation: Appellant:

[redacted]

On appeal from the [NAME] Commissioner for the West of England: Decision Date:

3 April 2024

DECISION

The decision of the Upper Tribunal is that the appeal is dismissed.

REASONS FOR DECISION

1. The appellant (hereafter “[NAME]”) appeals against the decision dated 2 April 2024 (notified by letter dated 3 April 2024) by the [NAME] Commissioner for the West of England (“the TC”) to terminate its [NAME]’s licence with effect from 2359 hours on 20 April 2024.

2. The appeal had originally been listed for oral hearing in Exeter on 2 April 2025. As [NAME] had not confirmed attendance, a direction, accompanied by a strike-out warning, was issued to it on 28 March. This prompted a response from its director, [NAME], indicating that there would be no attendance on behalf of [NAME]. No application was made for an adjournment. The hearing was accordingly vacated.

[COMPANY]

UA-2024-000517-T [2025] UKUT 149 (AAC)

2 3. The panel considered that the appeal could fairly be dealt with on the papers and convened by Teams in order to do so.

4. [NAME] held a restricted licence for use in connection with its groundwork business and operated 1 [NAME] and 2 trailers. Concerns arose when the [NAME] was stopped at a [NAME] check. This led to investigations being varied out by [NAME] and [NAME].

5. [NAME] was called to Public Inquiry in Bristol on 6 December 2023. The call-up letter identified concerns regarding, to summarise, drivers’ hours and the lack of tachograph records; inadequate maintenance and lack of maintenance records; and operating from an unauthorised operating centre.

6. [NAME] attended unrepresented. He had provided no material in advance. Noting that the papers had been sent to the operating centre on the licence, which was no longer then in use, the TC adjourned the Public Inquiry to a date in April 2024, to be held in Cornwall, where [NAME] is based. Meanwhile he suspended the licence until such time as he was provided with a completed application and advertisement in respect of the new operating centre.

7. The resumed Public Inquiry was held on 2 April 2024 in St Ives. [NAME] did not attend, although he had previously confirmed he would be attending. Several efforts to reach him by phone proved unsuccessful and the TC proceeded to reach a decision.

8. In his decision he accepted [NAME]’s evidence that, in summary, [NAME] could find no evidence of the sorts of compliance systems an [NAME] should have. In addition, [NAME] had driven an in-scope [NAME] on many occasions without using a digital tachograph driver’s card (because he did not have one) and without a driver Certificate of Professional Competence (“CPC”). He also accepted [NAME]’s evidence that [NAME] was unable to produce any maintenance documentation on 11 October 2023 in the run-up to the Public Inquiry. Some was later provided, but late. No driver defect reporting systems were in place. [NAME] stated he was the only driver but that is contradicted by the encounter on 26 July 2023 when the [NAME] was driven by [NAME]. Prohibitions were issued on that day.

9. Finding that all the matters raised in the call-in were made out, the TC revoked the licence under subsections 26(1)(f) and (h) of the Goods Vehicles (Licensing of Operators) Act 1995.

10. The relevant provision provides:

(1) Subject to the following provisions of this section and the provisions of section 29, a [NAME] commissioner may direct that an [NAME]'s licence be revoked, suspended or curtailed (within the meaning given in subsection (11) on any of the following grounds;…(f) that any undertaking recorded in the licence has not been fulfilled;…(h) that since the licence was issued or varied

[COMPANY]

UA-2024-000517-T [2025] UKUT 149 (AAC)

3 there has been a material change in any of the circumstances of the licence- holder that were relevant to the issue or variation of the licence.

11. The TC held that sub-paragraph (f) was made out because the rules on drivers’ hours and tachographs had not been observed and under sub-paragraph (h) because he considered that [NAME] was no longer fit to hold an [NAME]’s licence.

12. Later that day [NAME] spoke to the clerk, claiming that he had misread the date of the resumed Public Inquiry. The TC was unimpressed with that explanation, concluding that he saw no reason to revisit his decision, even were he to have power to do so.

13. As [NAME] chose not to appear at the oral hearing, the panel has only his original grounds of appeal to consider. We consider each in turn.

14. He had previously believed that as he held a restricted licence and his “usage was not intended to make a profit” he did not need to hold a CPC as a driver. When advised the contrary at the Bristol Public Inquiry, he stopped driving and passed his CPC. The panel notes that the failure to hold a CPC was not directly the ground for termination of [NAME]’s licence. The panel does not accept the explanation given, on which [NAME] has declined to make himself available for questioning, either at the resumed Public Inquiry or at an Upper Tribunal hearing. Nor does the panel find it credible that the use of the [NAME] for [NAME]’s groundwork business was not intended to make a profit.

15. He had previously understood that as the [NAME] never went further than 100 km from base, manual drivers logbooks were acceptable. However, once advised at the first Public Inquiry that that was not so, he had stopped driving the [NAME] and got a digital card. We repeat the comment above about the failure to submit to questioning. The source of the initial “understanding” is not named and in any event it was [NAME]’s responsibility to maintain a correct knowledge of relevant legal requirements.

16. The criticism made by the TC that [NAME] had said he was the only driver when in fact when the [NAME] had been stopped it was being driven by a Mr [NAME] arose because of a misunderstanding: when visited ([NAME] says by Mr [NAME], but Mr [NAME] may be intended) [NAME] had indeed been the driver. Mr [NAME] had had his own digital licence and logged his own hours. Seen with the other “explanations” above, the panel doubts the convenient “misunderstanding”. Further, in the panel’s view, the explanation betrays an attempt to distance himself from the proper recording of hours worked by a driver who was driving for [NAME] and for the recording of whose hours [NAME] was required to be responsible.

[COMPANY]

UA-2024-000517-T [2025] UKUT 149 (AAC)

4 17. It had been a difficult time as two clients had gone into liquidation and [NAME] had been told to vacate its original operating yard and that was why, as [NAME] himself puts it, “things slide, record-keeping is far from what it should be and important dates are muddled or completely forgotten.” The panel appreciates that business life has its ups and downs. However, the [NAME] licensing rules are about ensuring public safety and maintaining fair competition between businesses and a high level of compliance is expected of all operators, even in difficult times.

18. For the above reasons, the panel considers that none of the grounds put forward in [NAME]’s Notice of Appeal, individually or collectively, provide a reason to conclude that the TC’s decision is “plainly wrong”. Accordingly, the appeal is dismissed.

C.G.Ward

Judge of the Upper Tribunal

[NAME] Member of the Upper Tribunal

[NAME] Member of the Upper Tribunal

Authorised by the Judge for issue on 9 April 2025