Upper Tribunal Upholds Refusal of Restricted PSV Licence Due to Insufficient Information

[2016] UKUT 0551 (AAC) 1

UKUT 0551 (AAC) Appeal No. T/2016/45 IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of [NAME_2], Traffic Commissioner for the East of England dated 27 June 2016

Before: Her Honour Judge J Beech, Judge of the Upper Tribunal [NAME_4], Member of the Upper Tribunal [NAME_5], Member of the Upper Tribunal

Appellant:

[redacted] For the Appellant: [redacted]

Heard at: Field House, 15-25 Bream’s [ADDRESS], [POSTCODE] Date of hearing: 6 December 2016 Date of decision: 14 December 2016

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that the appeal be DISMISSED

SUBJECT MATTER:- Application for restricted PSV licence; whether the Appellant satisfied the requirements of good repute, main occupation and adequate arrangements for compliance with the law (ss.14ZB(a), 14ZC(1)(b) and s.13(3)(b) of the 1981 Act).

[2016] UKUT 0551 (AAC) 2

CASES REFERRED TO:- [COMPANY_8] & [NAME_9] v Secretary of State for Transport (2010) EWCA Civ. 695; Ladd v Marshall (1954) 1 WLR 1489

REASONS FOR DECISION

1. This is an appeal from the decision of the Traffic Commissioner for the East of England (“[NAME_10]”) made on 27 June 2016 when he refused the Appellant’s application (“[NAME_6]”) for a restricted PSV operator’s licence.

Background

2. The factual background to the appeal appears from the documents and the [NAME_10]’s written note of his decision. By an application received on 21 September 2015, [NAME_6], trading as [NAME_7], applied for a restricted PSV operator’s licence authorising two sixteen seat minibuses. In the main occupation section of the application, he stated that he was employed by [NAME_11] for an average of thirty hours a week. The address of [NAME_11] was the same as [NAME_6] home address. In the convictions and penalties section of the application, [NAME_6] recorded that in 2009, he had been imprisoned for a period of three years for an offence of causing grievous bodily harm without intent.

3. By a letter dated 12 October 2015, the Office of the Traffic Commissioner (“OTC”), made ten requests for further information, including details of the nature of the work to be undertaken under the licence and the projected income to be generated under the licence; details of [NAME_6]’ main occupation, including proof of income; details of the connection between the application and [COMPANY_7], a company previously incorporated by [NAME_6]. In response, [NAME_6] described the work to be undertaken as “school transportation mainly”. He anticipated that the main operational hours would be 8am – 4pm and that the generated income would be between £400 and £500 per week. The main drivers of the vehicles would be himself and his father, [NAME_13]. His main occupation “at this current time” was that of Taxi Driver. As for his conviction, he highlighted that he had been charged with a s.20 offence rather than the more serious, s.18, grievous bodily harm with intent. The conviction resulted from an altercation when he was a young adult. However, he had been released early “due to my exceptional good character before the charge and whilst imprisoned”. He had since obtained a PSV driving licence and received a private hire badge from Leicester City Council. As for [COMPANY_7], he had “closed” that company and would be operating in his own name. Attached to the response were a number of wage slips showing [NAME_6] employer to be “[NAME_6]

[2016] UKUT 0551 (AAC) 3

Travel” and that his gross income from that employment was less than that anticipated from operating vehicles under a restricted licence. Further, the bank statements he also enclosed, did not show payments from [NAME_11], but rather from a company called “[NAME_16]”.

4. On 19 November 2015, the OTC wrote to [NAME_6] again in a final attempt to resolve outstanding issues. There were five requests for further information including an explanation as to whether [COMPANY_7] had operated vehicles prior to the company’s closure and there was a request for the details of [NAME_6]’ connection with [NAME_14] trading as [NAME_17] who both held restricted PSV licences operating from the same operating centre as that proposed by [NAME_6]. His response was that the limited company had not operated any vehicles and that whilst [NAME_14] was his father, he had no connection with [NAME_19].

5. On 20 January 2016, a Case Worker within the OTC prepared a written submission for the [NAME_10]. It was noted amongst other points, that as a result of the financial information he had provided, [NAME_6] had failed to satisfy the main occupation requirement. Further, he had failed to provide any details about the circumstances in which he came to be imprisoned for a serious offence of violence. The Case Worker then failed to properly interpret the provisions in relation to good repute as set out in paragraph 1 of Schedule 3 of the 1981 Act and concluded that by reason of having been convicted of one offence and sentenced to a period of custody exceeding three months, [NAME_6] could not satisfy the good repute requirements. In the circumstances, a recommendation was made that [NAME_6]’ application be refused with an offer of a public inquiry. A Team Leader adopted the reasoning and recommendations. She also highlighted the links between [NAME_6] and his father and raised concerns that [NAME_15] may also have been unable to fulfil the main occupation requirement. The [NAME_10]’s decision was that [NAME_6] had failed to provide details of his conviction and that as a result, the [NAME_10] remained to be satisfied about good repute and he was concerned about the motives for [NAME_6]’ application and its links with his father’s restricted licence.

6. By a letter dated 11 February 2016, [NAME_6] was advised that the [NAME_10] was proposing to refuse his application because it failed to meet the criteria of good repute and adequate arrangements for securing compliance with the law relating to the driving and operation of PSV vehicles by reference to the main occupation requirement. [NAME_6] was requested to provide details of his conviction and further details of his employment and the reasons for making the application and its relationship with his father’s licence. [NAME_6] was advised of his right to request a public inquiry and that failure to respond or request a public inquiry within fourteen days from the date of the letter would result in his application being refused.

[2016] UKUT 0551 (AAC) 4

7. The OTC received [NAME_6]’ response on 29 February 2016. Whilst he made reference to his sentence, previous good character prior to the offence and his good character since, he did not provide any details as to the events leading up to and surrounding the offence itself. He did however highlight that that he was a university graduate in business studies. As for his main occupation, he was a taxi driver and he also worked part time, when required, to drive for [NAME_11]. His motivation for applying for a PSV licence was that he wanted to start his own company and hopefully increase his annual salary. The application was not connected to his father’s licence.

8. The submission to the [NAME_10] was revisited on 4 March 2016. It rightly described [NAME_6]’ response to the letter of 11 February 2016 as “brief” and noted that the response did not fully address all of the outstanding issues surrounding [NAME_6]’ conviction; it did not provide sufficient detail about his employment or how [NAME_6] was going to meet the main occupation criteria. It was noted that the original application for a restricted licence made by [NAME_14] had been on behalf of a partnership with his son [NAME_6] who at the time was unemployed. As this was likely to be adverse when it came to the main occupation requirement, the application was changed to that of [NAME_15] alone as a sole trader. It was unclear as to why [NAME_15] was now trading as [NAME_11] recommendation was that the application be refused. The [NAME_10] agreed with the recommendation, finding that he remained to be satisfied regarding ss.14ZB(a) and 14ZC(1)(b) of the 1981 Act and further determined that the application was unreasonable and/or frivolous under regulation 6 of the Public Service Vehicles (Operator Licensing) Regulations 1995 and accordingly refused the application on the papers.

Upper Tribunal Appeal

9. [NAME_6] appealed out of time. It transpired that both notices informing him of the refusal of his application were sent to his proposed operating centre rather than the correspondence address he had given on his application form. Leave to appeal out of time was granted on 29 September 2016.

10. In his grounds of appeal, [NAME_6] submitted that his main occupation was that of taxi driver, working for [NAME_11]. It followed that if he were to obtain a PSV licence, then his main occupation would not change. That of course demonstrates a misunderstanding as to the main occupation requirements. He was further concerned by the fact that correspondence from the OTC was addressed to him trading as [NAME_7] he thought that this may have had an adverse impact upon his application. In making this submission, [NAME_6] had failed to appreciate that when he submitted his application he did so, stating that he would be trading as “[NAME_7]” and that it was for that reason that the correspondence was addressed

[2016] UKUT 0551 (AAC) 5

in the way that it was. He was further concerned about the [NAME_10]’s finding that he had not established his good repute. The conviction was seven years old and since then he had worked with the public, including children and vulnerable adults. That demonstrated that he was of good repute. He told the Tribunal at the hearing that he thought that he had explained the circumstances of his conviction to the OTC and that in relation to the good repute and main occupation requirements, he had misunderstood what was required of him. Prior to the hearing, [NAME_6] did submit further details of his main occupation and sources of income which was received on 28 July 2016 but of course, this information was not before the [NAME_10] when he came to make his decision.

The Tribunal’s decision

11. During the course of the appeal hearing, the Tribunal pointed to the deficiencies in the information that [NAME_6] provided to the OTC, not only in the application form but in his responses to the requests for further information. We have already indicated to [NAME_6] that he simply did not answer in an adequate fashion the particular concerns of the [NAME_10] in respect of his good repute, his main occupation or the links there might be to his father’s restricted licence. Whilst he has now put before the Tribunal further information (which still did not include the circumstances surrounding his conviction) we are not satisfied that the conditions laid down in Ladd v Marshall (1954) 1 WLR 1489 have been made out. In the circumstances, we are satisfied that the [NAME_10]’s decision cannot be faulted. Neither the law nor the facts of this case impel us to come to a different view to that of the [NAME_10] as per the test in [COMPANY_8] & [NAME_9] v Secretary of State for Transport (2010) EWCA Civ. 695.

12. The appeal is dismissed.

Her Honour Judge J Beech 14 December 2016