Neutral Citation Number:  [2012] UKUT 343 (AAC)
								Appeal No.  T/2012/27

IN THE UPPER TRIBUNAL		
ADMINISTRATIVE APPEALS CHAMBER
TRAFFIC COMMISSIONER APPEALS

ON APPEAL FROM THE DECISION OF SIMON EVANS DEPUTY
TRAFFIC COMMISSIONER for the NORTH WESTERN TRAFFIC AREA 
Dated 26 April 2012

Before:
Judge Alan Gamble, Judge of the Upper Tribunal
Leslie Milliken, Member of the Upper Tribunal
Patricia Steel, Member of the Upper Tribunal

Appellant:

DAVID I BOOKER

Attendances: None

Heard at:	Victory House, 30-34 Kingsway, London, WC2B 6EX
Date of hearing:	3 September 2012
Date of decision:	26 September 2012

DECISION OF THE UPPER TRIBUNAL

The appeal is dismissed

SUBJECT MATTER:-  	

Repute of Transport Manager

CASES REFERRED TO:	None

REASONS FOR DECISION

1.	This is an appeal by David Booker, the appellant, against the decision of the Deputy Traffic Commissioner for the North Western Traffic Area dated 26 April 2012 that the Appellant’s repute as a Transport Manager was “marked as tainted” although not lost.

The Deputy Traffic Commissioner’s decision was taken after a Public Inquiry held on 11 April 2012.  That Public Inquiry was resumed from one which had been held on 26 April 2011 but adjourned on that occasion after a brief hearing.  The appellant was not present at the first hearing of the Public Inquiry.  However he was called to attend the second one, convened on 11 April 2012 “to answer questions going to his repute” in his role as a Transport Manager.  The appellant responded to that call and did attend the resumed Public Inquiry. He was unrepresented on that occasion. 

2.	The appellant did not attend the hearing before us.  Nor was he represented at that hearing.   In a letter dated 20 July 2012 he explained his non-attendance by saying that he could “not afford to come to London”.  He also expressed the desire in that letter that his case be heard in his absence.  However, he concluded that letter by saying “the other reason I am not coming to London is because I am not being ridiculed and humiliated again.”  That seems to be a reference to the appellant’s perception of what had happened to him at the resumed Public Inquiry of 11 April 2012.  He must, however, be in no doubt that had he attended the hearing before this tribunal he would have experienced no ridicule or humiliation.  On the contrary, we  would have afforded him a fair and full hearing and treated him with courtesy.  In all the circumstances, we acceded to the appellant’s expressed wish and heard the case in his absence.  We determined the appeal on the basis of the material available to us on file; exactly the same material as the appellant has access to himself.  We decided the case by applying our independent judgement afresh to all the relevant facts and circumstances and carefully considering whether the Deputy Traffic Commissioner’s decision was plainly wrong.  The appellant’s comment in his letter referred to above that “I think we can all predict the outcome of this appeal hearing” is wholly misconceived.  

3.	The background circumstances to this appeal appearing from the material available to us on file including the Deputy Traffic Commissioner’s decision are as follows:

(a)	BnG Taxies Ltd of which Mr D Armett is the sole director and his wife Mrs H Armett is the company secretary held a standard national public service vehicle operator’s licence for four vehicles.  In addition, Mr and Mrs Armett as a partnership firm held a restricted public service vehicle operator’s licence for two vehicles.  

(b)	Mr Armett as the sole director of another company BnG Coaches Ltd applied on behalf of that company for a standard national public service vehicle operator’s licence for five vehicles on 13 September 2011.  It was proposed to surrender the licence for BnG Taxies Ltd if that application were granted. 

(c)	At the first hearing of the Public Inquiry on 26 April 2011 it was accepted by the operator and his then Transport Manager that there was at least a serious question mark over that Transport Manager’s qualification to act as such in respect of a public service vehicle operator.  Between the two Public Inquiries it was clarified that he could not lawfully do so as he lacked the appropriate certificate of professional competence.  

(d)	The appellant was recruited as a new Transport Manager for  BnG Taxies Ltd on a form TM1(P) signed on 13th September 2011 by Mr Armett and Mr Booker.  (the application for BnG Coaches does not name any Transport Manager see Page14). On that form  the appellant declared that he would be contracted to work for the operator ‘in the capacity as Transport Manager’  for ‘one day per week’ with his hours being ‘twelve hours or more if needs be’ and also stated that he was not on any other licence as Transport Manager. The appellant by his own admission in oral evidence at the Public Enquiry of 11 April 2012 did not work these hours for the operator as his Transport Manger.

(e)	The appellant was unclear in his evidence to the Public Inquiry of 11 April 2012 about whether he had been Transport Manager for BnG Taxies Limited or BnG Coaches Ltd or both but accepted that he must have been. In answer to the Traffic Commissioner he also said he was Transport Manager on two other licences though he did not know their names. 

(f)	It was also clear from the evidence at that Public Inquiry that there was little contact between the appellant and Mr Armett the director of the operators.  
	
(g)	There was no proper arrangement in place between the appellant and Mr D Armett for the invoicing and payment of the appellant’s fees as the Operator’s Transport Manager.  

4.	With effect from 4 December 2011, section 14ZA(3)(a) of the Public Passenger Vehicles Act 1981 (as amended) imposes a requirement that a Transport Manager designated by an applicant for a standard licence must be “of good repute”.  Schedule 3 to that Act as amended supplements the above provision.  In particular, paragraph 1(10) of that Schedule makes it clear that the provisions of Schedule 1 relating to “good repute “ extend to “a Transport Manager” as well as to “an individual who is an applicant for, or the holder of, a PSV Operator’s Licence”. 

5.	In his decision the Deputy Traffic Commissioner makes findings in paragraph 35 which he states are “based on the evidence”.  Those which are directly relevant to this appeal are laid out as follows:-

	

	“Transport manager arrangements and David Booker:

f.	I had witnessed the entirely unedifying spectacle at the public inquiry of the aftermath of a broken relationship between an operator and transport manager.  The operator Mr Armett claiming extensive deployment of Mr Booker, who denied that was the case; of a relationship with no clear agreement about actual work expectations between the parties and no clarity around payment, as well as little or no attention by either party to the agreed hours of working set down in the application.  Such application forms to approve transport managers contain a declaration every bit as important as the promises made on an application for an operator licence, which had been ignored on both sides.

g.	I found the evidence of both Mr Armett and Mr Booker unconvincing.  I find it is more likely than not that neither acted with the sort of professionalism that I might expect of those engaged in the bus industry.  It emphasises yet again the importance of absolute clarity around the contracting of external transport management so that both parties know what is expected and there  channels of communication that enable issues and concerns to be raised quickly and resolved effectively.”

6.	We are satisfied that the above findings made by the Deputy Traffic Commissioner were based on the evidence presented before him and were not irrational.  It was for the Deputy Traffic Commissioner who had the advantage of seeing and hearing the witnesses give their oral testimony to assess their credibility and to make findings of fact on the basis of his assessment of all of the evidence.  

7.	So far as the reasons for his decision are concerned, the Deputy Traffic Commissioner expressed those in respect of the appellant in paragraphs 49 and 50 of his decision thus:

	“49.	In reaching a decision that is proportionate in all the circumstances, I weigh in the balance the contribution to the predicament in which he found himself of Mr Armett.  Communication was not what it should have been but Mr Booker also bears responsibility to be absolutely clear about his role and responsibilities: the fact that at one stage in the process, he had not appreciated that he was also the transport manager for BnG Taxis was a shocking one.  He failed to resign in timely fashion although he did ultimately take that step. 

	50.	I find there are grounds upon which I might conclude that his repute as transport manager has been forfeit.  I have addressed myself to the particular question as to whether to find he was no longer of good repute would constitute a disproportionate response, and whether I might therefore find that repute has not been lost.  By the narrowest of margins I conclude that it would be disproportionate: his repute is tarnished but is retained.”

8.	We have carefully considered the above reasons expressed by the Deputy Traffic Commissioner in the light of his findings of fact narrated above.  We hold that those reasons are sound.  More generally, we hold that the total conduct of the appellant was unprofessional.  In particular, we draw attention to the following matters along with those mentioned by the Deputy Traffic Commissioner in his decision:  the unofficial (to put it euphemistically) arrangements made by the appellant with the operator in respect of his fees and hours of work along with his failure to disclose that he had another Transport Manager’s appointment on the “details of Traffic Manager to be named on a standard licence” form on 13 September 2011 where he only mentioned that he was a self-employed Transport Consultant and did not mention that he held another post as a Transport Manager as well as that which related to BnG Coaches Ltd.  In view of all these matters we are satisfied that the Deputy Traffic Commissioner’s decision was not plainly wrong when he held that the appellant’s repute was “tarnished” albeit “retained”.  Indeed in our view, it was correct and proportionate.  We consider that the Deputy Traffic Commissioner  acted reasonably in holding as he did in paragraph 50 of his decision quoted above that it would have been “disproportionate” for him to have held that the appellant’s repute was lost.  We are content to uphold the Deputy Traffic Commissioner’s decision as it stands while reminding the appellant that it was only “by the narrowest of margins” that a finding that he has lost his repute was not made. 

9.	We have also carefully considered the issues raised by the appellant in his Letter of Appeal.  These can be summarised as firstly, that the appellant felt disadvantaged especially by comparison with the operator by his lack of a solicitor at the Public Inquiry of 11 April 2012 whereas the operator was represented by an experienced and specialised solicitor.  We note the feelings of the appellant in regard to that matter but we do not consider that he has shown that he was deprived of a fair hearing at that Public Inquiry.   Secondly, he emphasises what he regards as the lenient treatment of the operator in the Deputy Traffic Commissioner’s decision.  We would simply state in regard to that issue that the only appeal before us was that brought by the appellant.   Thus we have no jurisdiction to comment on the other aspects of the Deputy Traffic Commissioner’s decision.   Those were not before us in these proceedings.

10.	The Deputy Traffic Commissioner’s decision in respect of the appellant is confirmed and the appeal dismissed.

	
	A J GAMBLE
	Judge of the Upper Tribunal
	Date: 26 September 2012