Neutral Citation Number: [2012] UKUT 370 (AAC)                             Appeal No: T/2012/32

IN THE UPPER TRIBUNAL		
ADMINISTRATIVE APPEALS CHAMBER
(TRAFFIC COMMISSIONER APPEALS)

ON APPEAL FROM THE DECISION OF LESTER MADRELL, 
DEPUTY TRAFFIC COMMISSIONER for the WESTERN TRAFFIC AREA, 
DATED 16 MAY 2012

Before:
Judge Mark Hinchliffe, Deputy Chamber President (HESC); Judge of the Upper Tribunal.
George Inch, Member of the Upper Tribunal.
John Robinson, Member of the Upper Tribunal.

Appellant:
T J R SCAFFOLDING LTD

Attendance:
For the Appellant: 	No attendance and no representation

Appeal heard at: 	Victory House, Kingsway, London
Date of hearing: 	26 September 2012
Date of decision: 	19 October 2012

DECISION OF THE UPPER TRIBUNAL:

IT IS HEREBY ORDERED that the appeal be dismissed

Subject matter:	
Non-attendance at Public Inquiry. Failure to demonstrate improvement since previous maintenance inspection. No reason to interfere with Traffic Commissioner’s decision.

Cases referred to:
None

REASONS FOR DECISION:

1)	This was an appeal from the decision of the Deputy Traffic Commissioner for the Western Traffic Area made on 16 May 2012 when he revoked the appellant’s restricted operator’s licence under section 26 (1)(c)(iii); (e); (f) and (h) of the Goods Vehicles Licensing of Operators Act 1995, and disqualified director Mr Ryan Cathrae for a period of six months.

2)	The factual background to this appeal appears from the documents, the transcript and the Deputy Traffic Commissioner’s decision and is as follows:
(i)	The Appellant is the holder of a restricted operator’s licence granted on 14 January 2009 authorising four vehicles and no trailers. The operator was called up to public inquiry by call-up letter dated 23 March 2012. The public inquiry had been triggered by an unsatisfactory maintenance investigation that took place on 15 December 2011. Issues arising from the maintenance investigation included:
•	change of maintenance contractor without notification to the Traffic Commissioner;
•	no written driver defect reporting system was in use;
•	only five safety inspection sheets for the past 15 months were available for inspection, it being said that the remainder were with the appellant’s accountant. Of the five that were produced none had any brake performance readings on them and one sheet was significantly incomplete;
•	immediate prohibitions had been issued over the past three years including one “S” marked prohibition. The nature of some of the defects listed on the prohibition notices should have been found during drivers’ daily walk round check;
•	no forward planning system was in operation;
•	a previous unsatisfactory maintenance investigation had been carried out in September 2009 which led to a formal warning letter being sent;
•	it was apparent that the operator had not improved its performance or employed a competent person to oversee maintenance or compliance as there had been no improvement.
(ii)	 The public inquiry was originally scheduled to take place on 17 April 2012. On 16 April 2012 an email was sent to the Office of the Traffic Commissioner stating that the operator’s sole director, Mr Cathrae, was bedridden because he was a chronic asthmatic and was unable to breathe. The email went on to state: 
“You are welcome to go ahead with the enquiry without him as he does not have a defence in any case and all I can say is paperwork is now up-to-date and all our lorries are serviced and checked regularly along with paperwork to confirm this.”
(iii)	The Traffic Commissioner granted the application for an adjournment even though no medical evidence was submitted. A new date was arranged for the public inquiry to proceed on the afternoon of 16 May 2012. Letters advising of the new date was sent to the operator on 25 April 2012. On 1 May 2012 a further letter was sent to the operator enclosing additional documentary evidence.
(iv)	On the morning of 16 May 2012 Mr Cathrae emailed the Office of the Traffic Commissioner stating that he had just returned from holiday to find that he was due to attend the hearing, but was unable to do so. Mr Cathrae asked if the enquiry could be adjourned to another date and whether it could be heard in Newquay as Bristol was a three-hour trip. The Traffic Commissioner’s office requested booking confirmation of the holiday and this was emailed back. It showed confirmation of booking with Ryanair apparently made 4 May 2012 for a flight departing on 11 May 2012 and returning on 14 May 2012 - arriving at Bournemouth at 08:30 hours. The Deputy Traffic Commissioner refused the request for a further adjournment and Mr Cathrae responded by email, saying:
"You will have to proceed without me in my absence as I am unable to attend, but I feel it is unjust and uncalled for holding a hearing in Bristol when my yard is in Cornwall which is three hours away. All the lorries are maintained, there were no faults with the vehicles, we were just missing a few inspection reports.”
(v)	The public inquiry proceeded and the Deputy Traffic Commissioner heard evidence from the Vehicle Examiner. At the conclusion of the evidence the Deputy Traffic Commissioner gave an ex tempore decision. He found that there had been an unsatisfactory maintenance investigation in 2009 and breaches of the rules relating to tachographs in 2009 and 2010. There was then a further unsatisfactory maintenance investigation in November 2011 that demonstrated that the defects found matched to a considerable extent those found in 2009. In addition the company had failed to supply any evidence of financial resources and the Deputy Traffic Commissioner concluded that he could not be satisfied that there were still adequate financial resources available. The Deputy Traffic Commissioner concluded that the only proper course was to revoke the licence and he did so with effect from 23:59 hours on 31 May 2012. He further ordered that Mr Cathrae be disqualified for a period of six months because the fault for these matters lay with him and, given the history, the maintenance failings were serious to a high degree.
(vi)	The grounds of appeal alleged that the decision to revoke the licence was extremely harsh “as the vehicles have always been maintained regardless of the paperwork situation”.

3)	At the hearing of this appeal, the Appellant did not attend and was not represented. No explanation was received for the failure of the operator to attend at the appeal and so the tribunal decided to proceed to determine the matter on the evidence before us. In reply to the decision letter from the Traffic Commissioner’s office the operator had sent a letter dated 8 June 2012 asserting that a list of issues had been addressed, and enclosing documents headed ‘Supplier Activity (Summary)’ showing payments made from 2009. This letter was forwarded to the tribunal.

4)	The tribunal declines to take account of any matters that were not placed before the Deputy Traffic Commissioner but obviously could have been. The operator had every opportunity to present its case to the Deputy Traffic Commissioner. In any event, mere assertions carry negligible weight and documents showing money spent does nothing to overcome the issues arising following the maintenance investigation and at the public inquiry. The documents sent to the tribunal after the public inquiry are no substitute for evidence of forward planning, fully completed and timely safety inspection sheets, and an effective and recorded daily driver walk round inspection system.

5)	The tribunal will only interfere with the decision of a Traffic Commissioner if it is plainly wrong or if law and justice require that a different approach or judgement be made. In the present case we find that there has been a history of poor maintenance and poor maintenance arrangements and, despite the appellant’s assertions to the contrary, it simply cannot be said that the vehicles had been well maintained when immediate and ‘S’ marked prohibitions have been issued and when the necessary evidence to support such a contention is so clearly lacking. The case is aggravated by the fact that there was an unsatisfactory maintenance investigation in 2009, shortly after the licence was granted, and a formal warning letter was sent. Promises were then made, but these have clearly not been kept. We are of the view that Mr Cathrae must take responsibility for that.

6)	On top of that, despite the matter being clearly raised in the original call-up letter, no evidence to demonstrate sufficient financial resources has been submitted.

7)	In our view the Deputy Traffic Commissioner was entitled to reach the view that he did both in respect of the revocation and respect of the comparatively short disqualification. The appeal is dismissed.

Judge Mark Hinchliffe, DCP
19 October 2012