Neutral Citation Number: [2014] UKUT 0192 (AAC) 
Appeal No.  T/2014/10
IN THE UPPER TRIBUNAL		
ADMINISTRATIVE APPEALS CHAMBER
TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of Sarah Bell TRAFFIC COMMISSIONER for the West of England
Dated 20 December 2013

Before:
His Hon. Michael Brodrick, 	Judge of the Upper Tribunal
Stuart James			Member of the Upper Tribunal
David Rawsthorn		Member of the Upper Tribunal

Appellant:
MICHAEL CHARLES TAYLOR

	 
Attendances:
For the Appellant: The Appellant did not appear and was not represented.

Heard at:	Field House, 15-25 Bream’s Buildings, London, EC4A 1DZ
Date of hearing:	8 April 2014
Date of decision:	29 April 2014

DECISION OF THE UPPER TRIBUNAL
IT IS HEREBY ORDERED that this appeal be ALLOWED and the matter be remitted for rehearing.

SUBJECT MATTER:-	 Transport Manager, repute, professional competence, disqualification.	

CASES REFERRED TO:-	None

REASONS FOR DECISION

1.	This is an appeal from the decision of the Traffic Commissioner for the West of England who found that the Appellant, who had acted as Transport Manager for Christopher Andrew Stokes, had lost his good repute and professional competence as a Transport Manager and was unfit to manage the Transport activities of an undertaking.  The Appellant was disqualified from acting as a Transport Manager indefinitely and a rehabilitation measure was imposed to prevent him applying to remove the disqualification until he could show that he was trustworthy. 
2.	The factual background to this appeal appears from the documents and the Traffic Commissioner’s decision and is as follows:-
(i)	Christopher Andrew Stokes, (“Mr Stokes”) was the holder of a standard national heavy goods vehicle licence authorising two vehicles.  The licence commenced on 4 March 2003.
(ii)	It emerged in the course of an investigation by VOSA that in 2011 Mr Stokes notified his customers that he had ceased to do business as a sole trader and had moved to France.  Mr Stokes also told his customers that if they required animal transport they should contact Charles Frederick Snell, (“Mr Snell”).
(iii)	At one time Mr Snell held an operator’s licence but it was revoked in February 2011.  The VOSA investigation revealed that a vehicle, known to be operated by Mr Snell, was shown as an authorised vehicle on the licence held by Mr Stokes.  When interviewed under caution Mr Stokes admitted ‘lending’ his operator’s licence to Mr Snell in return for a share of the profits.  He added that he believed that Mr Snell held a licence and that his own licence could be used as an extension of that licence.
(iv)	It appears that at about the time that Mr Stokes decided to give up his business his then Transport Manager wrote to the Traffic Commissioner to inform her that Mr Stokes had retired and that he was therefore no longer needed as Transport Manager.
(v)	On 23 April 2012 the Central Licensing Unit, (“CLU”), wrote to Mr Stokes saying that it had come to their attention that he wished to surrender his operator’s licence.  He was provided with the relevant form and was invited to return it, completed, together with all relevant licence documents by 7 May 2012.  It appears that Mr Stokes’ response was to say that he did not wish to surrender the licence and that the Appellant was to be the new Transport Manager for the business.
(vi)	In June 2012 the Appellant was appointed, as the Transport Manager for Mr Stokes.   He resigned, with immediate effect, on 22 March 2013.  His letter of resignation was received at the CLU, on 3 April 2013.
(vii)	In December 2012 a vehicle specified on Mr Stokes’ operator’s licence and registered in his name was involved in a serious road accident.  During the investigation that followed the accident it became clear that at the time of the accident the vehicle was being operated by Mr Snell.  The driver of the vehicle at the time of the accident indicated that his instructions came directly from Mr Snell.
(viii)	Following the accident a Vehicle Examiner examined the vehicle.  One wheel was insecure, with eight out of the ten wheel nuts loose.  This defect should have been obvious to a careful and competent driver.  Air build up for the braking system was excessively slow.  Longstanding defects were found to the bodywork and the exhaust system, including an inadequate attempt to secure the main nearside rear view mirror.  The seal required where the tachograph sender unit is fitted to the gearbox was missing.  Although the defects found were serious and rendered the vehicle unroadworthy they did not cause or contribute to the accident.  An immediate prohibition was issued in respect of 6 separate defects.
(ix)	On 4 March 2013 Mr Stokes was interviewed under caution.  He admitted ‘lending’ his operator’s licence to Mr Snell in return for a percentage of the profits made by using the vehicles in question.  Mr Stokes maintained that he believed that the deal was lawful, saying that he had obtained advice.  In the course of the interview it became clear that Mr Stokes considered that it was the responsibility of Mr Snell to ensure that the vehicles were properly maintained.
(x)	On 26 January 2013 a vehicle displaying a licence disc in the name of Mr Stokes, towing a semi-trailer loaded with cattle, was impounded.  The vehicle was insured by Mr Stokes but the terms of the policy meant that it was covered for use by drivers in the course of his business, not that of Mr Snell.
(xi)	On 22 March 2013 the Appellant wrote to the Traffic Commissioner to inform her that he was resigning as Transport Manager, with immediate effect.
(xii)	On 12 April 2013 the CLU wrote to Mr Stokes asking him to provide details of the arrangements made to nominate a replacement Transport Manager.
(xiii)	On 8 November 2013 Mr Stokes was called to a Public Inquiry, which was to be held on 10 December 2013.  He was warned that the Traffic Commissioner was considering revoking, suspending or curtailing the licence under s. 26(1) of the Goods Vehicles (Licensing of Operators) Act 1995, ["the 1995 Act"] and/or revoking the licence under the grounds set out in s. 27(1) of the 1995 Act.  The grounds for considering action and the evidence in support of those grounds was fully set out.  This included the allegation that Mr Stokes had admitted ‘lending’ his operator’s licence to Mr Snell for a share of Mr Snell’s profits.
(xiv)	On 8 November 2013 the Appellant was called to a Public Inquiry, which was also to be held on 10 December 2013.  He was informed that the Traffic Commissioner would consider whether he continued to meet the requirements of good repute and professional competence, as a transport manager.  He was warned that disqualification, (from acting as a Transport Manager), was mandatory if the Traffic Commissioner found that he did not satisfy either of these requirements.  The Appellant was informed of his right to make representations and/or to attend the Public Inquiry.  This letter was sent to the Appellant at “Flat 3, 14 Fernleigh Road, Wadebridge, PL27 7AX.  This was the address given on Form TM1 when the Appellant was nominated as the Transport Manger under the licence held by Mr Stokes.
(xv)	On 21 November 2013 Mr Stokes wrote to the OTC to make it clear that he wished to surrender his licence and that he did not wish to hold an ‘O’ licence again.  He suggested that that being the case it was unnecessary to hold a Public Inquiry.
(xvi)	The Public Inquiry took place before the Traffic Commissioner on 10 December 2013.  Mr Stokes did not attend.  In view of his letter of 21 November 2013 the Traffic Commissioner had no difficulty in concluding that he was aware of the Public Inquiry.  Having allowed 30 minutes after the time set for the start of the Public Inquiry the Traffic Commissioner decided that the Public Inquiry should proceed in his absence.
(xvii)	The Appellant was also absent when the Public Inquiry was due to commence.  In his case the Traffic Commissioner said this:
“In relation to the Transport Manager, Mr Taylor, extensive steps have been taken to try to contact him.  His track and trace shows that the recorded delivery ended up as a return to sender.  The first class post letter has not come back in the dead letter post, and we have tried to contact him on all known numbers, including a mobile number which has had a message left on it and he has not returned the call.  I am satisfied that he is fully aware of what is happening here this afternoon and has chosen not to attend, and I am going to proceed”.
(xviii)	The Traffic Commissioner then heard evidence from the Vehicle Examiner and a Traffic Examiner the effect of which has been summarised above.  She gave a written decision dated 20 December 2013 in which she set out the background and the evidence, which we have summarised above.  She concluded that Mr Stokes had lent his operator’s licence, for gain, knowing that the arrangement was unlawful.  She took the view that he had deliberately sought to mislead the CLU and that the deliberate lending of an operator’s licence, which states on its face that it is “not transferable”, threatened fair competition and posed a risk to road safety, which was all too graphically illustrated by the condition of the vehicle which had been involved in the accident on 19 December 2012.  The Traffic Commissioner went on to explain why she considered that Mr Stokes had provided a ‘front’ of respectability behind which Mr Snell, an operator whose licence had been revoked, had been enabled to continue to operate, outside the jurisdiction of the Traffic Commissioner.  She concluded that he had shown a blatant disregard for the safeguards provided by the operator’s licensing regime.  For all these reasons she revoked the operator’s licence held by Mr Stokes, (with effect from 23.59 on 30 December 2013), and disqualified him indefinitely.
(xix)	Turning to the position of the Appellant the Traffic Commissioner pointed out that he had never been interviewed and could not be contacted.  She added that his name did not crop up at any stage between the date of his appointment and the date of his resignation, adding that “there is not one single piece of evidence that Mr Taylor spent even one day exercising his duties as transport manager on a licence where he put himself forward as doing so for a year”.  She concluded that the Appellant had acted as transport manager in name only and, as a result, had aided Mr Snell and Mr Stokes in their deception.  As a result she found that the Appellant, as transport manager, was no longer of good repute or professionally competent and that he was unfit to manage the transport activities of an undertaking.  She disqualified him indefinitely and directed that he could not apply for the disqualification to be removed until he was able to satisfy her that he was trustworthy.
(xx)	On 16 January 2014 the Appellant appealed against that decision.  In his notice of appeal he gave his address as 81 Pengelly, Delabole, Cornwall, PL33 9AS and his mobile telephone number as 07825285849.  In his grounds of appeal he said that he had not received letters from the Traffic Commissioner and that he had changed his address in 2013, with the result that he had not received the relevant correspondence and had not had a chance to speak to the Traffic Commissioner or defend himself.
(xxi)	On 21 March the Office of the Traffic Commissioner, (“OTC”), emailed the Tribunal, on behalf of the Traffic Commissioner, to draw the Tribunal’s attention to the information relating to the Appellant that was set out in a letter dated 7 January 2014 from Classic Transport Consultancy Ltd.  The background to this letter is that Mr Stokes asserted that the company had given advice as to the legality of the arrangement that he reached with Mr Snell.  The Traffic Commissioner gave the company an opportunity to comment on the assertion.  The letter provided a detailed response refuting the suggestion that Mr Stokes had been given any advice.  It went on to deal with the circumstances in which the Appellant was appointed as transport manager.  As a result two points emerged which may explain his non-attendance at the Public Inquiry.  The first is that the change of address between that shown on TM/1 and that shown on the notice of appeal took place after he ceased to be transport manager for Mr Stokes.  The second is that the contact phone number held by the CLU/OTC was recorded as 07825283849.  In other words the 8th digit was wrongly recorded as ‘3’ when it should have been ‘5’.  The author of the letter added that she had no problem contacting the Appellant on the correct number.
3.	When the Appeal, (which was listed for 10.30 a.m.), was called, shortly after 2.00 p.m. the Appellant was not present.  The Tribunal staff confirmed that he had not given any explanation for his absence nor had he made any request for an adjournment.  In those circumstances the Tribunal decided to hear and determine the appeal in his absence.
4.	On the information available to the Traffic Commissioner at the start of the Public Inquiry our view is that she was fully entitled to proceed in the absence of the Appellant.  In the passage quoted at paragraph 2(xvii) she pointed out that extensive steps were taken to bring the fact that he had been called to a Public Inquiry to his attention.  At that stage two crucial factors are likely to have been the fact (i) that the letter sent by First Class post had not been returned and (ii) that it was not possible to contact the Appellant on any of the telephone numbers provided, including what was believed to have been his mobile phone number.  Given the commendable steps taken by the OTC to contact the Appellant by all available means it would be wrong to conclude that the Traffic Commissioner was plainly wrong to proceed with the Public Inquiry in the Appellant’s absence.
5.	Instead we consider that this is one of those rare cases where we ought to apply a different test in order to ensure that the overall result is fair and in the interests of justice.  In our view the correct approach, in this particular case, is to ask what the Traffic Commissioner would have done had she become aware, on or before 20 December, either that the Appellant had changed his address after his resignation as transport manager or that his mobile phone number had been entered into the system with one digit incorrectly recorded or of both these matters?  It seems to us that the answer to this question is clear, namely that insofar as the Public Inquiry concerned the Appellant, she would have adjourned it to enable him to attend, if he wished to do so.
6.	In view of the course that we believe that the Traffic Commissioner would have taken, if she had had the advantage of the information now available to us, we have come to the conclusion that the appeal should be allowed and that the matter should be remitted to the Traffic Commissioner for rehearing and determination.  In our view given the consequences of disqualification in relation to the Appellant’s ability to earn a living by acting as a transport manager it is right that he should have an opportunity to explain himself.  However he should be under no illusions as to the difficulty of the task that he is likely to face.
7.	For the avoidance of doubt this order only applies to the Appellant.  The orders made in relation to Mr Stokes will remain in force.  In addition we add that in our view the course we have taken does not conflict with paragraph 17(3) of Schedule 4 to the Transport Act 1985 because the change of address and the incorrect recording of the Appellant’s mobile phone number are both circumstances which were in existence at the time of the decision the subject of the appeal.  The problem is that through no fault on her part the Traffic Commissioner was unaware of them at the time she made her decision.
8.	Finally we should mention those at the OTC whose attention to detail, after the event, alerted the Traffic Commissioner and the Tribunal to the matters that have led us to allow this appeal.  Given the pressures, which they currently face, their conduct is all the more commendable.

His Hon. Michael Brodrick, Judge of the Upper Tribunal, 
Principal Judge for Traffic Commissioner Appeals.
29 April 2014