Upper Tribunal (Administrative Appeals Chamber)

 

IN THE UPPER TRIBUNAL Case Nos. T/2015/33

ADMINISTRATIVE APPEALS CHAMBER

(TRAFFIC COMMISSIONER APPEALS)

 

 

ON APPEAL from the DECISION of Mr Kevin Rooney

TRAFFIC COMMISSIONER for the West of England Traffic Area

Dated 3 May 2015

 

 

Before:

 

Mr M R Hemingway,  Judge of the Upper Tribunal

Mr George Inch, Member of the Upper Tribunal

Mr D Rawsthorn, Member of the Upper Tribunal

 

 

 

Appellant: Dangerfields Executive Travel Limited & Judith Ann Young

 

Attendances

 

For the Appellant; Mr Paul Carless (senior)

 

 

 

 

Heard at: Field House, Breams Buildings, London

Date of Hearing: 20 August 2015

Date of Decision: 7 September 2015

 

DECISION OF THE UPPER TRIBUNAL

 

IT IS HEREBY ORDERED that these appeals be DISMISSED.  The stay which had been granted by the Traffic Commissioner in respect of the restricted public service vehicles operator’s licence which had been granted to Dangerfields Executive Travel limited on 9 January 2012 expires with this decision.  The licence is revoked from 0001am on 16 October 2015.

 

Subject Matter:

Good repute; Reliability of evidence.

 

Cases referred to:

None.

 

 

 

REASONS FOR DECISION

 

Background

 

1. The Upper Tribunal was dealing with two appeals from decisions of the Traffic Commissioner for the West of England, both of which had been made on 3 May 2015.  One of those decisions was to revoke the restricted public service vehicles operator’s licence PH1103859 with effect from 23:59 hours, 5 June 2015.  The other decision was to refuse to grant licence application PH1132169 because the appellant Company had forfeit its good repute and, therefore, failed to meet mandatory requirements for the granting of such a licence.  The Upper Tribunal, as had the Traffic Commissioner, considered both appeals together and we have issued one single decision with respect to them.

 

Facts

 

2. The factual background to these appeals appears from the documents and the Traffic Commissioner’s decision.  It is summarised below.

 

3. Nicholas Young is the son of Bruce Edward Young and Judith Ann Young.  Bruce Edward Young and Judith Ann Young held standard national licence PH0005130 Dangerfields Car Service Limited and Bruce Edward Young was the specified Transport Manager.  That licence was granted in June 1993 and ceased in June 2007 when continuation was not sought.  The licence holder was called to Public Inquiry twice, on both occasions with respect to maintenance concerns, and at a Public Inquiry conducted in 2006 the licence was curtailed from 25 vehicles to 15 vehicles for a period of 10 days.

 

4. Bruce Edward Young, Judith Ann Young and Nicholas Young were directors of standard national licence PH1048298 Dangerfields Travel Limited, with Bruce Edward Young as the Transport Manager. That licence was granted in July 2005 and revoked in January 2011.  The licence was called to Public Inquiry in December 2007 and in July 2009 for maintenance reasons.  It was called to Public Inquiry in October 2010 because the operator declared convictions incurred in November 2009 for holding 9 copy operator licence discs with intent to deceive.  Mr Bruce Edward Young also declared that he had been convicted of fraud.  At that Inquiry Bruce Edward Young lost his good repute with immediate effect as did Dangerfields Travel Limited.  The licence was revoked with effect from midnight on 30 January 2011.  Bruce Edward Young was disqualified from holding or obtaining an operator’s licence for two years from 29 October 2010 until 29 October 2012.

 

5. On 9 January 2012 a licence was granted to Dangerfields Executive Travel Limited, being a restricted public service vehicle operator’s licence.  It was granted at Public Inquiry and authorised the use of two vehicles.  An undertaking was given that Nicholas Young would act as Transport Manager.  At the date of the grant of the licence Judith Ann Young was the sole director. However, Companies House records reveal that, on 20 January 2012, Nicholas Young and Bruce Edward Young were both appointed as directors.  Bruce Edward Young was removed as a director on 1 December 2014.  It was only as a result of preparatory steps being taken for the Public Inquiry that the appointments of 20 January 2012, they not having been formally notified, were discovered. 

 

6. In December 2012 a DVSA Traffic Examiner, Matt Thompson, visited the operator and his report was marked as unsatisfactory.  It was noted that Nicholas Young had been present at that visit.  On 2 August 2013 one of the operator’s vehicles was stopped and it was found that the driver was not using a digital tachograph driver’s card and did not have other records of his duties with him.  The driver was issued with a prohibition notice and a fixed penalty.  On 10 October 2013 Mr Thompson visited the operator once again and again the report was marked as unsatisfactory.  Nicholas Young was not present on that occasion, it being said that he was on long‑term sickness absence.  However, Bruce Edward Young was. On 22 July 2014 the Office of the Traffic Commissioner wrote to the operator requesting evidence of financial standing and independent evidence that issues referred to in Mr Thompson’s reports had been addressed.  In August 2014 the Company submitted a new application for a standard national licence requesting authorisation of six vehicles.  It was indicated in that application that the existing restricted licence would be surrendered upon grant.   In the meantime, on 11 July 2014, a vehicle belonging to the operator had been stopped at Chepstow race course and it was found that there was no record of previous domestic work undertaken.  Sometime after that, on 6 December 2014 a driver for the operator failed to produce records having been stopped but those records were subsequently produced at a later date.

 

7. Having received the operator’s response to the letter of 22 July 2014 and having received the request for the new licence, the Office of the Traffic Commissioner called the appellant to a Public Inquiry, in respect of the current licence and the new application.  The reasons why it was decided to hold a Public Inquiry are set out fully in the written decision of the Traffic Commissioner of 3 May 2015.  They all arose out of the above history and facts. 

 

The Public Inquiry

 

8. The Public Inquiry took place before the Traffic Commissioner on 26 March 2015.  The appellant was represented, in connection with both matters before it, by Mr P Carless Junior.  Oral evidence was received from Nicholas Young and Matt Thompson.  There were no other witnesses.

 

9. Matt Thompson, in evidence, adopted a statement he had prepared for the purpose of the Public Inquiry.  He updated what was said therein by referring to the incident of 11 July 2014 when a driver at Chepstow Race Course had failed to produce relevant records and another incident in December 2014 when, again, a driver had failed to produce records although, on this latter occasion, they had subsequently been produced.  He said it was his understanding from information provided by the operator that Nicholas Young had been absent for around three months due to sickness and that this was why he had not been present at the visit in October 2013.  He had reviewed more recent records kept by the operator as well as maintenance records and these demonstrated improvement.  He said that he had received full co‑operation from the operator and that it was fair to say the operation being run was complex, mixing, as it did, domestic and European drivers hours rules. 

 

10. Nicholas Young was asked about the appointment of Bruce Edward Young as a director in January 2012 this appointment, of course, having been made during the disqualification period referred to above.  He said that the appointment had been an error on the part of the family accountant and that Bruce Edward Young had, in fact, played no part in the business since before December 2012.  Once the mistaken appointment had become apparent it had been rectified by his removal as a director. 

 

11. Asked about his illness and the way in which this had impeded his ability to act as Transport Manager, he said that he had been away from work due to sickness from July 2013 until late December 2013.  However, he had remained constantly in contact with the office remotely.  He had been back working on a full‑time basis since January 2014.  During the period of his absence digital downloads had not been carried out because no‑one else in the business had been trained to do that.  If the same problem arose again he would bring in a temporary transport manager.

 

12. Asked about the Chepstow incident, he explained that the driver had been instructed not to work before 12 noon on the relevant day but had, in fact, “done a job in a car for about an hour” for the business and that this amounted to his simply running an errand.  No passengers had been carried.  The Traffic Commissioner, though, put to Nicholas Young that that evidence appeared to be at odds with written evidence provided by Judith Young, concerning the same matter, and that she had said that the driver had not been scheduled to work prior to 1.30 pm on that date but that because another driver had failed to turn up for work he undertook another “non‑PCV route” for three hours during the early part of that morning.  The Traffic Commissioner observed, in his decision, that he was left not knowing which account of events was correct.

 

13. Nicholas Young was asked why a written response to the Traffic Examiner’s Inquiry, which had been sent on 22 October 2013, was in the name of Bruce Edward Young.  Nicholas Young was not able to provide an explanation which the Traffic Commissioner found to be satisfactory.

 

14. Mr Carless Junior, in closing submissions, contended that the second DVSA visit had come at a difficult time bearing in mind Nicholas Young’s illness.  Matters had improved with respect to record‑keeping.  An undertaking could be offered that Bruce Edward Young would play no part in the management, administration or control of the business.  Nicholas Young had put in place suitable systems to meet a complex situation.  Maintenance was satisfactory.

 

The Traffic Commissioner’s findings and reasons

 

15. The Traffic Commissioner’s decision and the reasons for it are set out in the full written reasons of 3 May 2015.

 

16. The Traffic Commissioner had clearly been concerned about the appointment of Bruce Edward Young as a director given the above disqualification.  He noted that he had been provided with a letter said to have been written by one Peter Leech, the family accountant.  In that letter it was said that the appointment had been made by mistake, and gave the date of the mistaken appointment as 18 February 2013.  It was also said that when the mistake was realised Company House records had been corrected.  The Traffic Commissioner, though, expressed disquiet about the letter because it was undated, its appearance lacked professionalism, the actual signature could not be read and, most concerning thought the Traffic Commissioner, it referred to Bruce Edward Young as having been appointed as director on 18 February 2013 whereas, in fact, the other evidence including the Company House records, showed that the appointment had been made on 20 January 2012. The Traffic Commissioner noted that the period of appointment spanned more than one tax year and that, accordingly, it was likely that Bruce Edward Young would have had to have completed a tax return during the period of the directorship or that one would have had to have been completed on his behalf by his accountant.  The Company had filed returns and accounts in both January 2013 and January 2014 and Bruce Edward Young was referred to, in both, as a director.  Against that background the Traffic Commissioner did not believe that if the appointment had been an accidental one, the mistake would only have been realised in December 2014.  Further, a suggestion made by Nicholas Young that the appointment had been for tax purposes appeared at odds with the contention it had been a mistake.  The Traffic Commissioner concluded he was not able to apportion only “little weight” to the letter. 

 

17. As to Judith Young’s knowledge of the appointment, the Traffic Commissioner said that even if an accidental appointment had been made and that neither the accountant nor Bruce Edward Young had brought it to her attention, had she read the Company accounts prior to signing them she would have noticed the appointment.  Thus, she had “the knowledge that the person would have acquired if he had not wilfully and recklessly failed to make such enquiries as an honest and reasonable person would make”.  Reference here was made to guidance contained in the decision in T2011/060 Nolan Transport v Vehicle and Operator Services Agency. Finally, on this point, the Traffic Commissioner noted that Bruce Edward Young had dealt with the visit from Matt Thompson in October 2013 and had subsequently provided a written response on behalf of the Company.  He concluded that the Company did have knowledge that Bruce Edward Young had become a director of the Company during the period of concern “both in name and in fact”.  This was a matter of significance because it raised the issue of honesty and of a disqualified director seeking to circumvent the disqualification. 

 

18. There had been difficulties and failings with respect to the downloading of digital tachograph vehicle units and driver cards.  However, there was evidence of recent improvement as acknowledged by Matt Thompson such that, whilst there had been technical infringements, only limited weight would be attached to them. 

 

19. Nicholas Young had not been able to attend regularly at the operating centre, in his capacity as Transport Manager, for a period of six months or so between July and December 2013.  That was contrary to an undertaking which had been given when the restricted licence had been granted.  This appeared to have caused a failure to download digital tachographs and had also led to Bruce Edward Young having significant input, at that time, in the business.  That was regarded as a point of significance. 

 

20. Road worthiness was satisfactory as was financial standing in relation to the existing licence such that no adverse points were taken about either. 

 

21. Turning to matters of repute, Bruce Edward Young was found to have played a controlling role within the business for a significant period and had been specified as a director during his period of disqualification.  Nicholas Young had given evidence which was in conflict with the written evidence of Judith Young regarding the Chepstow incident.  The Traffic Commissioner thought Judith Young’s explanation aligned more closely with the circumstances as recorded in DVSA evidence such that this gave concerns as to the veracity of Nicholas Young’s evidence.  Further concerns stemmed from Nicholas Young having failed to satisfactorily explain why Bruce Edward Young had been involved in the response given in October 2013. 

 

22. The Traffic Commissioner correctly noted that he was required to conduct a balancing exercise.  That is what he proceeded to do.  He noted the areas above which had been said to be of significant concern and observed that trust is at the heart of operator licensing.  He had, he said, found an operator who had circumvented a disqualification order, failed to comply with an undertaking to have a transport manager, failed to ensure that tachographs were downloaded and had disowned statements made in writing by a director (Judith Young) to the office of the Traffic Commissioner, that latter point being a reference to the Chepstow incident.  The Traffic Commissioner did, however, note some positive features concerning satisfactory vehicle maintenance and an improvement with respect to the management of tachographs and drivers hours though none of that outweighed the difficulties with respect to honesty.

 

23. The Traffic Commissioner thought it very unlikely, given the background, that the operator would conduct itself in a compliant manner in future.  Accordingly, the licence should be revoked.  As to the new application, given that the Company had forfeited its good repute, the new application simply had to fail.  The Traffic Commissioner did, though, go on to observe in his decision that Nicholas Young appeared to have “what it takes to run a compliant operation” though it was said that if any future application he were to make were to be successful he would have to demonstrate beyond doubt that there was no further detrimental influence from his father and that he would need to show, rather than simply assert, that he was continuously and effectively managing a transport operation.

 

Grounds of appeal

 

24. On 29 May 2015 the appellant filed a notice of appeal.  An application for a stay had already been to the Traffic Commissioner though, because the papers before us did not actually confirm that, clarification had to be sought, and was given, at the Upper Tribunal hearing, that the stay had actually been granted.  The grounds of appeal were to the effect that the Traffic Commissioner had attached insufficient weight to the favourable aspects of the case and had treated the appointment of Bruce Edward Young as a director more seriously than the evidence warranted.  Further, too much weight had been attached to the “confusion” regarding the Chepstow incident. 

 

25. The grounds of appeal were built upon in a skeleton argument provided by Mr P Carless Senior.  It was contended, therein, that the evidence did not support the finding that Bruce Edward Young’s involvement in the business had been significant.  Whatever the concerns regarding the presentation of the accountant’s letter that did not alter its substantive content.  It was significant that the Traffic Commissioner had found that Nicholas Young was capable of running a compliant operation.

 

The appeal hearing

 

26. The appellant was represented by Mr P Carless Senior at the hearing before us.  He presented his arguments realistically.  He accepted that if the appeal regarding revocation failed then it was inevitable that the one concerning the new application for a licence would do so too.

 

27. Whilst a disqualification is just that, said Mr Carless, there had been no evidence of any formal meeting by the directors which had led to the appointment nor any other evidence of a knowing appointment in breach of that disqualification.   It is reasonable for people to rely upon an accountant.  As to his actual involvement, it is impossible to manage a transport operation remotely and, during the period of illness, he was merely acting as a de facto Transport Manager and was doing much less than a director would have done. The Traffic Commissioner had been wrong to say, as he had at paragraph 44 of his written reasons, that he would have reached the same conclusion regarding revocation of the licence even if it had been a standard national licence rather than a restricted licence.  That was merely speculation. 

 

28. Returning to the disqualification Bruce Edward Young, said Mr Carless, had not been making executive decisions as a director would but had only played a part in the business because of his son’s illness.  Nicholas Young has been found to be a person who has what it takes to be an effective transport manager and, therefore, the way forward would be to grant the new licence.  Such an outcome would mean he would continue to play a role whereas Bruce Edward Young would not and so, therefore, the regulatory system would have worked and achieved an appropriate result.

 

Discussion

 

29. Our task, on an appeal such as this, is, in straightforward terms, to conduct a review of the Traffic Commissioner’s decision and the reasons given for it.  We are not conducting a rehearing as to the merits but we are concerned as to whether the Traffic Commissioner, for example, was plainly wrong or misdirected himself about the law or the evidence, took into account irrelevant matters or failed to take account of relevant ones or offended any rules of natural justice. 

 

30. We consider that that Traffic Commissioner approached the evidence rationally and reached supportable conclusions which were properly explained and which were not against the weight of the evidence.  To the extent that the arguments tendered on behalf of the appellant might be taken to amount to contentions that the Traffic Commissioner did otherwise, we would reject them.  In particular, for the reasons we set out below, we conclude that it was properly open to the Traffic Commissioner to make the findings he did with respect to the appointment of Bruce Edward Young as a director and his actual involvement with the organisation at the material times. 

 

31. The Traffic Commissioner is criticised for attaching too much weight to the shortcomings he had identified with respect to the letter from the accountant.  He had that letter in front of him as do we.  It is not an impressive document for the reasons he gave and it does refer to a date of appointment which was significantly after the date all of the other evidence suggests he was actually appointed.  We also note, in passing, that it offers no explanation as to how what is claimed to have been a mistaken appointment of him as a director could have come about.  Mr Carless Senior contends that the shortcomings such as the absence of a date do not detract from the substance of the letter but the point the Traffic Commissioner was making was that, given all the various shortcomings, little weight could be attached to the letter and, therefore, its substance.  That was a proper conclusion to have reached.

 

32. It was acknowledged, at the hearing, that Bruce Edward Young had, for a time, played the role of “de facto transport manager”, during the period of Nicholas Young’s illness.  The Traffic Commissioner properly found, in our view, that he had, as it was put at paragraph 37 of its written reasons, played a controlling part within the business for a significant period during the disqualification.  He had been present at Matt Thompson’s second visit and had subsequently provided him with a written response by e‑mail.  The evidence that his appointment had come about as a result of a mistake had been found to be unpersuasive.  Clearly, in light of the disqualification, Bruce Edward Young ought to have had no involvement of any substance with the business and the fact that he had done so caused significant concern.  It seems clear to us that the Traffic Commissioner was fully entitled to take that on board as a matter weighing significantly against the appellant in these appeals.  It went to the question of trust.

 

33. The Traffic Commissioner was concerned regarding what we have referred to as the Chepstow incident.  This was not so much because of the failings identified on the part of the driver, though that was not insignificant, but because of the subsequent different explanations received from two directors of the same Company. We do not accept that the Traffic Commissioner accorded too much weight to this point.  It was reasonable to expect that the two directors would have given the same explanation for what were, after all, relatively straightforward and simple matters.  As it was, one director had given a specific written explanation for the benefit of the Office of the Traffic Commissioner prior to the hearing and another director (Nicholas Young) had given a different explanation when giving evidence at the Public Inquiry.  This, inevitably, it seems to us, raised questions of honesty and, in particular, the honesty of Nicholas Young given that the Traffic Commissioner preferred, for the reasons properly explained, the version offered by Judith Young. 

 

34. We now consider, in light of the above, the contention that the outcome of the appeals and the decisions taken were not proportionate bearing in mind what were described as the “favourable aspects”.  We accept that there were some favourable aspects as properly identified by the Traffic Commissioner.  This included the lack of any difficulties with respect to vehicle maintenance, the improvement in record‑keeping which had been seen recently and the, to an extent at least, favourable impression the Traffic Commissioner appeared to have had with respect to Nicholas Young’s abilities to run “a complaint operation”.  We see no reason to think that those positive features were not weighed in the balance along with the negative ones and, indeed, it is clear that they were properly and specifically considered.  However, the Traffic Commissioner was considering matters against a background of a poor previous complaints history, against concerns he had about the truthfulness of evidence given by Nicholas Young, against what he had found to be the significant involvement of Bruce Edward Young in the business despite the disqualification and two visits which had been marked as unsatisfactory. 

 

35. In light of the above we consider that the Commissioner achieved the right balance between competing factors and did not attach too much weight to the negative factors nor too little to the positive ones.

 

36. Finally, as to the “speculation” point made to us at the hearing, we do not see that that has any bearing upon our decision.  The point is that the licence in question was a restricted licence and the Traffic Commissioner did decide it should be revoked.

 

Conclusion

 

37. For the reasons set out above the appeal against the revocation of the licence is dismissed.  Mr Carless Senior, realistically, accepted that if we reached that point we would have to dismiss the appeal concerning the application for the new licence.  That must be right.  Accordingly, that appeal is dismissed too.

 

38. The Traffic Commissioner gave the appellant just over one month’s notice of the date on which the revocation was to take effect.  No criticism has been made of the period given.  In our view the correct approach, having decided to dismiss the appeals, is to replicate the Traffic Commissioner’s decision as far as is reasonably possible.  We do, therefore, direct that the revocation is to take effect from 0001am on 16 October 2015.

 

 

(Signed on the original)

 

M R  Hemingway

Judge of the Upper Tribunal

 

Dated: 7 September 2015