Neutral Citation Number: [2013] UKUT 409 (AAC)

Appeal No.  T/2013/19

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of Beverley Bell TRAFFIC COMMISSIONER for the North West of England

Dated 12 February 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:

SUSAN TATTERSALL t/a TMS

 

 

 

 

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: 26 July 2013

Date of decision: 20 August 2012

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED.

 

 

 

 

SUBJECT MATTER:- Repute

 

 

CASES REFERRED TO:- T/2010/49 Aspey Trucks [2010 UKUT 367 (AAC)]

 

 

 

REASONS FOR DECISION

 

 

1.           This is an appeal from the decision of the Traffic Commissioner for the North West of England to refuse the Appellant’s application for a standard national goods vehicle operator’s licence.

2.          The factual background to this appeal appears from the documents and the Traffic Commissioner’s decision and is as follows:-

(i)                   On 20 October 2011 the Appellant applied for a standard national goods vehicle operator’s licence authorising 3 vehicles and 1 trailer.  Nicholas Hudson was named as the Transport Manager.  The Appellant signed the application in her capacity as the sole owner of the business.  Immediately above her signature were these words: “I understand that the above undertakings will be recorded on the licence.  Failure to comply with the conditions or undertakings recorded on the licence may result in the licence being revoked, suspended or curtailed”.

(ii)                 On 28 November 2011 the Office of the Traffic Commissioner, (“OTC”), wrote to the Appellant to request further information on three points.  The Appellant provided information under cover of a letter dated 10 December 2011.

(iii)                On 21 December 2011 the OTC wrote to the Appellant requesting further evidence of financial standing.  The letter was expressed to be a final attempt to resolve the matter.  A response was required by 4 January 2012.

(iv)                On 11 January 2012 the OTC informed the Appellant that her application for an interim licence had been refused.

(v)                 On 18 July 2012 the application came before the Deputy Traffic Commissioner at a Public Inquiry.  It appears that the Appellant was unaware of the date of the Public Inquiry and, as a result, did not attend.  The application was refused. 

(vi)                When the Appellant became aware of that decision she appealed by way of a Notice of Appeal dated 28 August 2012, (she was granted permission to appeal out of time).  After the appeal bundle had been prepared the Traffic Commissioner checked it.  As a result she came to the conclusion that there had been a number of procedural irregularities in her office.  With a view to putting matters right and dealing with the application fairly she offered the Appellant the opportunity to set out her case at a fresh Public Inquiry. 

(vii)              The Tribunal took the view that it was inappropriate to have an appeal outstanding at the same time as a Public Inquiry into exactly the same matter.  The Appellant was therefore invited to withdraw her appeal on the clear understanding that she would be offered a fresh Public Inquiry.  In October 2012 the Appellant was contacted on a number of occasions to see whether she would withdrawn the appeal on that understanding, however she did nothing.  On 9 November 2012 the matter was drawn to the attention of the Principal Judge.  He took the view that the stalemate could not be allowed to continue.  He concluded that the appropriate course was to deal with the matter on paper and to allow the appeal so that the case could be remitted to the Traffic Commissioner for a fresh Public Inquiry.

(viii)             On 9 November 2012 the OTC received a phone call from the Appellant’s husband.  He asked about the new date for the Public Inquiry and then, according to the file note, said that he knew that his wife was the applicant but that other than her name being on the application ‘she knows nothing about the transport side of things’.

(ix)                On 15 November 2012 the OTC wrote to the Appellant to inform her that the Traffic Commissioner intended to hold a Public Inquiry into her application on 17 December 2012.  The letter stressed that the Traffic Commissioner would have particular regard to the need for the Appellant to satisfy her that she was of good repute and professionally competent.

(x)                 The Public Inquiry took place before the Traffic Commissioner on 17 December 2012.  Both the Appellant and her husband Stephen Tattersall were present.  At the start of the Public Inquiry the Traffic Commissioner sought to clarify whether any trailers were included in the application.  Mr Tattersall answered that there was one.  The Traffic Commissioner explained that she was directing the question to his wife and that he would have an opportunity to address her or to give evidence at a later stage.  When the Appellant was asked about trailers she replied: “I think I originally did but I can’t think now.  I usually leave that in the Transport Manager’s hands”. 

(xi)                Nicholas Hudson, the proposed Transport Manager, was not present at the Public Inquiry.  The Appellant explained that he was “tied up at work”.  When the Traffic Commissioner asked where he worked there was a quiet discussion between the Appellant and her husband, which prompted the Traffic Commissioner to remind Mr Tattersall that he could not answer for his wife.  The Appellant said in her evidence that Mr Hudson would be working 25 hours per week.

(xii)               The Traffic Commissioner then invited the Appellant to tell her what she wanted to say in support of the application.  Before the Appellant could answer she had to request Mr Tattersall not to whisper to his wife.  The Appellant began by asking why it had taken so long and why she had not had an answer to her application.  The Traffic Commissioner explained the history, which we have summarised above, and then asked the Appellant to tell her why she wanted to have a licence, what vehicles she intended to run and what her arrangements were going to be.  The Appellant replied that she was: “Trying to get a licence to run some vehicles so I can start up a little transport company to employ people and try to be self-sufficient”.  When invited to carry on she replied that she had: “nothing else to say really”.  The Traffic Commissioner explained that she was trying to assist but that the Appellant seemed to be being quite difficult.  The Appellant denied that this was the case.

(xiii)             The Traffic Commissioner then established that the Appellant had not been in the transport industry before, that she was not working at that time and that she wanted to operate two 7.5 tonne vehicles, which she had not yet acquired.  The Appellant said that she had not got as far as getting contracts for work because she had not got an operator’s licence, nor had she employed any drivers.  She said that she thought that vehicle running costs would come to about £4,000 per year but that she had not done any calculations and did not know if she would make a profit.  She said that planned safety inspections would take place: “about every month”.  A little later the Traffic Commissioner pointed out that the application stated that the interval would be 6 weeks.  The Appellant accepted that this was correct.  When asked about her operating centre she said that she did not have one.  When asked where the place specified on the application was she replied that she could not answer and when asked if she had looked at her application she replied: “nope”.  A little later she explained that she left it all to her transport manager.

(xiv)             The Traffic Commissioner then turned to the standard undertakings set out in an application for an operator’s licence.  When the Appellant was asked what arrangements she had made for compliance with the tachograph rules there was a long pause at the end of which the Appellant said: “Can’t answer.  No comment”.  She gave the same answer to questions about other standard undertakings.

(xv)              The Appellant said that she had discussed going into business with her husband as a partnership.  She explained that they had decided not to do this because of her husband’s job as a transport manager.  The Traffic Commissioner pointed out that this would not prevent him being a partner.  The Appellant replied that because her husband ran a fleet of 50 lorries he would not be able to run any more, hence the employment of Mr Hudson as transport manager.

(xvi)             The Traffic Commissioner asked about documents.  The Appellant said that she had not brought any documents relating to maintenance or driver defect reporting and she did not know what system she would use.

(xvii)            The Appellant was asked why the application mentioned 15 hours per week rather than the figure of 25 hours per week which the Appellant had given earlier and which was correct.  She replied that the correct figure was 15 and that she “got all confused”.  She was asked why she had not read the application form before coming to the Public Inquiry.  She replied: “Because I did expect the transport … well, my husband to speak for me really”.  She explained that he had filled in the application form.  The Traffic Commissioner then explained that the Appellant’s lack of knowledge, her approach and her lack of information all concerned her.  She gave a detailed explanation as to the need for a Traffic Commissioner to be able to trust individual operators and said that she would have to assess whether she could trust the Appellant.  She set out her concerns and asked whether she was being unfair to the Appellant, who replied that she was not being unfair.

(xviii)          Mr Tattersall then gave evidence.  He immediately said this: “It’s clear from the conversations that you’ve just had with my wife that obviously she’s not up to speed with the transport side of it.  She’s relied on me.  I’ve done the application and I’ve sourced Mr Hudson...”.  He went on to explain that the number of vehicles for which he was responsible in his job meant that under the new EU Regulations he could not be the transport manager for his wife’s business.

(xix)             Mr Tattersall said that when the application was originally submitted he had planned to be the transport manager but when that became impossible he found Mr Hudson.  He explained that because of delays the original plan to take on the work of another company came to nothing but that by then they had spent so much money that they decided to continue with the application.  In particular Mr Tattersall said that they had had to pay Mr Hudson a retainer of £20 per week.

(xx)               Mr Tattersall said that: “once we have it, (ie the operator’s licence), we can look for opportunities” for work.  He went on to say that depending on the contract or business “we could get, we’d need a driver, we’d subcontract maintenance”.  The Traffic Commissioner asked about the repeated use of “we” and whether it meant Mr Tattersall and his wife.  He replied: “Well, my wife’s the operator’s licence application because of the funds, or the majority of the funds, as you can see, are in her name”.  The Traffic Commissioner pointed out that this did not prevent a joint application and that she was interested as to why it was not a joint application.  Mr Tattersall replied that it was because the money was in his wife’s name and that the office in Leeds was very specific about the point.  He agreed that he knew about the industry and that his wife did not.  He said that the application was not made in his name because he did not have the finance and not made in joint names for a similar reason.  He accepted that the telephone numbers on the application were his phone numbers and that the address was that of an operator for whom he worked.  He explained that he was responsible for the application and he was the one with the knowledge of the industry. 

(xxi)             The Traffic Commissioner pointed out that it is a requirement that whoever holds an operator’s licence knows what they are doing. Mr Tattersall nodded and replied: “Well in my world, the transport managers usually have the in depth knowledge and all that, not the actual operator”.  At that the Traffic Commissioner said that he was testing her patience by trying to put the responsibility onto the transport manager rather than the operator.  Mr Tattersall denied doing so.  The Traffic Commissioner sought to explore what would happen if a driver phoned in with a problem at a time when the transport manager was not there asking whether the driver would ring him or his wife. She then asked the Appellant: “what would you say?” and the Appellant replied: “I’m not answering”.  When the Traffic Commissioner questioned this response Mr Tattersall intervened to say: “Well she’d say, ‘speak to me or to Mr Hudson’, wouldn’t she”.

(xxii)            The Traffic Commissioner then asked about the plans for the business if an operator’s licence was granted.  Mr Tattersall said that it would not acquire a vehicle: “until we’ve got a firm commitment off somebody that they’re going to give us the work”.  When asked what sort of work he replied: “moving goods from A to B”.  It became clear that the expectation was that Mr Hudson would be able to generate business through his contacts and that he would play a major part in the business because of his knowledge of the industry.  The Traffic Commissioner offered to adjourn to enable him to attend.  There was then a discussion about contact details to arrange the adjourned hearing during which it became apparent that the Appellant did not possess a mobile phone and that the contact number on the application was Mr Tattersall’s personal mobile phone number.  He said that it was provided to make contact easier.

(xxiii)           The Public Inquiry resumed on 9 January 2013.  The Appellant, her husband and Mr Hudson were all present.  Mr Hudson gave evidence and provided details of the other work, which he was then doing.  In relation to one company he initially said that he went in for two hours on Tuesdays and two hours on Thursdays.  Almost immediately he changed that to fours hours on each day.  Further questioning revealed that the amount of work involved would not take up eight hours each week.  A little later he said that he occasionally went in on Saturdays for half an hour.  He went on to agree that in a typical week he would go in on Saturday morning but would not normally go in on Tuesday or Thursday.  Mr Hudson apologised and said that he: “leant towards the guidelines”.

(xxiv)          When the Traffic Commissioner asked Mr Hudson what terms and conditions had been agreed with the Appellant for pay and the like he replied: “Well, obviously, I don’t get paid at the moment”.  He said that if the business started to make money he would take a salary but that the amount had not been discussed.  He added that his dealings in relation to the application had been with Mr Tattersall.  When asked who would get the work in he replied that Mr Tattersall was an excellent salesperson, or used to be, so that he would hopefully get work in, though he too had contacts.  When asked to what extent he had discussed the application with the Appellant he replied: “very little really”.

(xxv)            The Traffic Commissioner then asked Mr Hudson about the drivers’ hours rules.  It became clear that in some respects Mr Hudson was not thoroughly familiar with the way in which they operated.  The Traffic Commissioner then set out her concerns which were that the Appellant knew nothing about commercial vehicles, that it appeared that Mr Tattersall would, in effect, be running the business and that the transport manager was not familiar with the drivers’ hours rules.  She then asked: “How will you ensure that the vehicles are not overloaded”?  Mr Hudson replied: “It’s a good question”.  When pressed further he said that if there was any doubt the vehicle would be sent to the local weighbridge.

(xxvi)          Mr Tattersall was then recalled by the Traffic Commissioner.  She returned to the fact that she could not understand why the application was in the Appellant’s name when she knew nothing about lorries.  Mr Tattersall replied that it was because the money was in his wife’s name and that they did not think in terms of a partnership because his wife was providing most of the money.  After further questioning about the lack of any business plan the Traffic Commissioner asked Mr Tattersall about the discrepancy in the evidence as to whether or not Mr Hudson was being paid.  Mr Tattersall replied that it was not a regular payment and that he also took Mr Hudson out for a drink.

(xxvii)         The Traffic Commissioner gave a written decision dated 12 February 2013.  She set out the background and reviewed the evidence, which we have summarised above.  In general terms she made the following findings of fact:- (i) That the Appellant did not have adequate knowledge of the transport business or the details of her application; (ii) that the Appellant would be wholly reliant on her husband to deal with transport matters in relation to the business,  (iii) that she was unable to understand why the application was not made by a partnership, given that the operation would be controlled by Mr Tattersall, (iv) that the reality was that if the application was granted Mr Tattersall would be de facto operator and possibly also de facto transport manager and would, as a result be in breach of EU Regulations and (v) that Mr Tattersall had not been entirely truthful when giving evidence about payments to Mr Hudson.

(xxviii)        The Traffic Commissioner correctly directed herself that it was for the Appellant to establish that she was of good repute and that she had put in place proper arrangements to ensure compliance with the undertakings given on the application.

(xxix)           The Traffic Commissioner went on to consider a passage from the Tribunal’s decision in the appeal of T/2010/49 Aspey Trucks [2010 UKUT 367 (AAC)], where at paragraph 10 the Tribunal said:-

In a case such as this, the Deputy Traffic Commissioner was not looking at putting someone out of business. Rather, he was deciding whether or not to give his official seal of approval to a person seeking to join an industry where those licensed to operate on a Standard National or Standard International basis must, by virtue of S.13(3), prove upon entry to it that they are of good repute. In this respect, Traffic Commissioners are the gatekeepers to the industry - and the public, other operators, and customers and competitors alike, all expect that those permitted to join the industry will not blemish or undermine its good name, or abuse the privileges that it bestows. What does “Repute” mean if it does not refer to the reasonable opinions of other properly interested right-thinking people, be they members of the public or law-abiding participants in the industry? Consequently, the balancing exercise is best assisted by reference to the test identified in Crompton. Here Kennedy LJ said:

“There must therefore be a relationship of proportionality between the finding and the sanction, and that relationship has a direct bearing on the approach to be adopted in any set of circumstances to the question of whether or not the individual has lost his repute.”

(xxx)            Applying that test the Traffic Commissioner came to the conclusion that if the application was granted it was clear that the operation would not be run by the licence-holder but that it would instead be run by Mr Tattersall, who was already fully committed as the transport manager of another business.  The Traffic Commissioner concluded that the application had to be refused on the ground that the Appellant had failed to satisfy the requirement that she was of good repute.

(xxxi)           On 18 March 2013 the Appellant filed a Notice of Appeal, which was signed by Mr Tattersall.  She was given permission to appeal out of time.  The grounds of appeal raised the following points:- (i) the issue of finance and the question as to why the application was not made by a partnership, (ii) the fact that the questioning about costs and the way in which the business would operate did not make sense, (iii) that the whole process was biased by the Traffic Commissioner’s feelings and opinions as opposed to compliance with the guidelines and (iv) that contrary to the Traffic Commissioner’s conclusion Mr Tattersall would not be involved in the day to day running of the business.  While the grounds of appeal raise other matters they do not relate to the issue of good repute, which was the reason given for the failure of the application.

3.           Shortly before the date of the hearing the Tribunal received a letter from the Appellant explaining why she would not be attending the hearing.  She said that having read the transcripts of the two Public Inquiries; “it is clear that they have been compiled in such a way as to completely bias the reader in favour of the Traffic Commissioner’s decision”.  She went on to accept that she had made mistakes, for example by not declaring her husband as her representative and because of her ignorance of the industry, but she complained about the way in which she had been questioned.  She said that while she was providing the finance she relied on Mr Hudson as an experienced and CPC qualified transport manager and driver.  She complained that the way in which the application was handled from the start made it evident that it would never be granted.  She ended by saying that she had concluded that she no longer wanted to enter the transport industry.

4.           While it might be open to us to treat this letter as the withdrawal of this appeal we have decided against taking that course.  In our view the proper course is to decide the matter on the written material which is now before us.

5.           We have quoted from the transcripts of the two Public Inquiries because we consider that the passages we have chosen are revealing and support the conclusion that the Traffic Commissioner reached.  The suggestion that the transcripts have been compiled in a way that will bias the reader in favour of the Traffic Commissioner’s decision is a serious one but no evidence has been put forward to support it.  Our understanding is that transcripts are prepared by people who listen to the tape recording of a Public Inquiry and type out exactly what they can hear on the tape.  Our experience is that if something is inaudible a note to that effect will be included in the transcript.  Bearing in mind that the person preparing the transcript is unlikely to have been present at the Public Inquiry and bearing in mind that the Traffic Commissioner’s written decision was prepared some time before transcripts were requested, let alone prepared, we find it impossible to accept the suggestion that the transcripts have been altered in any material respect.

6.           We accept that in relation to finance, the question of whether the application should have been made by a partnership and the apparent lack of any real ‘business plan’ it may well be that the Traffic Commissioner and the Appellant and her husband were at cross purposes from time to time and that this may have had an adverse impact on the atmosphere at both Public Inquiries.  The Appellant and her husband clearly took the view that as it was the Appellant who was providing the money she was the only person who could make the application.  The Traffic Commissioner clearly found it difficult to accept that there was any requirement for the Appellant to apply on her own and she evidently could not understand why it was not a joint application, given the Appellant’s ignorance of the industry and her reliance on her husband’s knowledge and experience.  The Appellant and to a greater extent her husband clearly thought that they were following advice about setting up a haulage business when they made it clear that they would take one step at a time once they had an operator’s licence.  By contrast the Traffic Commissioner was concerned that the Appellant had no business plan and no idea of her likely costings, with the result that when combined with the Appellant’s ignorance of the industry and her replies about the undertakings on the application the Traffic Commissioner had concerns as to whether those undertakings would be fulfilled.  The Traffic Commissioner had a difficult task.  She did her best to give the Appellant an opportunity to make her case, first in her own words and then by asking questions.  The problem was that the Appellant had come expecting that her husband would do all the talking for her, so it may not be surprising that the Traffic Commissioner was obviously unimpressed by what she heard or the way in which the Appellant answered, or looked to her husband for an answer.  Public Inquiries are inquisitorial and Traffic Commissioners are entitled and, indeed, expected to test the case being made by those who come before them.  Having read the transcript with care we accept that a different Traffic Commissioner might have conducted the Public Inquiries in a different way but we are not satisfied that what we have read discloses either actual bias or the appearance of bias on the part of the Traffic Commissioner.  In our view it went no further than a healthy scepticism when testing the merits of this application.

7.           In our view the Traffic Commissioner correctly identified the crucial factor in this case, namely that as the sole applicant for this operator’s licence the Appellant was personally responsible for fulfilling the undertakings and conditions set out on the application form, which would, if the licence had been granted, have become undertakings and conditions on the basis of which the licence was granted.  The Traffic Commissioner questioned whether someone as ignorant of the industry as the Appellant appeared to be could be trusted to fulfil those undertakings and conditions.  She concluded that in this case the answer was that the Appellant could not be trusted to do this because she had no idea what was required to comply with these obligations but would simply rely on her husband and Mr Hudson to carry them out.  In the case of her husband it was recognised that he was already sufficiently busy as the transport manager of another business that he was not permitted to act as the transport manager of the Appellant’s proposed business.  In the case of Mr Hudson he worked for other companies and would only work part-time for the Appellant.  In those circumstances it is difficult to see how either Mr Tattersall or Mr Hudson could fill the gap left by the Appellant’s ignorance.  A further factor is that because of her ignorance the Appellant would not have been in a position to assess whether or not the undertakings and conditions had been properly fulfilled insofar as Mr Tattersall or Mr Hudson endeavoured to comply with them.

8.           In our view on the material before her the Traffic Commissioner correctly concluded that the Appellant had failed to satisfy her that she was of good repute.  In those circumstances she was bound to reject the application.  For these reasons the appeal fails and must be dismissed with immediate effect.

 

 

 

 

 

His Hon. Michael Brodrick, Judge of the Upper Tribunal,

Principal Judge for Traffic Commissioner Appeals, President of the Transport Tribunal.

20 August 2013