MARTIN GORDON SELF trading as MR TAS (Transport : Traffic Commissioner cases) [2014] UKUT 245 (AAC) (21 May 2014)

 

 

 

 

 

Neutral Citation Number: [2014] UKUT 245 (AAC) Appeal No.  T/2014/15

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of

Simon Evans, Deputy Traffic Commissioner for the

North West of England Traffic Area dated 14 January 2014

 

 

 

Before:

Her Honour Judge J Beech, Judge of the Upper Tribunal

Leslie Milliken, Member of the Upper Tribunal

David Rawsthorn, Member of the Upper Tribunal

 

 

Appellant:

 

 

MARTIN GORDON SELF trading as MR TAS

 

 

Attendances:

For the Appellants: The Appellant appearing in person

 

Heard at: Field House, 15-25 Bream’s Buildings, London, EC4A 1DZ

Date of hearing: 13 May 2014

Date of decision:   21 May 2014

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

 

IT IS HEREBY ORDERED that this appeal be DISMISSED

 

 

 

SUBJECT MATTER:-  Professional competence.

 

 

CASES REFERRED TO:-  None

 

 

REASONS FOR DECISION

 

 

1.             This was an appeal from the decision of the Deputy Traffic Commissioner for the North West of England Traffic Area (“DTC”) made on 14 January 2014 when he revoked the operator’s licence under s.27(1)(a) of the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”).

 

2.             The factual background appears from the documents, the transcripts and the Deputy Traffic Commissioner’s written decision and is as follows:

 

(i)            The Appellant was granted a standard national operator’s licence authorising one vehicle in September 2002.  His last nominated transport manager was Geoffrey Parkinson. 

(ii)          In August 2012, the Appellant submitted the licence checklist as part of the continuation of licence process.  The section which required details of the nominated Transport Manager was left blank.  The Office of the Traffic Commissioner (“OTC”) accepted the renewal cheque and the Appellant’s licence was allowed to continue but on 20 November 2012 the OTC sent a letter to the Appellant requiring details of his Transport Manager (that letter is not included in the Tribunal’s appeal bundle).  The OTC did not receive a reply from the Appellant.

(iii)         On 9 March 2013, the OTC wrote to the Appellant again advising him that in the absence of a response to their previous letter, the Appellant’s licence would be revoked on 25 March 2013 unless a response or a request for a public inquiry was received.  The Appellant responded on 15 March 2013.  He maintained that he had responded to the November letter to explain his current position but he did not have a copy of his letter.  He went onto inform the OTC that following the theft and destruction of his authorised vehicle in May 2008, he had not replaced it, using 3.5 tonne vehicles in its place along with the occasional hire of large vehicles when required.  In mid 2012, he had acquired another LGV and as his previous Transport Manager was no longer available, he had taken steps to replace him.  The cost of employing an external CPC holder was excessive and so his daughter (Victoria Self) had agreed to sit the CPC examination.  The Appellant was not in a position himself to sit the examination himself as he was not the most “academic” person.  Miss Self had signed up with Gold Key Training for a course in January 2013 but the course was over-subscribed.  She was due to attend the course in March and sit the test in June 2013.  He accepted that he may have “gone about this the wrong way” and fully understood if the DTC reduced the Appellant’s operator’s licence to an interim licence, giving him the necessary time to meet all licence requirements. 

(iv)         In a further letter dated 25 March 2013, the Appellant described himself as an owner operator/one man band and requested that the DTC step back from revoking his licence as that would result in the Appellant having to re-apply for a new licence, which “in these difficult times would not benefit either of us”.  He again made reference to the DTC reducing his licence to an interim licence.

(v)          On 22 May 2013, the OTC informed the Appellant that the DTC was still proposing to revoke his operator’s licence unless he requested a public inquiry.  The Appellant responded and expressed his disappointment with the DTC’s decision and reminded the OTC that he had made a “sensible proposal” in offering to have his licence reduced to an interim licence whilst his daughter sat the relevant CPC examination which had been cancelled twice thus far.

(vi)         A call up letter dated 30 July 2013 informed the Appellant that a public inquiry would take place on 11 September 2013.  Establishment, good repute, financial standing and professional competence were in issue. 

(vii)        On the date of the public inquiry, the Appellant emailed the OTC stating that he had made a mistake and had noted the public inquiry date as 11 October, rather than 11 September.  As a result, his daughter was unable to accompany him to the hearing.  He confirmed that she had sat her CPC examination on 6 September 2013. 

(viii)      At the public inquiry, the Appellant was advised that his belief that his licence could be reduced to an interim licence was misconceived.  The Appellant informed the DTC (in addition to the contents of his previous letters) that his wife had been his first CPC holder but they had then separated.  Between 2008 and mid 2012, he did not have any cause to use the services of his Transport Manager as he did not have a specified vehicle.  His Transport Manager had left in 2012 and his daughter, who was a Senior Assistant in a Care Home had signed up with a training company who provided the external monitoring of the home’s regulatory compliance.  The company had not served them well.  They kept pushing the dates of the course back and whilst his daughter was very confident about her multiple choice performance in the test, she acknowledged that she had struggled with the case study part of the examination.  The Appellant described himself as not being the most educated of men and transport was his life.  As a result of his daughter’s training, she had already set up systems for dealing with the Appellant’s paperwork.  He asked for a period of grace in order to comply with the professional competence requirements.

(ix)         The DTC took a “charitable view” of the Appellant’s position and adjourned the inquiry principally for the purpose of obtaining confirmation as to the date when Victoria Self’s examination results would be known.  He made it clear to the Appellant that the law required him to revoke his licence if he did not have professional competence.  He also required documentation supporting financial standing and he wished to see the maintenance records (which were duly provided).  The DTC acknowledged that administrative matters were not the Appellant’s strength (the Appellant having accepted that he had literacy difficulties).  The DTC took into account that maintenance was not a concern.

(x)          Mr Self subsequently informed the DTC that the outcome of his daughter’s examination was expected at the end of October 2013.  However, it was not until 16 December 2013 that Miss Self informed the DTC that she had failed.  A further call up letter was sent out on 7 January 2014 informing the Appellant that the hearing would be resumed on 14 January 2014.

(xi)         The Appellant informed the DTC at the resumed hearing that his daughter had been notified of her examination failure in early December 2013.  The cost of employing an external Transport Manager was too much for him although Lee Partington who was one of his daughter’s training providers had offered to stand in.  The Appellant only used the authorised vehicle for 2.7 days a week on average and money was tight.  He balked at paying Mr Partington for eight hours a week.  As a result Mr Partington’s offer had not been taken up.  In any event, the Appellant did not think that his daughter would fail.  She was a very accomplished woman who had been highly successful in her academic training in the past.  Mr Partington continued to be available to be the Appellant’s Transport Manager if the DTC accepted him.  He had not made a formal application to nominate Mr Partington having decided to await the outcome of the resumed hearing. 

(xii)        In his written decision, the DTC found that the Appellant had been without a Transport Manager for at least 18 months which was well beyond the period of grace permitted.  The provisions of s.27(1) of the Act are mandatory where an operator did not have professional competence.  The need for the DTC to uphold the principles of fair competition in haulage held good and the Appellant had been allowed to operate beyond the period of grace, thus gaining an advantage over other operators.  The DTC found that the reasons for the Appellant failing to provide necessary responses to the initial correspondence in November 2012 was because of his admitted administrative failings and there had been a failing at first instance to notify the OTC of the departure of Geoffrey Parkinson.  Despite the fact that the consequences of the failure to nominate a Transport Manager had been made abundantly clear to the Appellant, there had been prevarication and delay on his part.  The Appellant had done nothing in advance of the hearing to nominate Mr Partington and as a result the DTC was forced to conclude that the Appellant was not professionally competent.  The verbal application to nominate Mr Partington was too late.  The Appellant’s licence was revoked with effect from 23.59 on 21 January 2014.

3.             At the hearing of this appeal, the Appellant represented himself and was accompanied by his partner Ms C Murray.  The Appellant began by stating that he had not thought that his daughter would fail her CPC examination.  He thought that it was odd that a maintenance investigation had been arranged for the Friday prior to the resumed hearing on the following Tuesday.  That had then been cancelled without any reasons being given.  The Appellant believed that this was in some way connected with the hearing taking place.  His maintenance was excellent and he felt aggrieved that someone with a restricted licence could continue to operate with maintenance issues being raised and without the need to show professional competence whilst he had an excellent record but had had his licence revoked because of lack of professional competence. 

4.             When he had received the call up letter, it gave only one week’s notice of the hearing.  When the maintenance investigation was cancelled, he then only had two or three working days in order to contact Mr Partington to ask if he continued to offer his services as a Transport Manager (in fact he had at least three days).  Unfortunately, the Appellant could not get hold of him.  The Appellant informed the Tribunal that he had been labouring for some time with some significant personal problems and had only recently been given the “all clear” from the Bobby Moore Centre.  He did not inform the DTC of this.  The Appellant believed that the DTC should have given him another chance, even if only a further twenty four hours in order to nominate a Transport Manager.

5.             When asked whether he had submitted a fresh application for a licence, the Appellant stated that he had but that when he rang the OTC concerning that application to make sure that it was all in order, the member of staff he spoke to advised him to appeal.  That had caused him not to pursue his new application having decided to await the outcome of this appeal.  His ex-wife had now offered to stand in as Transport Manager until his daughter had passed her CPC examination. 

6.             The Appellant is aware that the Tribunal is satisfied that this appeal must fail as he was advised at the conclusion of the hearing, to re-apply for a licence as a matter of urgency.  He has operated an LGV without professional competence since mid 2012.  We fail to see what more the DTC could have done.  We reject the suggestion that he should have given the Appellant a further 24 hours to nominate a Transport Manager against the background of woeful failure on the Appellant’s part to put his house in order.  He was aware in early December 2013 that he must take steps to nominate a Transport Manager immediately once he was aware that his daughter had failed her examination.  Whilst we have sympathy with one vehicle operators who are expected to employ a Transport Manager for a minimum of eight hours a week with the inevitable costs that are involved in that minimum obligation, the fact is, that it is a requirement in law.  In attending the public inquiry hearing without having completed a TM1 form at the very least, meant that it was inevitable that the Appellant’s licence would be revoked. 

 

7.             The Tribunal is concerned that the Appellant was given advice over the telephone by a member of the OTC staff that he should appeal.  We accept that the Appellant was given such advice as he quite candidly informed the Tribunal that despite the letter of revocation informing him of his right, he was unaware of it.  The advice given should at the very least have included further advice that the Appellant should not abandon his application for a new licence.  Had he continued with his application and upon the assumption that his nominated Transport Manager was approved, then the Appellant would, in all likelihood, now have a new operators licence. 

 

8.             This appeal is dismissed.

 

 

 

 

Her Honour Judge J Beech

21 May 2014