Neutral Citation Number applied for [2010] UKUT 335 (AAC)

Appeal No.  T/2010/36
IN THE UPPER TRIBUNAL		
ADMINISTRATIVE APPEALS CHAMBER
TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of
Sarah Bell Traffic Commissioner for the 
Western Traffic Area Dated 19 April 2010

Before:			Hugh Carlisle QC  	Judge of the Upper Tribunal
				Leslie Milliken	Member of the Upper Tribunal
				Stuart James 	Member of the Upper Tribunal

Appellant:
SUZANNE STONEMAN
T/a KEITH TRAVEL

 
Attendances:
For the Appellant: The Appellant in person, accompanied by her husband

Heard at:	Victory House, 30-34 Kingsway, London, WC2B 6EX
Date of hearing:	12 August 2010
Date of decision:	25 August 2010

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be ALLOWED IN PART with the revocation for loss of financial standing taking effect at 2359 hours on 30 September 2010 but that all other orders be set aside and that the matter be remitted to the Traffic Commissioner for her consideration.

SUBJECT MATTER:  Decision – inadequate reasons

CASES REFERRED TO:  None

REASONS FOR DECISION

1.	This was an appeal from the decision of the Traffic Commissioner for the Western Traffic Area on 19 April 2010 when she revoked the Appellant’s licence under s.17 of the Public Passenger Vehicles Act 1981 and disqualified her for two years under s.28 of the Transport Act 1985.

2.	The factual background appears from the documents and the transcript of the public inquiry and is as follows:
(i)	The Appellant was the holder of a standard international public service vehicle operator’s licence authorising six vehicles.
(ii)	On 29 November 2008 a delayed prohibition notice was issued to one of the Appellant’s vehicles for a leaking suspension unit and a missing speed limiter tamperproof device.  On 26 June 2009 an immediate prohibition notice was issued in respect of a defective direction indicator on a trailer being towed by another of the Appellant’s vehicles.
(iii) 	On 23 July 2009 an unannounced maintenance investigation was carried out by Mr Ian Page, a vehicle examiner, at the Appellant’s operating centre in Reading.  Two vehicles were examined and their condition was found to be unsatisfactory, with an inspection notice and a prohibition notice being issued, for fraying seat belts and loose suspension bolts respectively.  Although drivers were carrying out their daily walk-round checks and completing reports, defects were not being signed off or endorsed as repaired.  The first time pass rate for MOT testing was below the national average.
(iv)	Mrs Reynolds, a traffic examiner, also attended on 23 July 2009 and carried out an investigation into professional competence and tachograph records.  The Appellant admitted that her CPC holder, Mr Nicholas Ayres, had ceased to be so employed in April 2009.  The Appellant immediately arranged for Mr Ayres to return to work for her forthwith.
(v)	Mrs Reynolds examined 70 tachograph charts for the months of May and June 2009 and these revealed that two drivers had committed drivers’ hours’ offences.  30 charts related to Paul Jones and it appeared that he had failed to take sufficient rest on two occasions.  The 38 charts relating to Barry Matson showed that he had committed four similar offences.  The Appellant said in interview that she thought that the drivers had been properly instructed but Mrs Reynolds concluded that the records were not being properly checked and that the drivers had not received sufficient training.  Mrs Reynolds thought that the Appellant was attempting to correct the failings: she noted that Mr and Mrs Stoneman had attended an operator’s awareness course run by the FTA.

(vi)	The Appellant was called-up to a public inquiry by letter dated 10 March 2010.  Repute, professional competence and financial standing were all put in issue, and the powers to revoke and to disqualify were set out.  The reports by Mr Page and Mrs Reynolds were enclosed and the public inquiry was due to take place on 19 April 2010.
(vii)	On 8 April 2010 the Appellant sent in written submissions and stated that she would not be attending the public inquiry.  She indicated that she was considering “handing back [her] licences due to a lot of stress and illness”.  She had been keeping the business going out of respect for her late husband and for the benefit of their children.  She then made submissions about the evidence.  The Appellant telephoned the Traffic Area Office on 14 April 2010 to check that the letter had been received.
(viii)	At the start of the hearing on 19 April 2010 the Traffic Commissioner apologised for delay.  She said that she had adjourned another case.  She had had her staff contact the Appellant to check that she did not want an adjournment and that she wanted the case to be heard in her absence: the Appellant had so indicated on the telephone.  
(ix)	Evidence was then given by Mr Page and Mrs Reynolds as per their reports.  Mr Page said that since his visit “all the defect rectifications are now endorsed” and that “everything’s signed off”.  He thought that there had been an improvement.  Mrs Reynolds reported that the two drivers had gone to court, with one being fined a total of £250 and the other a total of £650, with costs.  Proceedings had also been started against the Appellant but were subsequently withdrawn for lack of evidence.  It seems that there was confusion over whether the Appellant was trading in her own name or as a limited company and the Traffic Commissioner expressed her dissatisfaction with what had occurred: she thought that the Appellant had been “playing the system”.
(x) 	Mr Ayres had also been called-up and he attended the public inquiry.  The Appellant was his aunt and he said that she had told him on the previous Friday that she was not going to attend.  He told the Traffic Commissioner that he had not been the transport manager for the Appellant as a sole trader.  He had agreed to become transport manager if a licence were granted to Keith Travel Limited but that this application had been withdrawn.  There was a detailed discussion about other operating entities within the family context.  During the course of this the Appellant’s conduct regarding the completion of documents was considered.
(xi)	At the end of the evidence it seems that the Traffic Commissioner did not retire.  She said:-	
	“Sorry.  I won’t keep you much longer.  I just know if I go out the back to write my decision then the phone will go and I’ll get distracted.  It will be quicker this way, I promise.”
	She reassured Mr Ayres that he was not going to lose his repute and continued:-
	“1)	Pursuant to adverse findings under Section 17(3)(a), (3)(b), (3)(c) of the 1991 Act (as amended) and Section 17(1) in relation to repute and financial standing the licence is revoked with effect from 30 May 2010 at 23.59, so from midnight on the 30 May she can’t put any wagons on the road or any vehicles on the road.
	“2)	Further she is disqualified from holding an operator’s licence in this or any other traffic area from that date and time, pursuant to Section 28 of the 1985 Act, for a period of two years.

	“My reasons I will state now but should Mrs Stoneman wish to appeal, which is of course her right, then I will of course make sure that the full details are set out in writing.  My reasons for the purposes of today, so that those who have appeared before me know why, they are as follows.
	“It is inevitable that I revoke the licence because no finance has been produced and if there’s no finance for me to consider, I must be satisfied on balance that any finance produced would not meet the requirements.  I can’t come to any other conclusion.”
(xii)	The Traffic Commissioner then referred to the evidence in short form and was critical of the Appellant in numerous respects.  She went on:-	
	“I asked myself the question, is there the possibility of it moving forward compliantly but for Mr Ayres, and the answer is no.  I’ve got nothing to satisfy me of that.  And I have to look at the operator separately, they can’t just gain a positive answer to that question just by having a competent transport manager.  I’m not satisfied that Mrs Stoneman could take an operator’s licence forward legitimately, lawfully and honestly.  As I say in the absence of anything plausible from her here today I don’t see how I can come to any other conclusion.”
	She later said:-	
	“In my judgment Suzanne Stoneman has shown a wholesale disregard for operator licensing road safety, fair competition, my Office, VOSA examiners, she’s basically done as it suits her.  Therefore I revoke the licence, her repute is lost and also obviously there’s no financial standing.”
(xiii)	The Traffic Commissioner then decided that the Appellant should be disqualified for two years: she said that she was “satisfied it is important that Mrs Stoneman has an enforced period out of the system”.

3.	In her notice of appeal the Appellant says that she did not attend the hearing because she had expected the judgment of the Traffic Commissioner to be fair.  Prior to the hearing of the appeal she sent in a detailed submission: essentially her case was that the Traffic Commissioner had “had the wool pulled over her eyes” by Mr Ayres’ evidence, which was unchallenged.  Most points are matters which should have been raised at the hearing.  We explained to the Appellant that she could not now have her evidence taken into account.  It is not the first time that we have had a situation in which an Appellant who has failed to attend a hearing is dissatisfied with the outcome.  However, since we have become seized of the case, we have now to express our view.  

4.	We think that it is incontrovertible that if operators have been given proper notice of a public inquiry, and if they then fail to attend, they cannot later be heard to complain, so long as a properly reasoned decision has been given.  This does not necessarily have to be in writing, although the Tribunal has repeatedly stated that this is desirable if revocation and disqualification are to be ordered, particularly if a finding of loss of repute is made.  But if an oral decision is given, the reasoning must be clearly set out and matters such as burden of proof must be seen to be correct.

5.	We regret to say that we think that the Traffic Commissioner failed on both counts.  First, for those who were not present she promised “full details …… in writing”.  No such document has come into being and we do not approve of an approach on a wait and see basis.  Second, she seems to have had in mind that the burden of proof was on the Appellant, as in an application for a licence rather than for a revocation (see paragraph 2(xii) above).  It may be that she was confusing legal and evidential burdens; but this is why clarification in writing 

	is desirable, in order that misdirections are avoided.  It is self evident that findings of loss of repute and of disqualification are serious; and we have to say that the proprieties must be observed.  

6.	The Appellant told us that a page was missing from her call-up letter and that this is why financial information had not been provided.  We do not accept this since the issue of financial standing is raised in several places and it was obvious what was likely to happen on this aspect if she failed to attend the public inquiry.  Accordingly, we have decided that the revocation ordered for loss of financial standing should stand and that it will take effect at 2359 hours on 30 September 2010.  However, we set aside all other orders and remit the matter to the Traffic Commissioner for her consideration.  If she is minded that the case should proceed we direct that a fresh call-up letter be sent and that the hearing be conducted by a different traffic commissioner.

Hugh Carlisle QC
Judge of the Upper Tribunal
25 August 2010