Neutral Citation Number:  [2014] UKUT 0053 (AAC)

Appeal No.  T/2013/63
IN THE UPPER TRIBUNAL		
ADMINISTRATIVE APPEALS CHAMBER
TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of James Astle DEPUTY TRAFFIC COMMISSIONER for the West Midlands
Dated 17 July 2013

Before:
His Hon Michael Brodrick, 	Judge of the Upper Tribunal
George Inch,			Member of the Upper Tribunal
Michael Farmer,		Member of the Upper Tribunal

Appellants:
BALWANT SINGH UPPAL 
t/a PROFESSIONAL CHAUFFEURING SERVICES 
and 
PCS LIMOS LIMITED

	 
Attendances:
For the Appellant: Mr B. Bowling, (legislation officer for the National Limousine & Chauffeuring Association).

Heard at:	Field House, 15-25 Bream’s Buildings, London, EC4A 1DZ
Date of hearing:	17 January 2014
Date of decision:	3 February 2014

DECISION OF THE UPPER TRIBUNAL
IT IS HEREBY ORDERED that these appeals be ALLOWED.

SUBJECT MATTER:-	  PSV; Procedure after Public Inquiry	

CASES REFERRED TO:-	T/2012/34  Martin Joseph Formby t/a G & G Transport
T/2013/38 Hobart Court Property Management Ltd v John Kent and Valerie Kent

REASONS FOR DECISION

1.	This is an appeal from the decision of the Deputy Traffic Commissioner for the West Midlands to revoke the existing restricted public service vehicle operator’s licence held by Mr Uppal personally, (“the First Appellant”), and to refuse the application by PCS Limos Ltd, (“the Second Appellant”), for a new restricted public service vehicle operators licence.
2.	The factual background to this appeal appears from the documents and the Traffic Commissioner’s decision and is as follows:-
(i)	The First Appellant is the holder of a restricted public service vehicle operator’s licence authorising one limousine, (“the vehicle”).
(ii)	On 9 May 2013 the Office of the Traffic Commissioner, (“OTC”), wrote to the Appellant.  The letter informed him that the Traffic Commissioner was intending to hold a Public Inquiry on 17 June 2013.  It explained that the Traffic Commissioner was considering action, which could result in the Appellant’s licence being revoked or suspended or in a condition attached to the licence being varied.  The grounds on which such action was being considered were (i) that an undertaking or undertakings recorded on the licence had not been fulfilled, (ii) that a condition or conditions of the licence had been contravened and (iii) that the First Appellant no longer satisfied the requirements to be of good repute or appropriate financial standing.  The letter went on to provide a summary of the evidence, which the Traffic Commissioner would consider at the Public Inquiry.
(iii)	The letter of 9 May 2013 went on to state:
“The Traffic Commissioner will require written evidence to be submitted prior to the Inquiry of all journeys undertaken on your licence over the last year, along with written evidence of the advertising of journeys that have taken place.  Copies of the advertisements placed should be submitted along with evidence of when and where they were placed”.
Much later in the letter the First Appellant was told that he should bring to the Public Inquiry: “Any other relevant evidence that you wish to present at the inquiry”.  
(iv)	One of the documents enclosed with the letter of 9 May 2013 was a letter from the Traffic Commissioner who takes the lead on limousines and novelty vehicles.  The letter was directed to those holding PSV operators licences, who were operating vehicles with eight passenger seats or less under their operator’s licence.  It set out the conditions, which must be met for such operation to be lawful.
(v)	On 9 May 2013 the OTC also wrote to the Second Appellant.  The letter informed the Second Appellant that it’s application for a PSV operator’s licence would be considered at the Public Inquiry convened to consider disciplinary action against the First Appellant’s licence.  This letter contained a paragraph in almost identical terms to that quoted at paragraph 2 (iii) above.
(vi)	The Public Inquiry took place on 17 June 2013 before the Deputy Traffic Commissioner.  The First Appellant was present and represented by Mr Bowling, who also represented the Second Appellant.  In the course of an initial summary of the matters that he had to decide the Deputy Traffic Commissioner referred to the requirement in the call-up letter to provide written evidence of the journeys undertaken on the licence.  The Deputy Traffic Commissioner said that he had not seen that evidence.
(vii)	At this point Mr Bowling explained that the First Appellant had been advised that it would be better to operate through a Limited company, (hence the application for a new licence), rather than continue to operate as a sole trader.  He went on to make it clear that if a new licence was granted the licence held by the First Appellant would be surrendered.  He explained that the First Appellant had attempted, without success, to obtain a Private Hire licence but that the rigid view of the Local Authority as to the minimum permitted age of a Private Hire vehicle meant that his application was refused.  Mr Bowling went on to state that the limousine authorised under the PSV operator’s licence was “primarily a wedding tool” but occasionally did work requiring the PSV operator’s licence.  
(viii)	The Deputy Traffic Commissioner then intervened to say: “What I would like to see is some evidence of journeys under the existing licence and details of adverts as indicated in the report.  Is that going to be produced?”  The First Appellant replied: “I’ve actually left the folder at home in the rush but it’s on the website”.  After some inconclusive discussion the Deputy Traffic Commissioner read the passage from the call-up letter quoted at paragraph 2(iii) above.  The Deputy Traffic Commissioner made it clear that this set out what he would need if he was going to be able to proceed with the application.
(ix)	At first it was thought that it would be possible for a member of the First Appellant’s family to bring the file to the hearing.  After a brief adjournment it became clear that that would not be possible.  Mr Bowling asked the Deputy Traffic Commissioner to adjourn the Public Inquiry to another date.  The Deputy Traffic Commissioner responded by saying: “What I am going to do gentlemen is hear anything you want to tell me now or consider any evidence you want to give me now, then I will give Mr Uppal seven days to provide me with any documentary evidence he wants to provide me with”.  The Deputy Traffic Commissioner went on to indicate that he would then issue a written decision.
(x)	The Deputy Traffic Commissioner asked if the First Appellant wanted to give evidence.  Mr Bowling replied that he and his client felt that it would be easier and clearer to deal with the matter by way of written submissions.  The Public Inquiry then came to an end on the basis that any further material had to be submitted within seven days.
(xi)	On 20 June 2013 the First Appellant wrote to the Deputy Traffic Commissioner.  He apologised for not bringing the documents to the Public Inquiry.  He went on: “I now enclose copies of my job sheets for the few jobs that I have done that are not weddings, along with one of the adverts that I placed in the travel agents window”.  He went on to say that: “the companies work consists on 95% of wedding work”.  Though in the next paragraph in the letter moves on to deal with the Second Appellant company.  The letter was accompanied by a large number of documents.
(xii)	The Deputy Traffic Commissioner gave a written decision dated 17 July 2013.  He began by setting out the background information, which we have summarised above.  He accepted that the new material enabled the First Appellant to satisfy the requirement to be of appropriate financial standing and that it confirmed his oral assertion at the Public Inquiry that he had, in fact, informed the OTC of a conviction.
(xiii)	The Deputy Traffic Commissioner then went on to analyse the documents relating to the use of the vehicle authorised under the First Appellant’s licence.  He had documents covering a period between 26 May 2012 and 19 June 2013.  However, not all the information related to the same periods within those dates.  He concluded that during that period the documents showed that the vehicle had been used for a total of 36 hours 53 minutes.  He then found that over a slightly shorter period the vehicle had travelled 4838 miles and that the total value of the fares taken was £3421.96.  He contrasted that figure with sales in 2010 of £16,374 and sales in 2011 of £11,650.
(xiv)	The Deputy Traffic Commissioner then set out the deductions, which he made on the basis of this information.  The first was that: “if the vehicle had been used exclusively in respect of the journeys about which evidence has been provided the average speed of the vehicle over the time covered by the records would have been 130.76 mph”.  From that he concluded that a substantial mileage had been covered on occasions other than those for which evidence had been provided and that it was likely that such use exceeded the use in respect of which evidence was available.  The second was that because sales turnover in both 2011 and 2010 exceeded the income for which evidence had been provided it was reasonable to conclude that significant sales turnover accrued from other use of the vehicle for which evidence had not been provided.  In reaching this conclusion the Deputy Traffic Commissioner considered it reasonable to assume (i) that there had been no significantly greater use of the vehicle in earlier years and (ii) that sales turnover was unlikely to have been significantly different.
(xv)	The Deputy Traffic Commissioner correctly directed himself as to the differing burdens of proof when considering the application on the one hand and the question of disciplinary action on the other.  He then set out the requirements which an operator must meet if a ‘small vehicle’ such as the vehicle specified on the First Appellant’s licence is to be operated as a PSV.
(xvi)	The Deputy Traffic Commissioner refused the application by the Second Appellant stating that he had not been satisfied that the conditions for using a small vehicle under a PSV operator’ licence would be met.  He gave three reasons for reaching that conclusion.  The first was that there was no evidence of the way in which fares had been charged by the First Appellant in respect of the majority of the use of the vehicle during the period in respect of which evidence has been produced.  The second was that there was no evidence of advertising during that period.  The third was that the First Appellant had had a generous opportunity to provide such evidence and had been warned of the need for it in the call-up letter.
(xvii)	The Deputy Traffic Commissioner then considered whether or not to take disciplinary action in respect of the First Appellant’s licence.  He came to the conclusion that it had to be revoked because he was not satisfied that the Appellant would, at all times, comply with the requirements for using a small vehicle under a PSV licence.  His reasons for reaching that conclusion were identical to those set out in the previous sub-paragraph.
(xviii)	On 28 August 2013 both Appellants filed a joint Notice of Appeal.  Permission to appeal out of time was granted.  The main ground advanced by the Appellants was that the Deputy Traffic Commissioner had failed to take into account that the vehicle gained most of its income from weddings, which are exempt matters under the Local Government (Miscellaneous Provisions) Act 1976, and do not require evidence of journey details, separate fares etc.
3.	The First Appellant attended the hearing of the appeal at which the Appellants were both represented by Mr Bowling.  He sought and was granted permission to speak on their behalf.  Mr Bowling recognised at the outset that the First Appellant’s approach to the Public Inquiry had been unsatisfactory, to say the least.  He also recognised that the Deputy Traffic Commissioner had not been provided with the documents and assistance, which he was entitled to expect.  We agree with both propositions.  To put it bluntly and colloquially the First Appellant did his cause and that of the Second Appellant no favours as a result of his casual attitude to a hearing of this importance.
4.	Mr Bowling advanced two main submissions on behalf of the Appellants.  The first was that the Deputy Traffic Commissioner was wrong to proceed on the basis that the vehicle was solely used for PSV work.  The second was that the Deputy Traffic Commissioner was wrong to reach a decision without first giving the Appellants an opportunity to comment on his deductions and conclusions.
5.	This appeal relates to a vehicle having a maximum of 8 passenger seats.  Different considerations apply in the case of vehicles with more than 8 passenger seats.  The way in which a vehicle having a maximum of 8 passenger seats can be used and whether or not any form of licence is required if used for a particular purpose is to be lawful depends on a number of different provisions.  The two main provisions are the Public Passenger Vehicles Act 1981, (“the 1981 Act”) and the Local Government (Miscellaneous Provisions) Act 1976, (“the 1976 Act”).  Both these Acts have been amended in significant respects.
6.	The definition of Public Service Vehicle, (“PSV”) is set out in s. 1 of the 1981 Act.  For the purposes of this appeal the first of the two definitions, (s. 1(1)(a)), can be ignored because it relates to vehicles adapted to carry more than 8 passengers.  The second definition, at s. 1(1)(b) relates to a vehicle not adapted to carry more than 8 passengers which: “is used for carrying passengers for hire or reward at separate fares in the course of a business of carrying passengers”.  That definition is then qualified by s. 1(3), which provides that if the conditions set out in either Part I or Part III of Schedule I to the 1981 Act are fulfilled a vehicle which would otherwise come within the definition at S. 1(1)(b) of the 1981 Act: “shall be treated as not being a public service vehicle unless it is adapted to carry more than eight passengers”.
7.	Two conditions are set out in Part I of Schedule 1.  They are first, that the making of the agreement for the payment of separate fares must not have been initiated by the driver or by the owner of the vehicle or by any person who has made the vehicle available under any agreement or by any person who receives any remuneration in respect of arrangements for the journey.  The second condition is that the journey must be made without previous advertisement to the public of facilities for its being made by passengers to be carried at separate fares.  There is then a qualification, which does not apply in this case.
8.	Four conditions are set out in Part III of Schedule I to the 1981 Act.  They are first, that arrangements for the bringing together of all the passengers for the purpose of making the journey must have been made otherwise than by, or by a person acting on behalf of the holder of the PSV operator’s licence, if there is one, or the driver or owner of the vehicle or any person who has made the vehicle available under any arrangement if no licence is in force.  In addition the passengers must not have been brought together by a person who receives any remuneration in respect of the arrangements.  The second condition is that the journey must be made without previous advertisement to the public of the arrangements.  The third condition is that all passengers must, in the case of a journey to a particular destination, be carried to or to the vicinity of that destination.  The fourth condition is that there shall be no differentiation of fares for the journey on the basis of distance, or time.
9.	Whether or not these conditions are met in any individual case will be a matter of fact and degree to be determined on the basis of the evidence in that case.
10.	Some other journeys are excluded from the definition of a PSV by s. 1(4) of the 1981 Act.  In order for this sub-section to apply the fare or aggregate of the fares paid in respect of the journey must not exceed the amount of the running costs of the vehicle for the journey and the arrangements for the payment of fares must have been made before the journey began.
11.	The question of whether a vehicle, which falls outside the definition of a PSV by reason of S. 1(4) of the 1981 Act, must then be licensed as a Private Hire Vehicle is considered in s. 79 of the 1981 Act.  The answer provided by that section is that even if the vehicle is not a PSV, because it comes within s. 1(4), it is to be treated as one for the purposes of excluding it from regulation as a Private Hire Vehicle.
12.	The next relevant provision is s. 79A of the 1981 Act, as amended.  This relates to small buses, which are defined as “a public service vehicle within paragraph (b) of subsection 1 of section 1 of this Act”.  A small bus provided for hire with the services of a driver for the purpose of carrying passengers otherwise than at separate fares is not to be regarded as a PSV for the purposes of Part II of the 1976 Act.  For the purposes of the present appeal the remainder of S. 79A can be ignored.
13.	The use of a vehicle as a Private Hire Vehicle is governed by Part II of the 1976 Act.  The Appellant applied to have the vehicle licenced as a Private Hire Vehicle but the relevant Local Authority refused the application on the ground that a left-hand drive vehicle is not of a suitable type to be a Private Hire Vehicle, (see the proviso to s. 48(1) of the 1976 Act).  It appears that they also rejected the application because of the age of the vehicle.
14.	For the purposes of this appeal it may not matter that the application for a Private Hire Licence was rejected, provided that the vehicle is excluded from being a PSV.  We say that because Part II of the 1976 Act does not apply: “to a vehicle while it is being used in connection with a wedding”, (see s. 75(1)(cc) of the 1976 Act as amended).
15.	As we understand it the argument for the Appellant involves two propositions.  The first is that when used for weddings the vehicle falls outside the definition of a PSV, because although carrying passengers for hire or reward it is not doing so at separate fares.  The second is that when used for weddings the vehicle is specifically excluded from the requirement to hold a Private Hire Licence.  The significance of these propositions is that if use for weddings falls outside the requirement to hold a PSV operator’s licence the Appellant may have an acceptable explanation for the absence of the documents which the Deputy Traffic Commissioner expected to see and his conclusions may be undermined.  Whether or not this is the case will be a matter of fact and degree to be determined on the evidence.
16.	We should make it clear at this stage that we have no doubt that the Deputy Traffic Commissioner was right to allow a short period of time to enable the First Appellant to produce documents, which he maintained were immediately available.  Given the half-hearted and unhelpful approach which the First Appellant demonstrated at the Public Inquiry and what appears to us to be the failure of Mr Bowling to appreciate the importance of the material requested we accept that the Deputy Traffic Commissioner must have been sorely tempted to deal with both matters there an then.  In our view he was right to resist that temptation.
17.	We have two concerns about the approach taken by the Deputy Traffic Commissioner, though the first may relate back to a time before the matter was his responsibility.  Our first concern relates to the scope of the requirement to produce documents.  Our second concern relates to the Deputy Traffic Commissioner’s approach, after the First Appellant had, belatedly produced the documents.
18.	The request for documents, made in almost identical terms in both call-up letters, required written evidence of: “all journeys undertaken on your licence over the last year”.  In other words the request, which was repeated by the Deputy Traffic Commissioner towards the end of the Public Inquiry, focussed on journeys for which the vehicle required a PSV operator’s licence.  It is true that much later the First Appellant was invited to bring to the inquiry: “any other relevant evidence that you wish to present”.  We have to say that we do not believe that that was sufficient to bring home to the Appellant the need to account for all the use to which the vehicle was put, including journeys for which he claimed that a PSV operator’s licence was not required.  In our view that applied with much greater force by the end of the Public Inquiry because it was made clear, on several occasions, that the vehicle was a “wedding tool” which was only occasionally used as a PSV.  Having read out the relevant passage from the Call-up letters the Deputy Traffic Commissioner said, a little later, that he was going to allow seven days for the First Appellant to: “provide me with any documentary evidence that he wants to provide me with”.  It seems to us that by that stage it should have been apparent that what the First Appellant should have been required to produce was all the material needed to account for the movements of the vehicle over the relevant period, because without such evidence it was unlikely that any clear conclusions could be reached.  In our view the Deputy Traffic Commissioner was plainly wrong not to spell this out.
19.	In any event it was only necessary for the Deputy Traffic Commissioner to consider the terms of the letter that accompanied the documents to see that confining the documents to journeys undertaken on the PSV licence would not enable him to come to any sensible conclusions.  The First Appellant referred in the letter to the few jobs which were not weddings and to the companies work consisting of 95% wedding work.  It is unclear what the First Appellant meant by the word ‘companies’, but it seems to us that the probability is that he is referring to the work he undertook as a sole trader.  We say that because this passage comes in a paragraph which otherwise relates to the First Appellant’s work as a sole trader and because he moved on to deal with the Limited Company in the next paragraph.  In our view what was said in that letter should have prompted the Deputy Traffic Commissioner to require the First Appellant to account for all the journeys made by this vehicle not just those made under the PSV licence.  At the very least the Deputy Traffic Commissioner should have had this explanation in mind when coming to the conclusions which he reached on the basis of the material actually supplied.
20.	Our most serious concern relates to what happened next.  The Deputy Traffic Commissioner proceeded to analyse the documents provided and he reached conclusions adverse to both Appellants as a result of that analysis.  He then went on to found his decision on those conclusions without giving the Appellants an opportunity to challenge or explore his conclusions.  The question is whether it was right to proceed in that way.  We are satisfied that it was not and, indeed, that the Deputy Traffic Commissioner was plainly wrong not to invite the Appellants to comment on, challenge or explore what should have been provisional conclusions.  
21.	In our view it was a simple matter of fairness.  It seems to us that the Appellants ought to have had an opportunity to test the validity of the Deputy Traffic Commissioner’s conclusions.  We say that for various reasons.  First, the calculations appear to have been based on information covering different periods of time with no consideration as to whether or not that might undermine the conclusions reached.  Second, the Deputy Traffic Commissioner appears to have assumed that the vehicle was being used exclusively for PSV journeys whereas the First Appellant’s case has always been that a substantial proportion of the vehicle’s use was for weddings, for which he maintained that neither a PSV licence nor a Private Hire Licence was required.  If the Appellant is right it seems to us that the Deputy Traffic Commissioner’s conclusions are fatally undermined.
22.	In two fairly recent appeals the Tribunal has considered this question, albeit in a different context.  In T/2012/34  Martin Joseph Formby t/a G & G Transport the Deputy Traffic Commissioner asked for, but did not receive, independent evidence of the part played by the Appellant in a conspiracy to supply Class A and Class B drugs.  He then made his own inquiries.  His initial research revealed a media report about the case.  The Tribunal commented that he was correct in disclosing that report to the Appellant and inviting his comments on it.  In fact the Deputy Traffic Commissioner had gone further and said that the Appellant was entitled to have the Public Inquiry re-opened in order that he could give his explanation in person.  The Tribunal went on to say, at paragraph 18 that: “Had these steps not been taken it might have been difficult to avoid the conclusion that the Appeal had to be remitted for re-hearing”.  The Public Inquiry was re-convened and after that hearing the Deputy Traffic Commissioner made a further inquiry, which led him to obtain a transcript of the decision of the Court of Appeal (Criminal Division) at the conclusion of an appeal by a number of the conspirators, including the Appellant.  It appears that having obtained this document the Deputy Traffic Commissioner did not give the Appellant an opportunity to comment.  The Tribunal took the view that it would have been better had he done so, though it went on the question the extent to which the Appellant would have been able to mount a successful challenge, given the material to which the Court of Appeal would have had access.
23.	The second appeal is T/2013/38 Hobart Court Property Management Ltd v John Kent and Valerie Kent, (though to be fair to the Deputy Traffic Commissioner this decision would not have been available to him).  This was also a case where the Traffic Commissioner asked to be provided with information during the Public Inquiry and made his own inquiries afterwards when the information was not forthcoming.  Having been given information that had a significant impact on his decision the Traffic Commissioner did not put it before the parties and ask for their comments.  At paragraph 14 the Tribunal said this: “In our view where the new material goes to an important issue in the Public Inquiry the only fair course is to provide an opportunity to comment and/or challenge any new material that the Traffic Commissioner is intending to take into account”. 
24.	We can see no distinction in principle between cases where a Traffic Commissioner is proposing to come to conclusions on the basis of new material obtained through his own inquiries and cases where he proposes to come to conclusions adverse to an applicant or an operator on the basis of new material which that person has provided.  We have used the word ‘adverse’ in the second half of this proposition to make an important distinction.  Where, as here, an operator is unable at the Public Inquiry to satisfy the Traffic Commissioner of a statutory requirement such as financial standing but does so as a result of new material submitted after the end of the Public Inquiry there is no need to ask for comment and no need to re-convene the Public Inquiry because the finding is favourable to the applicant or operator.  Similarly where, as here, an operator asserts at the Public Inquiry that a conviction was reported and afterwards produces a copy of the letter in which he did so there is no need to ask for comment or to re-convene because the letter has simply confirmed the previously unsupported assertion made at the Public Inquiry.  But where the new material, whether produced by the Appellant or discovered by the Traffic Commissioner, seems likely to play a part in reaching conclusions adverse to the applicant or the operator it is clear in our view that no firm conclusions should be reached without giving the person who may be adversely affected an opportunity to comment on and/or challenge what should, at that stage, be no more than provisional conclusions.  If necessary the Traffic Commissioner must be prepared to offer to re-convene the Public Inquiry.
25.	We are satisfied that that is what should have taken place in this case.  We have no idea what the result of such an exercise would have been and we do not intent to speculate.  On the material available to us we take the view that it would be wrong to attempt to come to our own conclusions.  The only appropriate course is to allow the appeal and remit the matter for re-hearing.  Given the strength of the views expressed by the Deputy Traffic Commissioner we take the view that it would be more appropriate if the matter was re-heard by a different Traffic Commissioner.
26.	The First Appellant should not imagine, for one moment, that his troubles are over and that it will all be ‘plain sailing’ from now on.  It seems to us that he needs to produce a schedule accounting for all the journeys made by the vehicle, backed up by the relevant documents.  It might be sensible to consult with the OTC in order to ensure that the form of the schedule will provide all the information required.  The First Appellant would be well-advised to consider whether his existing documentation will provide all the information required to show that the conditions set out in Schedule I to the 1981 Act will be met.  If necessary the documents should be amended because of the importance of showing that, if the application is granted, the Second Appellant will operate compliantly.  The First Appellant must also understand that any further failure to provide all the documents required is very likely to have fatal consequences both for the application for a new licence and for the continued existence of his own licence.

His Hon. Michael Brodrick, Judge of the Upper Tribunal, 
Principal Judge for Traffic Commissioner Appeals, President of the Transport Tribunal.
3 February 2014