Neutral Citation Number: [2010] UKUT 362 (AAC)
								Appeal No.  T/2010/42

IN THE UPPER TRIBUNAL		
ADMINISTRATIVE APPEALS CHAMBER
TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of MILES DORRINGTON DEPUTY TRAFFIC COMMISSIONER for the South Eastern & Metropolitan Traffic Area Dated 6 May 2010

Before:

Her Honour Judge J Beech
Judge of the Upper Tribunal

Patricia Steel
Member of the Upper Tribunal

George Inch
Member of the Upper Tribunal

Appellant:
FLOWERS 2000 PRIVATE CO LIMITED
trading as CARGO CARRIERS TRANSPORT

Attendances:

For the Appellant: Chris Harris of Harris Transport & Employment Law

Heard at:	Victory House
Date of hearing:	14 September 2010
Date of decision:	4 October 2010

DECISION OF THE UPPER TRIBUNAL
IT IS HEREBY ORDERED that this appeal be DISMISSED with effect from 23.59 on 27 October 2010

Subject Matter:  Good repute; financial standing; discretionary disqualification; drivers hours & tachographs; professional competence. 

Cases referred to: None

REASONS FOR DECISION

1.	This was an appeal from the decision of the Deputy Traffic Commissioner for the South Eastern and Metropolitan Traffic Area made 6 May 2010 when he revoked the Appellant’s standard national operator’s licence under ss.26(1)(b), (c), (f) & (h) and 27(1)(a) of the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”).

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

(i)	The Appellant, a skip hire business, has held a standard national operator’s licence authorising three vehicles with three in possession since 27 July 2006.  The sole director and Transport Manager is Rufus Mauluka.  

(ii)	On 10 October 2007 a new operator fleet inspection revealed an MOT failure rate on first presentation of 100% and an absence of brake testing records on the preventative maintenance sheets.  The investigation was marked as unsatisfactory.  Following a written explanation being submitted by Mr Mauluka of the circumstances giving rise to the identified failings, no further action was taken.

(iii)	On 16 June 2009, vehicle W601 COV being driven by Mr Mauluka was stopped by TE Huntley for a roadside check.  52 tachographs for the period 3 April 2009 and 15 June 2009 were in Mr Mauluka’s possession.  An analysis of the charts revealed the following:

a)	40 offences of driving in excess of 4.5 hours without taking a qualifying break;
b)	4 offences of failing to take a weekly rest.  Two of the offences involved periods of driving for up to twelve days;
c)	4 offences of driving in excess of 10 hours;
d)	4 offences of driving in excess of 9 hours;
e)	1 offence of driving in excess of 56 hours weekly driving time;
f)	6 offences of exceeding 90 hours accumulated driving time in a fortnight;
g)	51 offences of failing to enter the correct centre field details, including overwriting into traces; 
h)	11 offences of failing to use the mode switch;
i)	5 offences of using a tachograph chart for longer than 24 hours;
j)	544 kilometres of mileage was missing from the charts.  

(iv)	In addition to the above, further investigations revealed that Mr  Mauluka, who was 47 years of age, had not renewed his driving licence authorising him to drive a category C vehicle.  He had therefore been driving the Appellant’s vehicles without the required driving licence for two years.  

(v)	Mr Mauluka was subsequently interviewed concerning the drivers’ hours and tachograph offences and he was then summoned to appear before Hillingdon Magistrates Court to answer eight specimen counts of drivers’ hours infringements and one count of driving without a category C driving licence.  The hearing took place on 12 October 2009 and the offences were proved in Mr Mauluka’s absence; the sentencing hearing was adjourned to 26 October 2009.  

(vi)	On 26 October 2009, Mr Mauluka again failed to appear.  Senior Traffic Examiner Spurling who was in attendance at court, spoke to Mr Mauluka on the telephone.  Mr Mauluka maintained that he had only received the summons’ that day and stated that he wished to have the matter re-opened before the Magistrates Court.  During the course of the telephone conversation, STE Spurling made it clear to Mr Mauluka that he required a category C driving licence in order to drive the Appellant’s skip vehicles.  The hearing was adjourned to 24 November 2009.

(vii)	On 24 November 2009, Mr Mauluka entered guilty pleas to all nine counts and he was fined a total of £1,000 and his licence was endorsed with 6 penalty points.  

(viii)	In the interim, Mr Mauluka took steps to renew his category C driving entitlement.  He underwent a medical examination on 6 November 2009 and he submitted his licence application form on 9 November 2009.  That application was returned marked “not valid” and a fresh application was submitted resulting in Mr Mauluka being granted permission to drive class C vehicles pending determination of his application from 25 November 2009.  He has subsequently regained his class C driving entitlement.

(ix)	 By a call up letter dated 10 November 2009, the Appellant company was notified of a public inquiry to be held on 22 December 2009.  Breach of undertakings, material change, good repute, financial standing and professional competence were all in issue.  In the same letter, Mr Mauluka, in his capacity as Transport Manager, was called to the inquiry for the Deputy Traffic Commissioner to consider his good repute and professional competence.  

(x)	At the hearing of the public inquiry, Mr Mauluka appeared on behalf of the Appellant and on his own behalf; TE Huntley who had prepared a report and STE Spurling represented VOSA.

(xi)	The Deputy Traffic Commissioner dealt with the issue of finance at the outset in camera.  It was clear from the documents provided by Mr Mauluka that he did not have the necessary finance to support an operator’s licence authorising three vehicles.  He therefore agreed to accept a reduction in his vehicle authorisation to two vehicles and undertook to provide to the Deputy Traffic Commissioner, monthly bank statements.

(xii)	In relation to the findings of TE Huntley arising out of the road side check, Mr Mauluka accepted the contents of her report and confirmed that in relation to his driving licence, he was aware from at least 26 October 2009, following the telephone conversation with STE Spurling, that he required a Category C driving entitlement in order to drive his company’s vehicles.  However, he continued to drive on and after that date because he thought that the submission of a renewal application would provide the appropriate cover to drive pending the outcome of his application.  As a result of that admission, the Deputy Traffic Commissioner adjourned the public inquiry to enable TE Huntley to calculate the number of days upon which Mr Mauluka had driven without a Category C driving entitlement between 26 October 2009 and 25 November 2009, the date upon which Mr Mauluka received a cover note permitting him to drive Category C vehicles from the DVLA pending the determination of his application.  The Deputy Traffic Commissioner advised Mr Mauluka to seek legal advice.

(xiii)	The adjourned public inquiry was reconvened on 15 April 2010.  Mr Mauluka again represented the Appellant and appeared on his own behalf; TE Huntley and STE Spurling represented VOSA.  

(xiv)	The Deputy Traffic Commissioner considered finance at the outset in camera.  During the period of the adjournment, Mr Mauluka had submitted monthly bank statements.  However, these did not reveal adequate financial standing even for one vehicle.  The Deputy Traffic Commissioner reserved his decision upon the issue of financial standing and reduced the Appellant’s vehicle authorisation to one with immediate effect.

(xv)	In relation to his failure to apply for a renewal of his Category C driving entitlement, Mr Mauluka accepted the evidence of TE Huntley that his tachographs revealed that he had driven on 18 occasions between 26 October and 25 November 2009.  Mr Mauluka told the Deputy Traffic Commissioner that up until 26 October 2009, he thought that he had continued to hold a Category C driving licence and that his failure to renew his entitlement on his 45th birthday in July 2009 had been a genuine error on his part resulting from his failure to remember the requirement to do so despite being a Transport Manager.  He did however consider that the DVLA was largely responsible for his failure to make the necessary application because he was relying upon the DVLA to issue a reminder.  Once he had been told by STE Spurling of the need to renew his driving entitlement, Mr Mauluka went onto the DVLA website and having read the relevant section, thought that he was entitled to continue driving Category C vehicles provided he submitted a renewal application.  This he did on 9 November 2009 but it was returned marked “not valid” on 13 November 2009.  He then submitted a further application, resulting in the provisional authorisation to drive being granted on 25 November 2009.  

(xvi)	As for the 126 drivers’ hours and tachograph infringements, Mr Mauluka told the Deputy Traffic Commissioner that his business had suffered as a result of the recession in the construction industry.  Then, during the course of the summer, which is the busiest period for the skip hire business, work picked up.  Unfortunately, only one of his three vehicles was roadworthy but he nevertheless grasped the chance to take the work that was offered to him, in order to “come out of the situation”.  The infringements arose because he did not plan his work but neither did he go out of his way to deliberately flout the drivers’ hours rules.  He denied that the tachographs analysed by TE Huntley reflected how Mr Mauluka operated his business throughout the year.  He had made a mistake during the period covered by the tachographs and he now understood the position.  

(xvii)	Mr Mauluka accepted that he had failed to inform the Traffic Commissioner of his convictions dated 24 November 2009 because he had assumed that a public inquiry was inevitable in the circumstances.  He also thought that the summons’ informed him that a public inquiry would take place and he also thought that VOSA would inform the Traffic Commissioner.  Mr Mauluka accepted that he had breached the undertakings recorded on his operator’s licence in relation to the drivers’ hours and tachograph infringements and in his failing to notify the Traffic Commissioner of his convictions.

(xviii)	As a result of his convictions, Mr Mauluka had improved his compliance with the drivers’ hours requirements and had revisited the relevant written materials.  He considered his compliance was now in the region of 99%.  However, as a result of some close questioning by the Deputy Traffic Commissioner, it transpired that Mr Mauluka had not and did not enter any of his work as a Transport Manager or Director on his tachograph charts as “other work” and that TE Huntley’s analysis of his drivers’ hours infringements had not taken this “other work” into account.  He accepted that the position was therefore worse than that set out by TE Huntley and that he had not been exercising continuous and effective responsibility for the Appellant’s transport operation during the period covered by TE Huntley’s investigation.  He further accepted that he was still falling short in his responsibilities as a Transport Manager but he hoped that he could seek further advice and gain further experience and that he wished to renew his undertakings to the Deputy Traffic Commissioner.  He asked the Deputy Traffic Commissioner not to be punitive in the action that he took against the Appellant’s licence so as to allow Mr Mauluka to correct his operations.

(xix)	The Deputy Traffic Commissioner then explored the consequences of regulatory action upon the Appellant’s business.  In answer to the Deputy Traffic Commissioner’s enquiries, Mr Mauluka stated that revocation would close his business because he could not sub-contract work as it would be “stolen”; a delayed revocation so as to enable a new application to be made along with the appointment of a  new Transport Manager would have the same effect; a suspension of the operator’s licence, even for a week would “finish” the business; a curtailment of the licence to one vehicle, even for one week would also close the business but then Mr Mauluka stated that he would take any “life line”.

(xx)	In his written decision dated 6 May 2010, the Deputy Traffic Commissioner determined that the Appellant and Mr Mauluka had lost their good repute as a result of Mr Mauluka driving for a two year period without holding a Class C entitlement to do so; the drivers hours and tachograph infringements identified by TE Huntley; the fact that there was a continuing failure on the part of Mr Mauluka to record all of his duty time on his tachograph charts.  The Deputy Traffic Commissioner was satisfied that the infringements identified by TE Huntley were not isolated breaches of the rules, but rather, were a reflection of how Mr Mauluka undertook his operations during busy periods.  The Deputy Traffic Commissioner found that Mr Mauluka’s driving of Class C vehicles after he had been told by STE Spurling that he must cease pending the restoration of his driving entitlement to be an aggravating feature as Mr Mauluka had made a conscious decision to break the law and that demonstrated a disregard for VOSA, the courts and DVLA.  

(xxi)	The Deputy Traffic Commissioner gave Mr Mauluka credit for having made some improvements in his systems and procedures to ensure compliance but significant weight could not be given to those improvements in the light of Mr Mauluka’s continuing failure to record all of his duty time.  In the light of all of the evidence, the Deputy Traffic Commissioner concluded that Mr Mauluka could not be trusted to be a compliant operator in the future and that his conduct was such that the Appellant company should be put out of business.  The Deputy Traffic Commissioner revoked the licence under ss.26 and 27 of the Act with effect from one month after his decision.  He also found that Mr Mauluka as Transport Manager had lost his good repute upon the same grounds.

(xxii)	 As to financial standing, as the Appellant had failed to demonstrate sufficient funds for one vehicle to be authorised on its licence, the licence was also revoked under s.27 of the Act.  

3.	At the hearing of this appeal, the Appellant was represented by Chris Harris of Harris Transport & Employment and he submitted a skeleton argument for which we were grateful.  His first point was that the Deputy Traffic Commissioner should have delayed the coming into effect of the order of revocation for a longer period than one month so as to allow the Appellant to make a fresh application for a licence which could be processed by the Traffic Area Central Office and to allow for an interim licence to be applied for and granted to ensure the continuity of the Appellant’s business.  To only order only one month’s grace before the licence was terminated was tantamount to financial difficulty and ruin and was contrary to that which had been offered by the Deputy Traffic Commissioner when he had been going through his regulatory powers with Mr Mauluka.  Mr Harris contended that the Deputy Traffic Commissioner had given Mr Mauluka the impression that if revocation were to be ordered, he would be given three months in order to make a new application for a licence.  Whilst the Appellant accepted that regulatory action was inevitable, the revocation of the licence within one month of the Deputy Traffic Commissioner’s decision was disproportionate and wrong.  When the Tribunal queried the basis upon which the Deputy Traffic Commissioner could have given any more than one month in light of the Appellant’s lack of financial standing, Mr Harris submitted that the Deputy Traffic Commissioner should have given the Appellant more time to satisfy him that it was of appropriate financial standing and that he should have advised Mr Mauluka to apply for a restricted licence.

4.	We find that there is nothing in this point.  The Appellant was not of appropriate financial standing to hold a standard national licence and it was not the role of the Deputy Traffic Commissioner to provide legal advice to the Appellant as to how it operated its business and with which type of licence.  The Deputy Traffic Commissioner advised Mr Mauluka to seek legal advice at the end of the first public inquiry but this he did not do.  He also gave the Appellant a further opportunity to demonstrate financial standing by ordering Mr Mauluka to submit monthly bank statements during the adjournment period.  We are satisfied that the Deputy Traffic Commissioner did all that was reasonably required of him in respect of the Appellant’s financial standing and he was in fact, generous in the interpretation of the Appellant’s accounts, thus allowing him to continue operating during the adjournment period.  Turning to the other issues in the case, this was an extremely serious case of drivers’ hours and tachograph infringements that had been committed by Mr Mauluka, the sole director and Transport Manager of the Appellant company.  His infringements demonstrated a disregard for the law and the undertakings that he had given as the director of the Appellant company when applying for its licence.  To the date of the second public inquiry he was continuing to breach the drivers’ hours and tachograph rules by not recording his work as Transport Manager and director on his tachographs.  He continued to drive vehicles when not entitled to do so for two years, such unlawfulness being aggravated by his persistence in driving Class C vehicles when he had been clearly told that he should not do so.  This was a bad case that warranted revocation with immediate effect.  The Deputy Traffic Commissioner’s order allowing one month so that the Appellant could wind up its business, was lenient in the circumstances.  We should add, that the Deputy Traffic Commissioner did not inform Mr Mauluka that revocation would be delayed for three months and neither did he say anything that might have led Mr Mauluka to believe that the Appellant would be given an extended period of grace if revocation were ordered.  

5.	Mr Harris’ next point was that the Deputy Traffic Commissioner should not have taken such a dim view of Mr Mauluka’s driving of Class C vehicles without the appropriate licence entitlement as Mr Mauluka had once held a licence but had simply failed to renew it rather than Mr Mauluka having driven without ever having held such an entitlement.  We indicated to Mr Harris during the course of the appeal hearing that we found this ground to be misconceived against the background that we have set out.

6.	Mr Harris then addressed the Tribunal on the Deputy Traffic Commissioner’s balancing exercise.  It was submitted that he failed to take account of the fact that this was the Appellant’s first public inquiry and that there were no maintenance, overloading or speeding issues and no credit appeared to have been given for Mr Mauluka’s transparent and open manner in giving evidence in response to the Deputy Traffic Commissioner’s “robust questioning”.  In the alternative, the Deputy Traffic Commissioner should have taken alternative regulatory action together with appropriate undertakings such as training in drivers’ hours and tachograph regulations.  This point fails to acknowledge the Appellant’s lack of financial standing.  Further, during the course of the appeal hearing, we indicated that we were satisfied that a short period of disqualification would have been proportionate in this case and that we were satisfied that the failure of the Deputy Traffic Commissioner to make such an order was a reflection of the credit that he gave Mr Mauluka and the Appellant for the matters raised by Mr Harris.  The Deputy Traffic Commissioner’s balancing exercise cannot be faulted.

7.	In the result, the appeal is dismissed with effect from 27 October 2010.  

8.	By way of a footnote, we would like to comment that the Tribunal is aware that the Appellant has submitted a new application for a restricted licence.  Without wishing to “tie the hands” of the Traffic Commissioner in his approach to this application, we anticipate that the application will be considered at a public inquiry so that the issue of whether a restricted licence is the appropriate type of licence for the Appellant’s business can be considered and for the Appellant to demonstrate that it has systems and procedures in place for ensuring that the drivers’ hours and tachograph rules are complied with and that against the background of this case, whether the input of a Transport Manager would be appropriate despite the fact that one is not required for the holding of a restricted licence. 

Her Honour Judge J Beech
4 October 2010