Upper Tribunal (Administrative Appeals Chamber), November 26, 2015,  UKUT 668 (AAC)
|Resolution Date:||November 26, 2015|
|Issuing Organization:||Upper Tribunal (Administrative Appeals Chamber)|
|Actores:||Tacsi Gwynedd Ltd (Transport - Traffic Commissioner : Traffic Commissioner cases)|
 UKUT 0668 (AAC)
Appeal No. T/2015/40
IN THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER (TRAFFIC)
ON APPEAL from the DECISION of the Deputy Traffic Commissioner for the Welsh Traffic Area, Mr Miles Dorrington, of 30th June 2015.
Mr E Mitchell, Judge of the Upper Tribunal
Mr M Farmer, Member of the Upper Tribunal
Mr D Rawsthorn, Member of the Upper Tribunal
Tacsi Gwynedd Ltd
For the Appellant: Mr James Backhouse of Backhouse Jones Solicitors
Heard at: Cardiff Civil Justice Centre
Date of hearing: 22 September 2015
Date of decision: 26 November 2015
DECISION OF THE UPPER TRIBUNAL
IT IS HEREBY ORDERED that (a) this appeal be ALLOWED, (b) the Deputy Traffic Commissioner's revocation of the operator's standard licence for the Welsh Traffic Area is itself revoked, (c) the operator must comply with the tachograph and drivers' hours audit and reporting requirements specified in paragraph 100 below.
SUBJECT MATTER:- transport manager; time-limit for rectifying non-compliance with requirements; revocation of PSV licence; termination of PSV licence; operator's discs; good repute; co-operation with traffic commissioner and DVSA; public inquiry evidence in the Welsh language.
CASES REFERRED TO:- Bradley Fold Travel Ltd & Anor v Secretary of State for Transport  EWCA Civ 695,  RTR 13; Subesh & ors v. Secretary of State for the Home Department  EWCA Civ 56,  INLR 417; Priority Freight 2009/225; Assicurzioni Generali SpA v. Arab Insurance Group  EWCA Civ 1642,  1 WLR 577; In the matter of Angloram Trans (UK) Limited  EWCA Civ 998; Crompton (t/a David Crompton Haulage) v Department of Transport North Western Area  EWCA Civ 64
REASONS FOR DECISION
This appeal raises potentially significant issues for licensed public service vehicle operators. The nature of the relationship between a transport manager and operator is addressed, in particular whether a voluntary manager is permitted. The case also considers how a Traffic Commissioner should identify the starting point of a period for rectifying regulatory non-compliance (the `period of grace'). We need to decide whether a Commissioner interpreted the law correctly in deciding that no period of grace could possibly be granted to an operator that had always been non-compliant.
Legal differences between connected features of the regulatory scheme for public service vehicle operators also feature in this case. The distinction between revocation of a licence and its termination, and between a licence and the linked operator's discs, are relevant issues on this appeal.
More generally, this appeal considers aspects of the conduct of public inquiries before Traffic Commissioners. The relationship between co-operation with, and at, the inquiry and good repute is dealt with as is the way in which regulators deal with claims that evidence of regulatory compliance has been stolen. Finally, we give guidance on the approach Commissioners should take to documentary evidence in the Welsh language.
Events leading to the public inquiry
Sequentially, Tacsi Gwynedd Ltd. (``the operator) was granted two licences under the Public Passenger Vehicles Act 1981 (``the 1981 Act''). A restricted licence authorised two vehicles with effect from 30th October 2013 and a standard licence authorised six vehicles with effect from 11th September 2014. The operator's directors are Mr Hugh Edwards (father) and Mr Sion Edwards (son). A significant part of the operator's business is contracted school transport for Gwynedd County Council.
In August 2014, North Wales Police informed the Driver & Vehicle Standards Agency (DVSA) that, in their view, the operator's vehicles had been speeding and so their speed limiters might not be working. A subsequent check found the limiters to be in working order and I am aware of no prosecutions or penalties for speeding offences. The DVSA also received an anonymous allegation that the operator was operating more vehicles than authorised.
On 23rd September 2014 DVSA officials made an unannounced visit to one of the operator's operating centres to seize relevant documentation. The officials were told by Mr Hugh Edwards that he did not know where the paperwork was kept; the officials should speak to Sion Edwards, who was at a different operating centre.
A `production letter' was served on Mr Hugh Edwards. A range of information, mainly related to drivers' hours, had to be produced to the DVSA Caernarfon office by 9 a.m. on 6th October 2014. Signed off by DVSA Vehicle Examiner Nia Lloyd, it stated that ``as an alternative when complying with the above, you may contact me to make arrangements for their collection''.
On 6th October 2014 at 9.25 a.m. DVSA received a `phone call informing them a laptop was stolen from a car at an operating centre. At a subsequent DVSA interview under caution on 10th October 2014, Mr Sion Edwards said all the documentation referred to in the production letter was stolen, manuscript records as well as those held on a laptop.
Mr Sion Edwards attended a further DVSA interview on 30th October 2014. As DVSA requested, he took a specific vehicle (the digital data downloaded from this vehicle seems to have led to some of the allegations referred to below). Then on 20th November 2014 DVSA issued two further letters:
(a) one requested a director attend a further DVSA appointment on 8th December 2014 and he may wish to ``have legal advice present during the interview''. In the event of unexplained non-attendance, the letter said a report would go to a traffic commissioner without the directors' comments; and
(b) a further `production letter' required specified documents to be produced at the DVSA Caernarfon office by 10 a.m. on that same date. We note the letter also said ``as an alternative when complying with the above, you may contact me [Examiner Lloyd] to make arrangements for their collection'' and tachograph download data was to be emailed direct to Examiner Lloyd.
On 8th December 2014, Mr Sion Edwards emailed DVSA. He could not attend the meeting because his legal representative was unavailable and he requested an alternative date. That day, DVSA's emailed response sought Mr Edwards' availability details. At the date of DVSA's public inquiry statement (23rd December 2014), neither availability dates nor the documentation in the production letter had been supplied.
A Deputy Traffic Commissioner for the Welsh Traffic Area decided to hold a public inquiry in the light of ``an investigation carried out by DVSA regarding the company's compliance with tachograph and driver's hours''. According to the public inquiry call-up letters of 29th April 2015, its purpose was to ``investigate these apparent shortcomings'' and Vehicle Examiner Lloyd's report. The call-up letters made clear both the standard and restricted licence would be considered at the inquiry.
The call-up letter for the restricted licence identified ``issues of concern'' and that an explanation was called for as to why the restricted licence ``was still valid'' since the application for a standard licence included an undertaking to surrender the restricted licence. The call-up letter for the standard licence identified these ``issues of concern'':
(a) whether undertakings given on the licence application had been honoured;
(b) that the operator may no longer be of good repute;
(c) that the operator may not have the appropriate financial standing;
(d) that the operator might not meet the requirement of professional competence;
(e) that the operator's transport manager might not be professionally competent and of good repute.
Examiner Lloyd's public inquiry statement included the following allegations:
(a) digital tachograph data was downloaded but not backed up;
(b) digital data, once downloaded, was not analysed;
(c) ``no formal analysis is completed of any drivers hours / digital / time sheets and the failure to produce such documents to the DVSA means that there is no way of scrutinising these documents'';
(d) the transport manager did all his work voluntarily.
Examiner Lloyd's statement also made the allegations concerning record-keeping:
(a) V5 documents (log books) were reported stolen in the 6th October 2014 incident. By 11 November 2014, however, applications for replacements had not been made;
(b) for one 17 seat minibus, digital recording equipment was only installed on 3rd October 2014 and the operator ``locked into the VU on the 27/10/14''. The installer told Examiner Lloyd the driver who brought the vehicle to the installation centre told him the previous owner removed its recording equipment ``as he did not want anyone to see his data''. Neither the employee nor the driver are named or have supplied statements. This raised a suspicion that, during the operator's ownership of the vehicle, recording equipment was removed;
(c) digital download data showed that on multiple occasions during October 2014 a vehicle was driven without insertion of a digital driver card;
(d) digital download data showed multiple working time infringements by drivers during October 2014.
The call-up letters required the directors to submit financial standing evidence to the Commissioner before 19th May 2015. No other evidence was required to be supplied beforehand. The letter also required the Directors to bring certain evidence to the hearing ``to allow you to set out your case at the inquiry''. For drivers' hours, the only listed evidence was ``evidence of your systems for ensuring compliance with the drivers' hours and tachograph legislation''.
The financial evidence was provided by the deadline. Other evidence was also supplied before the public inquiry date including various analyses of tachograph data for October 2014 and subsequent periods; public service vehicle test certificates; the operators own guidance on working hours rules; and...
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