Neutral Citation Number: [2011] UKUT 25 (AAC)				

Appeal No.  T/2010/76

IN THE UPPER TRIBUNAL		
ADMINISTRATIVE APPEALS CHAMBER
TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of
Tom Macartney, Traffic Commissioner for the 
North Eastern Traffic Area dated 29 September 2010

Before:
Her Honour Judge J Beech, Judge of the Upper Tribunal
David Yeomans, Member of the Upper Tribunal
Leslie Milliken, Member of the Upper Tribunal

Appellant:

PREMIER BEDS LIMITED

Attendances:
For the Appellant: Paul Carless of SPC Transport Consultancy Service

Heard at: Victory House, 30-34 Kingsway, London, WC2B 6EX
Date of hearing: 13 December 2010
Date of decision: 10 January 2011

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED and that the order of revocation shall take effect at 23.59 on 7 February 2011

SUBJECT MATTER:- Restricted licence; breach of undertakings.

CASES REFERRED TO:- none

REASONS FOR DECISION

1.	This was an appeal from the decision of the Traffic Commissioner for the North Eastern Traffic Area made on 29 September 2010 when he revoked the Appellant’s restricted operator’s licence under s26 of the Goods Vehicles (Licensing of Operators) Act 1995 with effect from 23.59 on 29 October 2010.

2.	The factual background appears from the documents and the transcript of the public inquiry and is as follows:

(i)	The Appellant is a manufacturer of beds and mattresses.  Its directors are Nazir Mohammed and Zahir Nazir Mohammed.  The Appellant has held a restricted operator’s licence since 1999 which authorises five 7,500 kgs vehicles; there are two in possession.
(ii)	On 2 January 2008, a maintenance investigation was conducted by VOSA which highlighted the following issues: the preventative maintenance inspection intervals of six weeks were being exceeded (by up to ten weeks); there was no written driver defect reporting system in operation; the condition on the licence that the parking at the operating centre must be free of all private motor vehicles, to allow all authorised vehicles to manoeuvre within the site was being breached; two delayed PG9’s had been issued on 9 July 2007 and 8 October 2007; items included a loose wheel nut; a significantly deteriorated exhaust system which was leaking and a fractured brake disc.
(iii)	On 11 January 2008, the Appellant was asked for its explanation as to the matters identified during the investigation and for assurances that measures would be taken to prevent any similar recurrence and to indicate what those would be.  In response, Mr Zahir Nazir (“Mr Nazir”) wrote stating:

“We have taken measures and allocated someone to check the vehicle inspection sheets and report them so that the vehicles do not exceed their 6 week safety inspection.  We have made drivers defect sheets they are now in operation.  Please find sample attached.  We have made effort to cordon of (sic) our area from our neighbours (oasis takeaway) so that no other vehicle other than Premier Beds Ltd can be parked in our yard.  We are obtaining quotes for a wall or fence to put between oasis and ourselves”.
	
(iv)	On 22 February 2008, the Office of the Traffic Commissioner wrote to the Appellant stating that the Vehicle Examiner who had conducted the maintenance investigation had cause for concern regarding the adverse prohibition history.  Whilst these were for isolated defects, the very presence of these defects demonstrated the importance of driver daily checks and adherence to the safety inspection frequency.  The Appellant was informed that the letter served as a warning that if further adverse reports were received by the Traffic Commissioner, the contents of the letter would be taken into account.
(v)	On 19 May 2008, the Appellant and one of its drivers were convicted of two counts of failing to produce a tachograph chart upon request.   By a letter dated 12 September 2008, the Appellant was required to provide an explanation for these convictions.  No response was received from the Appellant.  
(vi)	Between July 2008 and October 2009, two delayed and one immediate PG9’s were issued in respect of the Appellant’s two vehicles.  Items included a significantly deteriorated exhaust system, a kinked brake hose and direction indicators not functioning correctly.
(vii)	On 26 February 2010, VE Smith undertook a further maintenance investigation.  Prior notice was given and an appointment made.  VE Smith identified the vehicle he wished to examine prior to his attendance.  The outcome of the investigation was marked unsatisfactory and a PG13F notice was issued for preventative maintenance inspection intervals being exceeded (by up to ten weeks) and no written drivers defect system in operation.  The vehicle that should have been presented for inspection was not available; the reason given was that it had developed an unspecified engine defect the day before and was not at the operating centre.  Neither was the second vehicle in possession.  In his public inquiry brief dated 7 July 2010, VE Smith concluded that the shortcoming highlighted by the investigation had been previously identified in 2008 when corrective advice had been given.  The Appellant had not taken reasonable steps to rectify the problems despite assurance that it would.  Mr Nazir who was present during the inspection, did not seem to be interested and also stated that the operator’s licence may be surrendered as the company’s current work load could be accommodated by the use of light vans.  The prohibition history highlighted the shortcomings in the maintenance system giving rise to concern over the Appellant’s ability to maintain its vehicles.  The MOT first time pass history was only 47%.
(viii)	On 16 March 2010, an immediate prohibition was issued to one of the Appellant’s vehicles in respect of the driver’s seat being loose on its mounting which was likely to cause the driver to lose control of the vehicle.  One of two bolts was missing and one bolt was “finger tight”.  The driver informed the vehicle examiner that he had reported the defect two weeks earlier in his daily defect book.
(ix)	By a letter dated 8 April 2010, the Appellant was asked to provide explanations for the deficiencies identified in its maintenance systems and for its prohibition history.  Mr Nazir’s reponse was that the agreed six weekly inspection intervals were now being adhered to; the drivers were now undertaking daily walk round inspections and had been for a number of weeks; he requested information as to what his drivers were required to inspect over and beyond “tyres, lights etc”; the company had encountered difficulties with finding reliable and competent maintenance contractors but were now satisfied with the service provided by its new contractor.  
(x)	On 30 June 2010, one of the Appellant’s drivers was convicted of one offence of exceeding 4.5 hours driving time without taking a required break and three offences of insufficient rest within a 24 hour period.  
(xi)	By a call up letter dated 6 August 2010, the Appellant was notified of the Traffic Commissioner’s decision to hold a public inquiry to consider whether it was appropriate to take regulatory action against the company’s operator’s licence; convictions, prohibitions, conditions and undertakings, statements of intent and material change were all in issue.  
(xii)	The public inquiry took place on 29 September 2010.  VE Smith was present on behalf of VOSA and the Appellant was represented by Mr Nazir who accepted the content of VE Smith’s public inquiry brief.  
(xiii)	Mr Nazir told the Traffic Commissioner that the Appellant had been in business for 19 years and used to employ thirty people but because of a down turn in business, that number had reduced to twenty two.  He described himself as the owner of the business and the business as a “one man band” when it came to maintaining its vehicles.  He was busy looking after the factory, although he tried his best with the vehicles but accepted that “it’s not been up to date”.  He said that matters had improved and inspection records were “more or less up to date” and drivers were conducting walk round checks and their reports were being acted upon.  He had not been aware of some of the requirements of the operator’s licence.  When asked about documents to demonstrate improvements in the Appellant’s systems, Mr Nazir stated that he had not brought any to the hearing, despite the instruction to do so in the call up letter.  He thought that if he simply informed the Traffic Commissioner of the improvements, he could “send someone out and check everything again”.  He said that some inspection sheets were missing because they had been misplaced but he was satisfied that his vehicles were safe because all work that was required to be done was carried out on the vehicles prior to them being returned after the preventative maintenance inspections.  He had a lad in the office maintaining the forward planner.  When the PMI sheets were returned to his office, Mr Nazir did not look at them.  He was too busy with twenty employees and a building to look after.  He could nevertheless say that his vehicles were being well maintained.  In relation to the convictions, he could not recall notifying the Traffic Commissioner’s office of them but he had systems in place in relation to tachographs and drivers hours as he had now appointed a driver with  no LGV licence to check the tachographs.  This employee had been provided with a manual or some literature which Mr Nazir thought he had obtained from VOSA.  He could not say what that literature was.  He denied that he would be better off contracting out his transport requirements as it was a very competitive trade and he was operating on very small margins.  He was trying his best to run his transport properly and in fact there had been a 100% improvement in his vehicle operation.  He could not give an explanation as to why the letter requiring an explanation for the company’s convictions had not been answered and he could not remember the nature of the engine defect of the vehicle that VE Smith had nominated for inspection.  Mr Nazir told the Traffic Commissioner that any form of regulatory action in respect of the operator’s licence would cause his business to close down.
(xiv)	The Traffic Commissioner delivered an oral and written decision.  Having reviewed the evidence, he accepted that it was normally the case that operator’s attending their first public inquiry would be given guidance and advice.  However, the Appellant’s poor track record, inadequate attention to supervision of transport and ignorance of transport systems gave rise to particular concern.  The Traffic Commissioner concluded that the Appellant was incapable of running transport safely and effectively and in those circumstances, it was proportionate that the Appellant should function without a domestic transport fleet, even if that meant putting the company out of business, which Mr Nazir had assured him would be the case.  The Traffic Commissioner made the order which is set out in paragraph 1 above.
3.	At the hearing of this appeal, Paul Carless appeared on behalf of the Appellant and submitted a skeleton argument for which we were grateful.  He accepted that the outcome of the maintenance investigation in February 2010 was “uncomfortably similar” to that of January 2008 and it was clear that Mr Nazir was “woefully unprepared” for the public inquiry despite the clarity of the call up letter.  He was unable to produce any supporting evidence of improvements to the maintenance regime despite having had seven months to rectify matters.  When he was asked about the effect of regulatory action on the operator’s licence, he answered only in the briefest of terms.  For reasons best known to himself, Mr Nazir chose not to have the Appellant represented at the hearing.  Be that as it may, the Traffic Commissioner should have considered whether the operating deficiencies of the Appellant were capable of being remedied.  Mr Nazir should have been asked further questions about the effect of regulatory action and it should have been spelt out to him that his responses to questions on this issue could or would have profound implications.  This was not a case where the Appellant was short of money (despite Mr Nazir’s assertions that the company was operating on the tightest of margins) and he was willing to address the shortcomings of the company’s transport operations.  He should have been given an opportunity to give undertakings with regard to the seeking of professional advice and assistance and as to the continued input of a transport professional to monitor the new systems that would inevitably have been put in place as a result of that assistance.  The Tribunal was told that this was now taking place as a condition of the stay that was granted to the Appellant by the Traffic Commissioner.  Mr Carless submitted that such an approach should have been adopted at the public inquiry.

4.	We disagree with Mr Carless’s submissions.  The Traffic Commissioner was faced with an operator who had clearly failed to act upon the findings of a maintenance investigation in 2008 with the consequence that prohibitions continued to be issued in respect of the Appellant’s two vehicles and convictions were recorded against both the Appellant and its drivers.  It was highly unsatisfactory that the vehicle nominated by the VE Smith for inspection in January 2010 was not present at the operating centre when he attended to conduct his inspection.  No clear explanation as to why that occurred has ever been put forward.  It is evident that at that stage, the undertakings given by the Appellant as to preventative maintenance were not being complied with and there was no evidence before the Traffic Commissioner seven months later that the position had changed.  As for Mr Nazir’s approach to the public inquiry, the call up letter was clear in its terms as to the documents that were required for consideration at the public inquiry and clear advice was given about obtaining representation and advice.  Mr Nazir chose to ignore the contents of the call up letter and was wholly unprepared.  We do not accept that in those circumstances, the Traffic Commissioner should have offered the Appellant an opportunity to give undertakings that a transport professional would be consulted and that all advice given would be followed when he had not sought such advice prior to the hearing.  

5.	It follows that we are not satisfied that the Traffic Commissioner’s decision is either plainly wrong or disproportionate.  Mr Carless submitted that in the event that the Traffic Commissioner’s decision was upheld, that the Tribunal should delay the date of the order of revocation coming into effect for a sufficient period of time to enable the Appellant to make a fresh application and apply for an interim licence.  The basis of this submission was that as the Appellant was now receiving professional advice and assistance from himself and another transport professional who is known to the Traffic Commissioner, that there were no concerns that the Appellant would be operating un-roadworthy vehicles in the intervening period.  We have considered whether this would be an appropriate approach in this case.  However, we are satisfied that the Appellant should not be allowed to continue to  operate vehicles until a thorough review of all of its systems has taken place with the assistance of transport professionals before the Appellant should be permitted to operate vehicles again.  

6.	In the result, this appeal is dismissed the order of revocation will come into effect at 23.59 on 7 February 2011 

Her Honour Judge J Beech
10 January 2011