Case No. UKUT-00148-(AAC)

10.The Appellant’s grounds of appeal were set out in its notice of appeal dated 9 December 2021 as follows:‘1. The Traffic Commissioner had requested that the Appellant voluntarily produced maintenance and driver’s hours records for the Public Inquiry hearing. These were produced cooperatively by the Appellant. The Traffic Commissioner proceeded to then undertake her own investigation of those records, presented her own opinion evidence of those records and then determined the facts based on that evidence. As a result this was conducted without the required objectivity/separation of the adjudicator from the witness. 2. Whilst it is accepted that as a specialist regulator a Traffic Commissioner can comment on records, in this case, there was no prior allegation in the call-in letter, or evidence (from a DVSA Officer or other witness to the inquiry) that any undertakings relating to maintenance or driver’s hours systems was breached. The Appellant cooperatively produces these records in response to a ‘requirement’ in the call-in letter, and in effect has to prove their compliance, in areas for which they are not called to public inquiry in the first place. This approach of the Traffic Commissioner is an error of law in that it reverses the burden of proof for an existing licence holder resting on the Commissioner (Muck-it v Merritt and Others [2005] EWCA 1124 and Patricia Bakewell (t/a PP Haulage T/2017/4)). 3. It would also appear that the Traffic Commissioners decision makes no reference to any evidence that the Appellants’ vehicles were not in a fit and serviceable condition or that any records were missing. The Commissioner makes a finding that, due to non-compliance with ‘mere’ guidance issued in the Guide to Maintaining Roadworthiness (in particular on brake testing), that the vehicles are not being kept in an unroadworthy condition. 4. There was no evidence heard at the inquiry, that vehicles when driven on the road did in fact have faulty braking systems, loose wheel nuts or that they were being driven with any safety related defects at all. There were no prohibitions issued to fleet or any MOT test failures. Indeed the objective evidence of the Appellant’s fleet condition would lead to the conclusion that the Appellant’s maintenance of their fleet was satisfactory, for example the operator has a 100% first time pass rate. 5. In fact quite to the contrary there was evidence before the Commissioner that, for example, brakes were operating correctly. For example, when reviewing the brake testing procedure, the Commissioner specifically identifies VRN KX64 TKZ as an example of the brake testing regime. From April 2021, the Commissioner identifies a number of inspections where it is alleged the brakes were not satisfactorily assessed; however on the last PMI where an efficiency test was undertaken, the braking performance was satisfactory. Therefore, in the absence of any repairs to the brakes during that period, it must rationally on the evidence available be the case that the brakes were operating satisfactorily throughout. 6. The same applies to the retorque record cited by the Commissioner. Whilst of course it is desirable for the applicant to follow the guidance issued under “careless torque costs lives”, whereby a retorque is undertaken within either 30 minutes or 50kms, the evidence before the Commissioner at the inquiry that the retorque occurred after 340kms does not also state that there had been any movement of the wheel nuts so as to cause a road safety issue. 7. Following a similar theme, the Commissioner with respect to driver’s hours, suggests that because the Appellant does not undertake proper checks of the drivers previous working hours before engaging them, (the Traffic Commissioner fails to identify what a ‘proper check’ consists of), this provides a real road safety risk. There appears to be no evidence before the Inquiry, that there were any actual breaches of the driver’s hours rules due to this alleged systems error and it is averred that the Appellant’s checks by way of asking orally for confirmation from the driver of their availability, appears to be a sufficient system to mitigate the risk in this case. Operators are entitled to use systems that provide a solution in the context of their operational risk and here there is no evidence that the Appellant’s solution was leading to any risk of offending at all. 8. The Commissioner goes onto a make a finding that the Appellant attempted to mislead the Inquiry in respect of the checking of driver’s availability. This finding appears to be perverse when the Director firstly states checks are made when they start work and when pressed this is done by word of mouth. ‘Word of mouth’, or oral questions and answers are still a check and we cannot see how making such a comment is an attempt to mislead the Inquiry. 9. Finally, the Commissioner makes a finding that the Appellant’s director is not checking defect reports as he was unaware of the defect being crossed through on the documents produced to the Commissioner. It has never been the case that a director of a Transport Company (or a Transport Manager for that matter) is expected to audit and review every single document produced in the course of their operation. To suggest that if the failure to see this crossing out represents a significant failing is simply plainly wrong. There is also no evidence to suggest that the defect being crossed through was a deliberate act to for example hide a defect (presuming this is the allegation being made) as it is not identified. 10. Due to the approach of the Traffic Commissioner in presenting effectively as a witness, her own opinion evidence to herself, as to the maintenance arrangements, in the absence of any DVSA evidence at all, the Appellant and its representative was put in a difficult position, in that the Appellant is entitled under Schedule 4 para 5 of the Goods Vehicles (Licensing of Operators) Regulations 1995, to cross examine any witness evidence presented at the Inquiry. When that evidence is presented by the Commissioner, of course the Commissioner cannot be cross examined. 11. The Appellant’s aver that if the Commissioner had concerns over the contents of either the maintenance records or driver’s hours records to the degree suggested in her decision, the appropriate course of action would be to refer that evidence to the DVSA so that an independent assessment and evidence could be given to the Inquiry, with the Appellant given the opportunity to test that evidence. Failure to do so in this case lead to a plainly wrong outcome and was wrong as a matter of fair procedure. 12. Furthermore, the Commissioner makes findings that the Operator has breached its undertakings to keep vehicles in a fit and serviceable condition and proper records being kept, due to a failure to comply with the guidance given in the Guide to Maintaining Roadworthiness (“GTMR”). 13. Failure to comply with GTMR is not in itself a breach of a licence undertaking. To make a finding that an undertaking has been breached the Commissioner ought to have evidence that vehicles were actually not in a fit and serviceable condition or that records that were legally required to be kept, were not kept. Within her decision, there is no evidence highlighting this. 14. On driver’s hours rules, the undertaking is for the operator to ensure that the drivers hours rules are met. Again, there was no evidence that the driver’s hours rules were actually breached to justify the Traffic Commissioner’s adverse finding on this undertaking. 15.At its highest, the Commissioner is suggesting that due to a failure to comply with the guidance, there is a chance that road safety could be compromised. This finding does not justify a revocation of the licence. 16. It would appear that the Commissioner is shifting the burden of proof onto the Appellant to show proper systems in place to justify the granting of a licence, rather than with an existing licence holder it is incumbent on the Commissioner to assess whether the system that were in place were in fact leading to breaches of the undertakings listed on the licence. 17. It is also averred that the Commissioner failed to undertake a proper balancing exercise to justify the revocation of the licence. The number of positives listed by the Commissioner are numerous with only a small number of negatives. The perceived systems issues could quite easily be resolved through education and the assistance of the Transport Consultant identified by the Commissioner. 18. The Traffic Commissioner has failed to identify the Condition that the Appellant has breached to justify the adverse finding under section 26 (1) (b).19. The Traffic Commissioner has failed to identify the statement of fact which was false or the statement of expectation that was not fulfilled to justify the finding under section 26 (1) (e).20. The Traffic Commissioner has failed to identify which undertakings recorded on the licence have not been fulfilled, or if obliquely identified, has failed to identify the evidence of such a breach of section 26 (1) (f). 21. The Traffic Commissioner has failed to identify the material change in any of the circumstances of the Appellant to justify the finding under section 26 (1) (h). 22. For the above reasons, the Appellants argue that the decision of the Commissioner was perverse and clearly wrong. 23. The Appellant’s invite the Upper Tribunal to quash the Traffic Commissioners decision and make such further order as the Upper Tribunal determines fit.