[2023] UKUT 264 (AAC)

The TC reminded himself of the 50% prohibition rate at the roadside between January 2021 and August 2022 and that since the fleet check performed in August 2022, further roadside encounters had resulted in two further immediate prohibitions being issued. Not one vehicle had been clear of defects. He recited some of the serious defects found. The MOT history was “worst still”. He again recited some of the defects found. Since March 2021, only four vehicles out of twenty-two presentations had clear passes. The TC had no difficulty in finding that s.17(3)(aa)(i) of the 1981 Act (the undertaking to keep vehicles fit and serviceable) had been made out.

As for the remaining undertakings set out in s.17(3)(aa), the TC had no hesitation in finding that there had been breaches of the undertakings to keep records for 15 months and for an effective driver defect reporting system. The TC found that PHW had been too busy to fill out the PMI sheets between March and August 2022 and there were a number of the issues identified which should have been obvious to the drivers. The finding by VE Williams that 28% of the PMIs undertaken were overdue meant that the requirements of s.17(3)(a) of the 1981 Act (the statement that vehicles would be inspected at four weekly intervals) was also made out.

Turning to the good repute of both the operator and the transport manager (which the TC described as linked), he determined:

“ 38. .. The root cause of the appalling state of this fleet I find to be gross incompetence within the workshop. I was told that the problem was retaining suitably skilled technicians. That may well be true. There can be few competent technicians who would want the challenge of maintaining such an elderly fleet and being associated with the MOT and roadside performance of it.

39.

Mr Hamlyn-White decided to take on the mantle. His qualifications? A driving licence, a three-day basic inspection course and some time helping the former director in the workshop. That he on numerous occasions dismantled a braking system and replaced seemingly perfectly good parts to try to get more brake efficiency out of a brake that has already locked would be funny if it was not so serious. Brake chambers have been changed on the brake with the higher reading, a compressor pipe is changed to try to improve brake effort, slack adjusters are changed on wheels that have locked. What a waste of time and money. He simply has no underlying mechanical knowledge nor an ability to apply simple GCSE physics. It is the equivalent to attending a three-day first aid course and then seeking to practice as a qualified nurse. It is reckless in the extreme and the outcome is clear to see.

40.

His lack of understanding is further illustrated by his explanation of the immediate prohibition issued to WX03 .. for a defective tyre, having been recut too deep and exposing the cords. He told me that he had previously inspected that tyre in its recut state and the defect wasn’t there; it had only been exposed by further wear. The point is that the tyre had been recut in that the grooves had been made deeper, exposing the cords at the base of the groove. The defect will have been present when Mr Hamlyn-White inspected it. He had clearly failed to identify it. More importantly, as transport manager, he simply did not understand what the defect was and how it had been caused.”

The TC then considered the diesel spillage on 12^th July 2022 which he described as a serious incident and which caused a major road to be closed and 100 metres of roadway to be resurfaced. The TC determined that the incident was one which should have been reported to the DVSA under s.20 of the 1981 Act. The section reads:

“(1)

It shall be the duty of the holder of a PSV operator’s licence, on the happening to any public service vehicle owned by him of any failure or damage of a nature calculated to affect the safety of the occupants of the public service vehicle or to persons using the road, to report the matter as soon as is practicable to the Secretary of State.

As a result of the failure of the company to report the incident to the DVSA, the TC found that the purpose of the legislation had been frustrated. The explanation now given that something on the road had caused a full fuel tank weighing between 100 and 200kgs to be dislodged was “fanciful” and “terribly difficult to accept”. It seemed more likely that the spillage was caused or contributed to, by the fuel tank retaining strap being compromised. It was inevitable that the incident occurred because the tank was not properly secured. “Poor workmanship again”.

The TC further determined that the recruitment of car and van mechanics to maintain a fleet of PSVs seemed to have been done in desperation. It was nonetheless a reckless act on behalf of both operator and transport manager and had led to vehicles operating in a dangerous condition.

The TC listed the positives: since the DVSA intervention, the inspections appeared to be broadly on time and the documentation generally sound; an Irtec course had been attended. The technician would have attended but had very genuine reasons for not being able to do so; as at the date of the hearing, the systems were sound. The TC reminded himself of his decision at the conclusion of the preliminary hearing in April 2021 and concluded that whilst it seemed that a call to a hearing triggered compliance, five months later, one vehicle was encountered with a dry brake fluid reservoir and another failed its MOT for service brake operation, amongst other items. The improvement brought about by the DVSA and TC interventions seemed to be short lived. The TC continued:

“It is unfortunate that Mrs Millman, even after I rose to allow her to take advice from her solicitor, insisted that any authorisation less than sixteen would make the business unviable. By reference to the Senior Traffic Commissioner’s Statutory Document No 10, due in large part to the reckless decision allowing Mr Hamlyn-White to be “fleet engineer” for an ageing 16-vehicle fleet. I find this to be a case in the “severe” category. It requires that I take action that impacts on the operation. I may have been swayed to allow a small, that is, single-figure, authorisation to continue but Mrs Millman’s position is that any incursion in to the sixteen vehicles is fatal to the business..”.

The TC concluded that the historical evidence suggested that he could not trust the company to be compliant in the future (the Priority Freight question). The deficit of competence of those in control, particularly the transport manager suggested that he could not. The evidence since August 2022 suggested that he could not. Good intentions were not enough to run a safe and compliant PSV operation.

The TC asked himself whether it was so bad that he needed to put the operator out of business (the Bryan Haulage question). He concluded that he could not allow a sixteen-vehicle operation to continue. The risk was simply too great. Every other vehicle inspected by the DVSA whilst in service was so dangerous that an immediate prohibition has been issued. Whilst the processes and paperwork had been bolstered since the VE’s intervention, little had changed in on-road performance. “How could it, when the person in charge of the fleet has no relevant qualification and demonstrated in the hearing a lack of even the most basic understanding of vehicle systems and the physics that lies behind them. This is an operation that, for the safety of school children in south Devon and other road users must be brought to an end. The good repute of the operator is lost”.

As for PHW, he had “a high opinion of his own competence” which was misplaced. The TC found him to be “grossly incompetent within the workshop and grossly incompetent as transport manager in allowing those workshop arrangements to continue. His good repute is lost”. He was disqualified as a transport manager for one year and until he re-sat and passed the transport manager certificate of professional competence.

By way of an Appellant’s Notice filed on 23^rd March 2022, the company and PHW appealed. Section 7 of the Notice, contained four identifiable grounds of appeal:

The starting point is that this is a very serious case and it is of note that the TC’s underlying findings about significant maintenance failings and the reckless decision making of the company and the transport manager are not challenged by either the company or PHW. The TC’s conclusion that the case fell within the “severe” category of Annex C of Statutory Document 10 by reason of his findings that the reckless acts of the company and PHW had compromised road safety is not open to challenge and has not been. Having made that assessment, the TC was obliged to consider each of the suggested starting points for that category within Annex C which are: revocation and disqualification; suspension for an extended period of time that would materially affect the transport operation; a significant indefinite curtailment that materially affected the transport operation. It was clear and obvious to him from Mrs Millman’s evidence that neither a lengthy suspension nor a significant curtailment were options available to him even if he deemed either to be potentially appropriate in the circumstances of the case. The use of the word “may” in paragraph 49 is of significance in that regard.

The call up letter addressed to the company set out in clear terms the powers that the TC had available to him in the event of adverse findings (which were not only inevitable but obviously so). The company and PHW should have appreciated that severe regulatory action was inevitable. Moreover, the company was represented by an experienced solicitor in road transport regulation. Even if there was any doubt in the minds of the company and PHW at the outset, that doubt would have been dispelled once the DVSA evidence had been carefully considered. The options available to the TC should therefore have been at the forefront of the minds of both Mrs Millman and PHW and Mrs Millman should have been in a position to answer the questions posed by the TC in the event that the TC found that good repute was retained and that the company could be trusted in the future and ought not be put out of business. The suggestion that the TC put Mrs Millman “on the spot” by asking her about curtailment is misconceived. The TC was required to ask the questions (otherwise there might be a suggestion that the TC had not considered all options) and the questioning along with the time given for her to consult Mr Banks was perfectly proper and reasonable. Moreover, the suggestion that the TC should have chosen a proposed level of vehicle reduction for the company to consider is also misconceived. If the company had considered that a substantial curtailment was survivable, then Mrs Millman should have said so. Indeed, the lack of any evidence of proactivity in the lead up to the hearing was startling. An operator that wished to demonstrate future compliance would have put together a suite of actions and systems to put before the TC. Instead, it was proposed that PHW who lacked the necessary qualifications and competence to be in charge of a workshop should remain so and another, unidentified transport manager should have been nominated in his place. It is not surprising in the circumstances, that the TC found that PHW was incompetent as an engineer and lacked competence as a transport manager. We are satisfied that no competent transport manager would have made the decisions that PHW had made.

But in any event, the complaints made about the TC’s approach to regulatory action presupposes that the Priority Freight and Bryan Haulage questions were going to be answered or should have been answered in favour of the company. The Tribunal is satisfied that it was not plainly wrong for the TC to make the findings that he did. His findings that both the company and PHW had lost their good repute were proportionate and based upon the significant evidence of recklessness that was before the TC. The TC took the positive features into account, including the improvements in the systems but rightly found that those improvements had not resulted in safer vehicles being operated. Against the background of a previous DVSA investigation and a call up letter to a preliminary hearing which had resulted in only short-term improvements in the company’s systems at that stage, he was plainly right to conclude that he could not trust the company to be compliant in the future. Revocation was inevitable. As is clear from the TC’s decision on the company’s application for a stay, he was “firmly of the view that this operation presents a clear and present danger to the public”. This Tribunal agrees. The company is fortunate that a serious accident had not taken place involving one of its dangerous vehicles.

In all the circumstances we are not satisfied that the TC’s decisions were plainly wrong in any respect and neither the facts nor the law applicable in this case should impel the Tribunal to allow this appeal as per the test in Bradley Fold Travel & Peter Wright v Secretary of State for Transport (2010) EWCA Civ.695. The appeal is dismissed.