[2024] UKUT 132 (AAC)

On 15 February 2023, the Office of the Traffic Commissioner (OTC) informed the Appellant operator that it had been brought to the Traffic Commissioner’s attention that the operator had no transport manager specified on its public service vehicle (PSV) operator’s licence. The letter went on to inform the operator that the Commissioner was considering revoking the operator’s licence and set 1 March 2023 as the date by which any representations and request for a public inquiry were to be made. The letter added that the operator’s representations could include a request to add a new transport manager to the operator’s licence.

On 15 February 2023, the operator submitted to the OTC application forms for Mr F Saad and Mr M Evans to be specified on its licence as designated transport managers. On 23 February 2023, the OTC wrote to the operator to inform it that the information supplied for both Mr F Saad and Mr M Evans was incomplete. The operator was given until 9 March 2023 to supply the missing information. Both individuals emailed the OTC in an attempt to supply the missing information.

On 14 March 2023, the OTC wrote to the operator as follows:

“Thanks for your letter two applications [sic] nominating Mr Evans and Mr Saad as transport managers.

The Traffic Commissioner has considered the applications and decided to hold them in abeyance until after the upcoming public inquiry the two gentlemen are linked to.

With the above in mind, the Traffic Commissioner has also decided to grant a Period of Grace to cover the licence until a decision can be made on the nominations of Mr Evans and Mr Saad.

Under section 17(1)(a) of [the Public Passenger Vehicles Act 1981], and in accordance with Regulation (EC) 1071/2009, the Traffic Commissioner has decided to allow your licence to remain in force until 09 April 2023 without a specified replacement transport manager.

…The Traffic Commissioner is obliged to revoke the licence under the provisions of section 17(1) of the Act if you fail to add a suitably qualified transport manager to your licence by the deadline stated above. That transport manager must have been accepted by the Traffic Commissioner as capable of meeting the requirements of section 14ZA.”

On 21 March 2023, both Mr Saad and Mr Evans withdrew their offers to act as the operator’s designated transport managers.

On 29 March 2023, the OTC emailed the operator, noting the recent withdrawal of Mr Saad and Mr Evans, and reminded the operator of the 9 April 2023 deadline set in its letter of 14 March 2023.

On 30 March 2023, the operator submitted a fresh transport manager application to the OTC, in respect of a Mr B Ford.

On 4 April 2023, the OTC wrote to the operator, informing it that the transport manager application in respect of Mr B Ford was incomplete. The section of the OTC application form which asks a prospective transport manager how many hours will be spent on transport manager duties each week had not been completed. The OTC also noted that Mr Ford would, if he became the operator’s designated transport manager, be the designated transport manager for two operators, and had also applied for an operator’s licence in his own right. The OTC sought confirmation that Mr Ford would be able effectively and continuously to manage the transport activities of the operators for whom he intended to be designated transport manager. The deadline for supplying a complete application, and answering the OTC’s queries, was set at 18 April 2023.

On 21 April 2023, the operator’s director, Ms Hughes, jointly with Mr Ford, responded to the OTC’s letter of 4 April and attached a completed transport manager application form. Having explained that she had been away and had only just accessed her emails, Ms Hughes went on state that Mr Ford would devote 20 hours each week to his transport manager duties for the operator, “only visiting his own operating centre a couple of times a week”, and intended to proceed with his own application for an operator’s licence.

On 26 April 2023, the Traffic Commissioner revoked the operator’s standard PSV operator’s licence. No public inquiry was held beforehand. The Commissioner’s decision letter read as follows:

“I refer to our letter dated 15 February 2023 and email dated 29 March 2023 notifying you that the Traffic Commissioner was considering revoking your public service vehicle operator’s licence.

In the absence of a full response to the above the Traffic Commissioner has revoked your operator’s licence with immediate effect for the following reasons:

•

Section 17(1)(a) – No longer professionally competent

The Traffic Commissioner made a finding that you lacked professional competence from 14 February 2023.

The letter dated 15 February 2023 set out the consequences of your failing, to address the loss of your transport manager and properly set out the appropriate options for you to respond.

This was reinforced, at the direction of the Traffic Commissioner, by the email sent to you dated 29 March 2023 which reminded you that the licence will be revoked if you had not completed the appointment of a new transport manager or applied (in advance) for an extension to the Period of Grace by 09 April 2023. The email also warned that any application to extend the Period of Grace will only be considered if evidence of financial standing, as previously requested, had been supplied.

You then responded by submitting an incomplete application to add a new transport manager. The financial evidence was not submitted and there was no application to extend the Period of Grace.

A further letter was sent dated 04 April 2023 highlighting the deficiencies in the application and you were given until 18 April 2023. That date passed without any response.

Response dated 21 April 2023 is noted.”

An internal OTC memorandum of 15 May 2023 revealed that the Traffic Commissioner had not authorised an extension of the operator’s period of grace to 18 April 2023 nor was the Commissioner made aware, when he decided to revoke the operator’s licence, of the operator’s communication of 21 April 2023 (although, we observe, the Commissioner’s decision letter states that the communication was ‘noted’). Insofar as relevant, the memorandum read as follows:

“…I have now been made aware of an email from the operator dated 21 April 2023 enclosing a completed TM/1 application for Mr Ford and a letter setting out his proposed working hours. I was not aware of this email when I made my decision on 24 April 2023. I note however that the email was received 12 days after the period of grace expired. The covering email stated that the director had been away and had not seen the OTC email dated 4 April 2023 previously. That was the email that wrongly suggested the operator had until 18 April 2023 to respond. I note the financial evidence previously requested has not been supplied.

It is suggested above that, “it may have been possible for the request to add Mr Ford as TM to be complete although late and outside the PoG date”. This is not in fact possible as a matter of law.

The legal position is made abundantly clear in SD3, “If a period of grace expires without the mandatory requirement being met then the traffic commissioner is obliged to revoke the operator licence.” citing the UT’s decision in Blackmur T/A IJBTransport: [2021] UKUT 313 (AAC).

…Even if I was to stretch the law to its extremes and treat the effect of the OTC letter dated 4 April 2023 as a de facto extension of the period of grace to 18 April 2023 (even though it was not at my direction as TC), the Operator has clearly failed to complete the appointment of a TM by that date and has not requested an extension.

I have no power to direct the extension of a period of grace in retrospect. Had I been made aware of the email dated 21 April 2023 when I originally considered the matter on 24 April 2023 it would not have materially affected my decision.”