[2024] UKUT 312 (AAC)

The oral hearing took place on 20 February 2024. The Appellant was present and was represented by Mr McNamee.

Mr McNamee set out in more detail his concerns about the fairness of the PI. While he accepted that the PO was entitled to conduct the PI in the manner which he thought was appropriate, he submitted that the approach adopted by the PO had changed the tenor of the PI from inquisitorial (which it should have been) to adversarial. He asserted, in general terms, that he was impeded in his ability to provide input and information to the PI, and raise his clients concerns which was necessary for a fair hearing and a fair decision. Further, the PO’s approach had the effect of switching the burden of proof from the Appellant to the Department.

More specifically, Mr McNamee submitted that the PO had focused on what had been a light-hearted response by the Appellant and him to discussions about aspects of the evidence and drew adverse inferences from that which questioned the Appellant’s credibility and formed the part of the basis that the Appellant could not be trusted. He noted that the Appellant’s setup was unusual in that the vehicles which he operated were leased from a company in Scotland and were worked in England. All the documentation relating to their maintenance was, accordingly, based in England. In order to facilitate the conduct of the compliance audit the required documentation was download to a ‘pen’ drive which was not accepted by the examiner. The documentation was eventually provided in paper format to the Department. Mr McNamee conceded that it would have been more appropriate for the Appellant to have applied for an operator’s licence in England.

In a similar way, the PO had referred to the Appellant’s behaviour at the PO when he had turned to Mr McNamee during questioning. Mr McNamee referred to a serious accident which had been sustained by the Appellant in his farming work which had impacted on his ability to hear, and this was the reason why he turned to him. Mr McNamee submitted that the PO did not seem to accept that the Appellant’s accident was as significant as had been submitted. Mr McNamee provide us with a copy of a medical report outlining the details of the accident and the impact which it had.

Mr McNamee submitted that there had been failings on the part of the Appellant. He had endeavoured to contextualise the MSIs in the context of the unusual nature of the Appellant’s operation but had been prevented from doing so. He noted that the Department had accepted that there had been improvements. The Appellant had engaged a transport consultant who was now involved in the Appellant’s operations. He has also reserved a place on a transport manager’s course.

Turning to the issue of financial standing, Mr McNamee submitted that the Appellant did satisfy this statutory requirement. He had produced evidence by way of a statutory declaration which had been drafted by the Department but which the PO refused to accept. He submitted that the Appellant was asset rich.

Mr McNamee submitted that the PO’s conclusions that the Appellant had lost his repute as an operator and as a transport manager, that he was disqualified from acting as a transport manager indefinitely, that his operator’s licence was revoked and that disqualification as an operator was necessary for a 12-month period were wholly disproportionate. Curtailment of his operator’s licence or suspension for a short period was a more appropriate outcome.