[2024] UKUT 226 (AAC)

Section 28 of the Act gives a traffic commissioner the discretion to disqualify “any person who was the holder of a licence” from holding or obtaining a licence either indefinitely or for such period as he thinks fit. The power can only be exercised after a direction that the licence is to be revoked under s.26 or s.27 of the Act. Where a direction is made to disqualify under s.28(1) of the Act, s.28(4) provides that the traffic commissioner may also direct that the licence of any company or person for which the operator is a director or holds a controlling interest (for a specified period), such licence will be liable to revocation, suspension or curtailment under s.26.

In this case, the Appellant was disqualified from holding an operator’s licence for ten years under s.28(1) of the Act and it was ordered that if he was to become a director of a company or hold a controlling interest in any company that holds an operator’s licence (or subsidiary or partnership) that operator’s licence would be eligible for revocation, suspension or curtailment under s.26 of the Act. In making his decision, the DTC used the same reasoning as he used in relation to the decision to revoke the Appellant’s licence. In revoking the Appellant’s licence, the DTC was effectively preventing the Appellant from operating at that time. It would have been possible for the Appellant, if he only had his licence revoked, to apply for a fresh licence. He would not be able to operate until that fresh licence was granted, and would be permitted to operate only in accordance with any conditions on that fresh licence. By adding a disqualification “order” to the revocation, the DTC was ensuring that not only would the Appellant have to cease to operate, but that he would not be able to operate for the period of time that the disqualification order persisted.

“Statutory Document No. 10 The Principles of Decision Making and The Concept of Proportionality” provides guidance for traffic commissioners, and Annex 3 set out starting points for consideration in regulatory action. Applying those guidelines, both positive and negative features exits in this case. On the basis of the facts found by the DTC, the case falls squarely into the “severe” starting point due to “deliberate acts that gave the operator a clear commercial advantage” coupled with “persistent operator licence failures with inadequate response” and “previous public enquiry history”. A “severe” response, according to Annex 3, is revocation with detailed consideration of disqualification. This was the outcome in this case:

“… because of the serious nature of [the Appellant’s] conduct he should be disqualified from holding an operator’s licence for a period of 10 years”

[paragraph 60 of the DTC’s decision]

It is a failing on the part of the DTC that he did not give more specific reasons as to why he decided to disqualify the Appellant, but by following the guidance stated above, the DTC would have arrived at the same conclusion i.e., that disqualification should be imposed. He refers to “serious conduct” and there is sufficient detail in the DTC’s decision to understand what that conduct comprises and why he considers it to be serious. It is common practice, in the event of a significant breach of the regulatory framework, for a traffic commissioner to disqualify an operator from holding a licence for a period of time. This is no exception. The suggestion within ground (v), that the DTC was plainly wrong to impose a disqualification in this case, is therefore dismissed.