[2024] UKUT 226 (AAC)

Moving to the second aspect of grounds of appeal (iv) and (v), it is submitted on behalf of the Appellant that no representations were heard or taken into account in relation to the duration of the disqualifications, and that both periods of disqualification were excessive. Section 28(1) of the Act allows for disqualification from holding or obtaining an operator’s licence to be ordered either indefinitely or for such period as the traffic commissioner sees fit. The same duration applies in respect of a disqualification from acting as a transport manager under paragraph 16(2) of Schedule 3 to the Act. Determination of the correct period of disqualification depends upon the facts of each individual case (2014/040&41 C.G. Cargo Ltd and Sukhwinder Singh Sandhu). There should be an assessment of the evidence and submissions as to the effect of any order in setting the appropriate length of the order (2005/426 Kuldev Singh Oakhal t/a Premier Transport Services). Starting points for the period of disqualification are set out in the traffic commissioner’s guidance within “Statutory Document No.10: The Principles of Decision Making and the Concept of Proportionality” at paragraph 108. This states as follows: a mandatory minimum disqualification of 1 year disqualification for a transport manager under paragraph 17 of Schedule 3 to the Act; 1-3 years disqualification for an operator’s first PI; 5-10 years disqualification in serious cases where there are, for example, persistent failures with inadequate responses, or previous PI history; indefinite disqualification in severe cases where an operator deliberately puts life at risk, knowingly operates unsafe vehicles and/or allows drivers to falsify records. In some cases it may be appropriate having indicated a view on the evidence, to seek written representations at the end of a hearing before deciding on whether disqualification (and the period) is appropriate (2005/367 K Jaggard).

In this case, the Appellant was disqualified from holding an operator’s licence for ten years and he was disqualified from acting as a transport manager indefinitely:

“I reached the view that 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.”

[para 60 of the DTC’s decision]

“So far as [the Appellant’s] status as a transport manager is concerned… I have concluded that because of [the Appellant’s] deliberate attempt to circumvent the licensing regime, there is no appropriate rehabilitation measure. [The Appellant’s] disqualification is, therefore, indefinite, subject to [the Appellant’s] right to seek the cancellation or variation of this order in terms of paragraph 17 of Schedule 3.”

[para 62 of the DTC’s decision]

The Appellant submitted at the appeal hearing, that the length of the disqualifications were excessive. We find that the DTC failed to conduct a proper assessment of the overall impact of the orders made in making his decision as to the duration of the disqualifications. There were insufficient reasons given for the choice of both periods of disqualification. There was no balancing exercise between the objectives of the legislation and the significant infringement on the Appellant’s rights. The Appellant stated at the PI that he intended to retire if he was to have his licence revoked, and that comment appears to have been the basis for which the DTC determined the lengthy periods of disqualification. When taken together, the revocation of his operator’s licence, coupled with the lengthy periods of disqualification as both a licence holder and as a transport manager have effectively compelled the Appellant’s retirement, rather than allowing a period of time, while the disqualifications apply, for the Appellant to reflect on this matter and to consider his options going forward. These orders will have had a significant impact on the Appellant financially, both immediately and for the foreseeable future. These are not issues that appear to have concerned the DTC in making his decision as to the length of the disqualifications. Furthermore, it does not appear that representations were sought from the Appellant as to the length of any disqualifications. If they were sought, there is little in the DTC’s decision to suggest that any such representations were taken into account in determining the appropriate length of time. We find this to amount to a procedural irregularity. For these reasons, we find that the duration of both the orders for disqualification are plainly wrong. The second parts of grounds (iv) and (v) are therefore allowed.

Under s.12(2)(b) of the Tribunals Courts and Enforcement Act 2007, the Upper Tribunal is entitled to remit a decision of the traffic commissioner for redetermination or to remake that decision. We find that having sufficient findings of fact before us, and having heard representations at the appeal hearing with respect of the duration of the disqualifications, we are in a position to re-make the orders. Having taken into account all the circumstances presented to us, and balancing the purpose of the legislation against the infringement on the Appellant’s rights as operator, we re-make the orders for disqualification as set out at pages 1 and 2 of this decision.