[2024] UKUT 267 (AAC)

Mr Paul Mboya was the sole director of, and designated transport manager for, Nyanza Transport and Training Ltd (“the operator”). The operator held a standard national licence, granted on 22 May 2018 under the Goods Vehicle (Licensing of Operators) Act 1995 (“1995 Act”) which authorised the use of three vehicles and three trailers.

A public inquiry held in April 2022 culminated in the Traffic Commissioner issuing a ‘formal warning’ and securing undertakings from the operator as to inspection frequency, roller brake testing and the carrying out of a systems compliance audit. The audit undertaking provided for the audit report to be supplied to the Office of the Traffic Commissioner (OTC) by 30 November 2022, which was subsequently extended to 31 March 2023. The audit report was provided late (in April 2023 according to Mr Mboya, in August 2023 according to the OTC).

On 15 September 2023, the OTC informed the operator that the Traffic Commissioner would hold a public inquiry to consider the proposed revocation of the operator’s licence. Mr Mboya was also informed that the public inquiry would consider whether he was to be disqualified from acting as a transport manager. The main reasons for the proposed regulatory action were “a further DVSA maintenance investigation that again identified major shortcomings along with potential fraud”, failure to comply with the undertakings given following the 2022 public inquiry, and that, in the words of a DVSA Vehicle Examiner, “the operator’s maintenance paperwork is an absolute shambles”. The apparent fraud was described by the Examiner as follows:

“There are PMI records for the same vehicle/trailer that have been duplicated (with the same identical faults) but with date changes, also date format shown on RBT print outs are inconsistent with correct format/font size and type.”

The public inquiry was held on 16 January 2024. On 24 January 2024, the Traffic Commissioner made the following decisions:

the operator’s licence was revoked pursuant to sections 26(1)(f) and 27(1)(a) and (b) of the 1995 Act;

both the operator and Mr Mboya were ordered disqualified from holding or obtaining an operator’s licence for a period of one year, under section 28 of the 1995 Act;

Mr Mboya was ordered disqualified from acting as a transport manager for a period of three years, under paragraph 16(2) of Schedule 3 to the 1995 Act.

The Traffic Commissioner’s decisions were based on a number of adverse findings the most significant of which were as follows:

“vehicles had not been inspected every eight weeks”. Each vehicle had been inspected only three, or possibly four, times annually and “many inspections had only a road test with no instrumented measurement of brake performance at all” (paragraph 19 of the Commissioner’s reasons);

“Outside MOT, I could find no trace of laden roller brake testing” (paragraph 19);

“The undertakings upon which I relied in 2022 had not just been breached but almost ignored entirely” and “Mr Mboya had been put on notice by the auditor in October 2022 that the undertakings were being breached but he carried on regardless” (paragraph 19);

“Facing a DVSA inspection, Mr Mboya turned to a friend who helped him create entirely false documents to try to hide the lack of inspections and brake tests. They were very amateur documents unlikely to fool anyone but that does not diminish the seriousness of their production, presentation to DVSA and inclusion in the operator’s public inquiry evidence bundle” (paragraph 20);

“The operator failed to comply with the [2022] public inquiry directions to produce compliance documents, a list of which was clearly set out. As a result, I can make no assessment of systems for complying with drivers’ hours or working time rules” (paragraph 21);

the operator’s shortcomings were not “about just ‘paperwork’”. The encounter report showed a prohibition rate of 41% (from 17 encounters) compared to the industry norm of 12.8%. The defects included one tyre so worn that “the base of the tread could not be distinguished” and “repeated failings with respect to load security” (paragraph 22);

the operator had been issued with £700 worth of fixed penalty notices for drivers’ hours offence, and £400 of these were issued to Mr Mboya personally (paragraph 23). Mr Mboya was also issued with a £200 fine as the driver of a vehicle with a bald tyre (paragraph 24);

regarding Mr Mboya’s exercise of his responsibilities as transport manager, the required paperwork was “completely missing”, there were “large gaps in inspection frequencies”, undertakings had been “largely ignored”, and in an attempt to hide breach of undertakings “he has falsified records and failed to cooperate with the tribunal process” (paragraph 24).

The Traffic Commissioner found that the mandatory grounds for revocation in sections 27(1)(a) and (b) of the 1995 Act were made out. In the case of section 27(1)(a), by reference to the licence-holder no longer satisfying the requirement for professional competence and no longer being of good repute. In the case of section 27(1)(b), by reference to the transport manager failing to manage effectively and continuously the operator’s transport business (paragraph 24 of the Commissioner’s reasons). We note the point made in paragraph 25 of the Commissioner’s reasons that “when the transport manager is the sole director, it is difficult to distinguish between the good repute of each”.

The only matter going to Mr Mboya’s credit was that “he openly admitted these failings in public inquiry” but “last minute honesty is not enough to offset any of the negatives”. The Traffic Commissioner had trusted the operator and Mr Mboya following the 2022 public inquiry but “that trust was almost immediately broken and I am entirely unable to trust him now”. Mr Mboya had lost his good repute as a transport manager “and the falsifications mean that an extended period of disqualification from that role is appropriate”. (Paragraph 24 of the Commissioner’s reasons.)

The Traffic Commissioner also found that a period of disqualification was justified in respect of the operator. The Commissioner placed particular weight on the fact that “in twelve years as a Traffic Commissioner, I can count on the fingers of one hand the number of times I have come across falsified roller brake test printouts”. Such “fraudulent activity is rare within this important industry” and supported a disqualification order in respect of the operator (paragraph 26 of the Commissioner’s reasons).

The Traffic Commissioner set one year as the period during which the operator and Mr Mboya would be disqualified from holding or obtaining an operator’s licence under the 1995 Act. But, in relation to Mr Mboya in his capacity a transport manager, the Commissioner directed that he be disqualified from acting as such for three years. The reasons giving for selecting these periods of disqualification were relatively brief: “in setting the period, I do have regard to Mr Mboya’s difficult personal circumstances and I adopt the lower end of the scale” (paragraph 26 of the Commissioner’s reasons). From the case advanced by Mr Mboya before the Commissioner, we think that ‘difficult personal circumstances’ probably referred to Mr Mboya’s illness.