[2024] UKUT 267 (AAC)

This ground is effectively an argument that the Traffic Commissioner’s decision to disqualify Mr Mboya from acting as a transport manager for three years was disproportionate. The Commissioner’s reasons do not refer to the requirement in paragraph 16(1) of Schedule 3 to the 1995 Act to consider whether a finding that a transport manager is no longer of good repute or professionally competent would constitute a disproportionate response. Since such a finding inevitably leads to a disqualification order under paragraph 16(2), paragraph 16(1) effectively asks a Commissioner to consider whether disqualification would be a disproportionate response.

Despite the Traffic Commissioner not having instructed himself by reference to paragraph 16(1) of Schedule 3 to the 1995 Act, we are satisfied that a three-year period of disqualification was a proportionate response. It was part of a set of regulatory sanctions that included a one-year disqualification from obtaining or holding an operator’s licence. So, the Commissioner was effectively saying that, within one year, Mr Mboya (or Nyanza Transport) could seek an operator’s licence but, if an operator’s licence was sought, Mr Mboya could not be put forward as the designated transport manager for that licence for at least another two years. Someone else would have to be nominated as responsible for managing transport operations. This appears to us to be a proportionate response, in the light of the adverse findings made by the Commissioner. On those findings, Mr Mboya’s shortcomings as a transport manager were significant and went beyond mere disorganisation to include falsification of roller brake testing records. One does not have to be a transport specialist to understand that effective brakes are essential in order to prevent a goods vehicle from posing a very high risk to the safety of other road users. It is not disproportionate to prevent an individual who has sought to undermine such an important aspect of the regulatory regime for goods vehicles from managing transport operations for a period of three years especially when that same individual is only disqualified from obtaining an operator’s licence for one year. In our view, the period of disqualification was in accordance with Annex D to the Senior Traffic Commissioner’s Statutory Document No.10 The Principles of Decision making and the Concept of Proportionality. On the Commissioner’s findings, this was a ‘severe’ case for the purposes of the Statutory Document because it involved “an attempt by the operator to conceal offences or failings”.

Since we are satisfied that a three-year disqualification from acting as a transport manager was not a disproportionate response, ground three fails.