Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 47 (AAC)

Fecha: 01-Ene-2024

The TC’s decision

The TC’s decision

25.

The TC’s decision was made on 13^th February 2023. Having summarised the facts, he identified as the critical area of disagreement between the parties how Mr. Day came to be in possession of Mr. King’s card and whether Mr. King had known about or prompted the use of the card. Paragraphs 20 to 40 of the decision are a detailed discussion of the evidence on the point, leading to the conclusion that Mr. King had knowingly allowed his card to be used by another driver and pressured him into committing drivers’ hours offences.

26.

The TC’s reasons for coming to that conclusion were based on the credibility of Mr. Day's evidence compared with the evidence of Mr. King and Ms. Wallace and in particular:

26.1.

Mr. Day’s co-operation with the DVSA and admission, against his interest, of serious driver offences.

26.2.

Mr. Day’s resolute adherence when cross-examined by Ms. Bell and questioned by the TC to the evidence he had given in his DVSA interview.

26.3.

Mr. King’s acceptance that his systems for monitoring drivers’ hours between July and November 2020 were inadequate and the inconsistency in his evidence as to the reports he ran in December 2020.

26.4.

Mr. King’s failures in co-operation with the DVSA and the reasons he gave for that.

26.5.

The late admission of Mr. King and Ms. Wallace that they sought to mislead the OTC by not declaring Mr. King’s involvement in the Company. The statements they signed on 27^th January 2023 were inaccurate.

26.6.

On the TC’s findings, the only reason why knowledge of Mr. King’s involvement would have jeopardised the new licence was that Mr. King knew full well about the use of his card by Mr. Day when the application was made.

26.7.

Also on the TC’s findings, Mr. King did not dismiss Mr. Day on finding out, in June 2021, about Mr. Day’s use of his card.

27.

The TC’s findings as set out in paragraph 41 were that Mr. King had:

27.1.

Knowingly allowed his digital driver card to be used by another driver.

27.2.

Pressured that driver into breaching drivers’ hours offences.

27.3.

Failed to co-operate with a DVSA investigation into serious allegations.

27.4.

Failed to carry out constant and effective management of transport activities as a transport manager between July and October 2020.

27.5.

Made a false/incomplete application for an operator’s licence to the Office of the Traffic Commissioner.

28.

The TC then turned to the balancing exercise he was required to undertake. The positive features he found to exist were:

28.1.

Maintenance arrangements were mostly satisfactory when the DVSA conducted their maintenance investigation in May 2021.

28.2.

The licence had been held since 2013 and there had been no previous public inquiries.

28.3.

The maintenance and traffic compliance files submitted for consideration up to the date of the inquiry appeared in good order and satisfactory.

28.4.

Mr. King attended a transport manager refresher training course in September 2022.

28.5.

Financial standing was present.

29.

He also took into account the mitigating factors in terms of Mr. King’s serious accident and medical condition at the time the offences first occurred and the fact that they happened over a reasonably condensed period. He nevertheless found that whatever Mr. King’s financial position, his overriding reaction to his incapacity and his contractual commitments was to say, “Just get the job done,” as described by Mr. Day.

30.

The TC’s conclusion was that the matters we have listed in paragraph 27, taken together, were fatal to the continuation of good repute. If Mr. King could not himself act, he had the option to decline work, subcontract or hire in help. In encouraging breaches of drivers’ hours and rest period offences, he and Ms. Wallace had put their commercial interests above the need for public safety on the roads. On Mr. King’s own evidence he allowed large goods vehicles to continue to be used on the licence when he was not in a fit state to provide continuous and effective management of the transport activities, but on the TC’s findings, his culpability was much higher. He therefore determined that Mr. King had lost his good repute as a transport manager.

31.

As respects Mr. King’s repute as an operator, the TC said that good repute was either present or it was not and the essential question was one of trust. He cited Arnold Transport & Sons Limited v. Department of the Environment of Northern Ireland NT/2013/82. He asked himself the Priority Freight question, “How likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime?” and gave the answer that is was highly unlikely, having regard to Mr. King’s conduct leading up to and during the investigation and his own finding that Mr. King had not been truthful at the public inquiry. He then answered the Bryan Haulage question, “Is the conduct such that the operator should be put out of business?” in the affirmative, saying:

“Giving your digital driver card to another in order to falsify tachograph records, making a misleading application for a licence, non-co-operation with a DVSA investigation and false evidence at a public inquiry are the most serious matters of conduct.”

32.

The TC then referred to the Senior Traffic Commissioner’s Statutory Document No. 10 and placed the conduct in the severe category as “Deliberate or reckless acts that compromised road safety and gave the operator a clear commercial advantage and permitted driver offending and any attempt by the operator to conceal offences or failings.” He regarded the appropriate starting point as revocation with detailed consideration of disqualification and determined that suspension or curtailment would not reflect the severity of the case.

33.

He concluded:

33.1.

As a transport manager losing repute, disqualification of Mr. King from managing the transport activities of an undertaking was inevitable under Sch. 3, para. 17 (we think this was a typographical error for 16), of the Goods Vehicles (Licensing of Operators) Act 1995.

33.2.

Grounds for action under the (mandatory) revocation provisions of s.27 of the Act were established in respect of Mr. King’s own licence on the basis of loss of good repute as an operator and loss of professional competence on the finding of loss of good repute as a transport manager.

33.3.

Grounds for action were also established under the (discretionary) revocation provisions of s.26 of the Act on the basis of prohibitions in the last five years and failure to honour the undertaking to observe the rules on drivers’ hours and tachographs and to keep proper records.

33.4.

Ms. Wallace’s failure to make full and honest disclosure in making the application for the Company’s licence was fatal to her good repute as the sole director at the time.

33.5.

Mr. King had lost his repute as an operator, which would render him unfit to be the sole director of the Company.

33.6.

Grounds for action against the Company’s licence were established under s.27 on the basis of loss of good repute and under s.26 on the basis of the false statement made when applying for the licence and a material change, namely, the involvement of Mr. King.

33.7.

It was appropriate and necessary to disqualify Mr. King from holding or obtaining an operator’s licence for a period of 12 months, which would have been much longer but for the positive matters identified and the mitigating circumstances.

33.8.

The primary reason for Ms. Wallace being the sole director of the Company was to facilitate the concealment of Mr. King’s involvement. She did not have the operational experience and knowledge to oversee the compliance regime as a director and should also be disqualified for 12 months.