[2025] UKUT 021 (AAC)

On 25 March 2023, the appellant’s transport manager, who had been in post since 2015, unfortunately died, after a short illness. OTC was informed on 28 March 2023.

On 1 April 2023 OTC wrote to the appellant under the heading, “Loss of transport manager”. The opening paragraph stated in bold type that failure to address the concerns raised in the letter would result in the TC revoking the licence; it said that this applied even if the appellant had already submitted an application to nominate a new transport manager which had not yet been granted by the
TC. The letter cited s27(1) and stated that it appeared to the TC that the second requirement in s13A was no longer satisfied (designating a suitable number of Schedule 3 compliant transport managers). It said that the letter was notification under s27(2) that the TC was considering giving a revocation direction under s27(1). It said that the appellant could make written representations to the TC, by 22 April 2023. It said that s29(1) allowed the appellant to request a public inquiry, in order to offer further evidence as to why the licence should not be revoked. It said that the representations could include an application to add a replacement transport manager to the licence. It said that the TC may consider granting a period of grace to enable the appellant to find a replacement or whilst its nomination of a new transport manager was being considered – but the appellant had to ask.

On 18 April 2023 the appellant wrote to OTC asking for a period of grace to allow the appellant to complete its plan over the next six months. That plan involved the appellant’s longstanding general manager, Mr Hornigold, attending a course in May 2023 to qualify as a transport manager; and the appellant seeking to employ a suitable candidate in the next few weeks whilst Mr Hornigold completed the course. Once Mr Hornigold passed the course, he would take over the day to day responsibilities and develop the role through CPD on a continuous basis.

On 15 May 2023 OTC wrote to the appellant giving a period of grace until 12 August 2023.

On 20 July 2023 the appellant wrote to OTC saying that Mr Hornigold had failed part of the course for qualifying as a transport manager. It said that he was booked to re-sit the exam on 2 October 2023. The appellant asked OTC to grant “the full 9 months grace period” to allow him to retake the exam and receive the results. It said that they had been conducting interviews with prospective candidates to fill the position, regardless of Mr Hornigold’s results, and would have someone in place before the end of September.

On 24 July 2023 OTC wrote to the appellant saying that the period of grace would now end on 12 November 2023.

On or around 30 October 2023, the appellant submitted an application to add Mr Bell as a transport manager. OTC wrote to the appellant on 31 October 2023 saying that the application was incomplete (including that Mr Bell had attained his relevant certificate more than 10 years ago).

On 9 November 2023, the appellant submitted an application to add Mr Shilling as transport manager.

On 24 November 2023, OTC wrote to the appellant, referring to its application to nominate Mr Bell and Mr Shilling as transport managers; the letter said that the TC had declined to accept the nominations, as both required additional information/documents. The letter said that the appellant’s extended period of grace had expired on 12 November; it said that “this may be the final deadline the traffic commissioner will grant you to restore your professional competence”. It said that the information had to be provided by 8 December 2023. The letter said that the issue with regard to Mr Bell was that his certificate was more than 10 years old. It said that he needed to provide details of any professional development undertaken, or the appellant needed to offer an undertaking for Mr Bell to attend training within three months. The letter said that the issues with regard to Mr Shilling were (i) the proposed working hours for him were less than OTC recommended (ii) he had other responsibilities which might impact his availability; under this heading, the letter also said that Mr Shilling had ongoing issues due to his involvement with a previous licence; in the following line, it said Mr Shilling was involved with another licence with adverse history (iii) OTC needed more information about the arrangement between the appellant and Mr Shilling. The letter said that what the appellant had to do as regards Mr Shilling was (1) for him to confirm that he would be dedicating a minimum number of hours to reflect the licence’s vehicle authorisation (2) for him to provide a document explaining how he would meet the requirements of the role, to ensure continuous and effective management of the appellant’s and any other licence he was specified on and (3) upload the contract for services signed by Mr Shilling and the appellant.

OTC’s letter of 22 December 2023 stated that the appellant’s response to OTC’s 24 November 2023 letter, dated 6 December 2023, included the required information in support of Mr Shilling’s application (but not Mr Bell’s). One of the documents uploaded to OTC by the appellant on 6 December 2023 was a one-page document signed by Mr Shilling on 4 December 2023, which states, under the heading “Statement of Fact”: “It is known to Traffic Commissioner regarding issues with previous company that I was external transport manager. This being Coast Transport Limited. There was almost no knowledge of what was happening within the business, as the director kept everyone at arm’s length, and decided to deal with issues themselves. As a result, I am now undertaking a transport manager refresher (2 day) from Thursday 7^th – Friday 8^th December, with National Compliance Training. Meeting with Traffic Commissioner on Monday 11^th December.”

An internal OTC memo from 14 November 2023, created by a member of staff, includes that Mr Shilling had ongoing compliance issues, including a pending public inquiry due to be held on 11 December 2023; it was called specifically due to Mr Shilling’s reluctance to attend a ‘PH’ that was set for October 2023; the memo said that good repute was in question in the inquiry on 11 December.

An internal OTC memo from later the same day, created by the OTC decision-maker, includes the observation that the second application, to add Mr Shilling, was more problematic (than the application for Mr Bell), as not only would the TC require additional evidence in relation to how he intends to maintain continuous and effective control, but in addition he was due to attend a transport manager only public inquiry (on 11 December) and his repute remains in question. The internal memo indicates that the decision-maker envisaged a final extension of 14 days to complete the applications in their entirety or nominate a suitable alternative.

An internal OTC memo from 19 December 2023 says, amongst other things, that Mr Shilling apparently chose not to attend the public inquiry on 11 December; and the deputy TC disqualified him to take effect on 15 January 2024.