[2024] UKUT 425 (AAC)

As we mentioned above, the 1995 Act does not provide a right of appeal against a Traffic Commissioner’s refusal to grant a period of grace. Despite that, there are decisions, such as McKee, in which the Upper Tribunal has felt able to offer an opinion, albeit in quite general terms, on when a period of grace should, or should not, be granted.

While there is no right of appeal against a Commissioner’s refusal to grant a period of grace, cases arise in which the refusal to grant a period of grace is an integral part of the decision to revoke an operator’s licence. In such cases, we consider that the Traffic Commissioner’s obligation to provide sufficient reasons for a licence revocation decision cannot be discharged unless some explanation is given for the refusal to grant a period of grace. We are satisfied that the present case falls into this category. The absence of a transport manager was the only regulatory concern mentioned in the PTR letter and, on the operator’s case, the only impediment to it satisfying the requirement to have a transport manager was time.

In our judgment, the Traffic Commissioner was required, in this case, to give the operator some explanation as to why its request for a period of grace was refused. The circumstances do not speak for themselves or, to put it another way, this cannot be considered to be a case in which a request for a period of grace was bound to fail despite the operator’s request having been made three days after the deadline for providing written representations against revocation. We say that because there was no history of regulatory concern in relation to this operator, Mr Francis’ reason for the late reply to the PTR letter was not obviously implausible and he informed the OTC that he was actively seeking a replacement transport manager.

The requirement for sufficient reasons to be given for a licence revocation decision required, in this case, some explanation as to why the Commissioner refused to grant a period of grace. Its absence was an error on a point of law.

The Traffic Commissioner further erred in law by failing to take account, in his revocation reasons, the absence of any adverse regulatory history in relation to this operator. That had to be a relevant consideration before concluding that this was an operator that deserved to be put out of business. If the actual reason for refusing to grant a period of grace, so that revocation became inevitable, was the operator’s failure to make arrangements so that it was contactable at all times, again the requirement to give sufficient reasons for a revocation decision required some explanation as to why this was a failure that justified revoking the licence held by an operator with no adverse regulatory history.

We find that the Traffic Commissioner’s decision was further flawed by virtue of the PTR letter’s inaccurate, and unduly restrictive, description of an inquiry, given when that letter informed the operator of its right to request a public inquiry. The operator was informed that the purpose of an inquiry was “in order to offer further evidence as to why the licence should not be revoked”. An inquiry is about more than that. Under the 1995 Regulations, a person entitled to attend an inquiry has the general right to “give evidence, call witnesses, to cross examine witnesses and to address the traffic commissioner”. The OTC’s misleadingly restrictive description of the purpose of a public inquiry diluted the protections afforded by Parliament to operators in the revocation decision-making process. If an inquiry is described as no more than opportunity to provide further evidence, that is bound to dissuade some operators from exercising the right. In the present case, the Commissioner’s subsequent decision (subsequent to the PTR letter) was unfair because it was built on a foundation that undermined procedural protections that Parliament has seen fit to build into the licence-revocation process. We do not think it matters that the operator failed to respond to the PTR letter within the 21-day period afforded for making written representations because the PTR letter placed no time limit on making a request for an inquiry. For the above reasons, the Commissioner’s decision involved a further error of law.