[2024] UKUT 421 (AAC)

On 18 July 2024, the OTC received a letter, dated 16 July 2024, written by the operator’s one-time transport manager, Emma Rhodes. The letter stated that Emma Rhodes resigned her position as transport manager on 1 March 2024 and attached a letter of that date which informed the OTC that she had resigned as the operator’s transport manager in order to concentrate on her duties as transport manager for another operator.

The OTC’s case file discloses that they have no record of having received Emma Rhodes’ letter dated 1 March 2024. The operator’s director, Mr Bulpitt, also denies having received that letter. We also note that, according to the OTC case file, there had been no response to correspondence sent to Emma Rhodes, in her capacity as the operator’s transport manager, about a proposed Desk Based Assessment for the operator.

Emma Rhodes’ letter of 16 July 2024 stated that one of the reasons why she resigned as the operator’s transport manager was because “I was not given access to [the operator’s] records”. We note that that reason was absent from the letter dated 1 March 2024.

The OTC wrote to the operator by letter dated 26 July 2024. Having summarised the law about the requirement for an operator to have a transport manager, the letter went on:

“…the traffic commissioner is considering the revocation of your operator’s licence on the grounds detailed above…Under section 27(3) [of the 1995 Act] you are entitled to make written representations to the traffic commissioner. Section 29(1) allows you to request a public inquiry, in order to offer further evidence as to why the licence should not be revoked.

Any written representations must be made to this office by 16/08/2024 for the traffic commissioner’s consideration.

Your representations may include an application to add a replacement transport manager to your licence…

The traffic commissioner may consider granting a period of grace to enable you to find a replacement or whilst your nomination of a new transport manager is being considered, but you need to ask. The traffic commissioner is not obliged to grant a period of grace and is unlikely to do so unless there is evidence that a replacement will be recruited and that the licence requirements will be met in the meantime. An application for a period of grace must be in writing and set out what you are doing to resolve the matter. Guidance to request a period of grace whilst you recruit a new transport manager is attached at Annex B.

Annex B – Guidance for requesting a period of grace to satisfy the transport manager requirements

…There must be tangible evidence that a period of grace will be worthwhile, in other words, there are reasonable prospects that the mandatory requirement will be met before expiry of the specified period of grace .

…Please make any period of grace requests in writing and specify:

why your last transport manager has left and the circumstances.

what measures were taken to prevent loss of a suitable number of transport managers.

the period of time you seek for your period of grace

how you will cover the duties of a transport manager during the period of grace

what action you are taking to meet the transport manager requirement as soon as possible…”

On 15 August 2024, the operator’s director, Mr Bulpitt, wrote to OTC as follows:

“…regarding the loss of Transport Manager Emma Rhodes she did not inform me she had resigned, therefore I request a period of grace, I will have the details of a new Transport Manager by Wednesday 21^st August and will immediately forward.”

On 22 August 2024, the OTC wrote to the operator to inform it that “your response…has been considered by the Traffic Commissioner, but they are unable to grant a period of grace at this stage based on the information provided”. The letter went on to say that further information was required in order for a request for a period of grace to be considered namely information about the activities of the previous transport manager, the period of grace sought, how transport manager duties were to be ‘covered’ during a period of grace, and action being taken to “meet the transport manager requirement”. The letter also requested financial information but without explaining why. The deadline for providing the information sought was 3 September 2024.

On 2 September 2024, the operator’s director emailed the OTC as follows:

“Further to your email of the 22^nd August when you stated you required information by 3^rd September I would like to request an extension until 10^th September, this is due to the fact that I have a new transport manager, Mr Gregory Hicks but he is unable to meet until Saturday 7^th September as he is away until Friday.

It would be greatly appreciated if you would allow this as my whole livelihood relies on this.”

The OTC responded to the director’s email of 2 September 2024 on the following day, 3 September:

“I acknowledge that you are speaking to a replacement potential Transport Manager on 7 September.

However, the Traffic Commissioner still requires a response to the letter that was dated 22 August 2024.

Please provide the response to the questions posed. Within your response you can also add in that you are meeting with your potential replacement Transport Manager on Saturday 7 September, and that you will provide a further update following that meeting.”

The OTC emailed the director again on 4 September 2024:

“A full response is required to all questions posed in our correspondence dated 22 August 2024 by 17:00 hours on 05 September 2024.

Failure to respond by this date will result in revocation of the licence due to a lack of mandatory professional competence and no period of grace having been granted.”

On that same day, 4 September 2024, the director replied to OTC’s email:

“I respectfully request that you please give a period of grace till 10^th September as I work away all week and not back till Saturday when I have a meeting with the new transport manager. I work solely on my own now and without my operators licence have no way of making a living.”

The operator emailed the OTC again on 5 September 2024:

“I have not received a response to my email of yesterday requesting a short period of grace.

Further to your questions in your letter of the 22nd August please see responses below

Emma Rhodes was taken on as Transport Manager as she was newly qualified and wanted experience.

I was unaware that she had stopped acting as Transport Manager, she has now said that she sent a letter, surely something so important should have been sent signed for this has never been received.

As previously stated I have now obtained the services of a fully qualified Transport Manager and have a meeting with him on Saturday 7th September when all necessary paperwork will be registered with yourselves.

As I work away and not back till Saturday I cannot issue bank statements till then.

I am only requesting a very short period of grace and would greatly appreciate this to be allowed.”

Internal OTC notes show that, on 5 September 2024, the Deputy Traffic Commissioner dealing with this case expressed the following opinion:

“I cannot see why bank statement cannot be provided now. They will almost certainly be accessible by phone. That leads me to conclude that the operator is simply trying to defer the inevitable.”

On 6 September 2024, the Traffic Commissioner revoked the operator’s licence. The decision letter read as follows:

“I refer to our original letter dated 26 July 2024, regarding the loss of your Transport Manager.

A letter was forwarded to your company on 22 August 2024 requesting further information be provided with regards to company finance and it is noted an extension to that deadline was requested by your company one day prior to the deadline contained in that letter.

A further email was sent to your company on 4 September 2024, requiring a full response to the questions raised in our earlier letter of 22 August 2024, a deadline was given of 17:00 hours on 5 September, that response was unacceptable to the Traffic Commissioner.

Accordingly, in accordance with the grounds set out in our letter to you upon the loss of your nominated Transport Manager dated 26 July 2024 the Traffic Commissioner will revoke your operator’s licence with effect from 4 October 2024, to allow an orderly run-down of the business and the potential for any new application to be submitted.”