Upper Tribunal Administrative Appeals Chamber

[2025] UKUT 071 (AAC)

Fecha: 01-Ene-2025

The revocation decisions were disproportionate

The revocation decisions were disproportionate

62.

Mr. Finnegan points out that a question such as repute or fitness must be considered at the date of the traffic commissioner’s decision, although that does not mean that the past is irrelevant: Randolph Transport Limited and Catherine Tottenham [2014] UKUT 460 (AAC), at paragraph 12. He submits that while the desk-based assessment of February 2024 admits of a poor compliance regime, the analysis of the maintenance documents at pp.386 to 389 shows a vastly improved situation, with the worst issue being the two tyres which were below the legal limit and the failure to record the matter in a driver defect book. He recognises that this was a serious matter, but argues that there was an upwards trajectory of compliance which the TC did not adequately consider.

63.

More specifically, Mr. Finnegan says:

63.1.

No criticism was made of the drivers’ hours documentation submitted in preparation for the inquiry.

63.2.

In paragraph 17 of the decision the TC dealt with the positive aspects of the case as follows:

“On the positive side I can see that the operator has made changes in response to some adverse findings made in audits and DVSA investigations but on the other hand there are still areas where significant and worrying failings are evident.”

This is not a fair reflection of the substantial positives and advances made by Mr. Dhillon. Mr. Finnegan mentions specifically that the wheel nuts retorquing was satisfactory and driver’s defect reports were being marked where matters had been rectified.

63.3.

The Company has three vehicles, one of which is a tipper requiring roller brake testing four (Footnote: ²) times a year, which is carried out but perhaps not with the required frequency. The other two are volumetric mixers for which decelerometer brake testing is acceptable. Mr. Finnegan accepts that a temperature check then needs to be carried out and the maintenance provider did not do so, but points out that brake testing was happening, which was itself an improvement and the TC was wrong to identify as problems the facts that partially laden and decelerometer testing was carried out. In particular, the use of decelerometer testing was not a problem in itself.

63.4.

The TC failed to conduct the balancing exercise adequately in that he made no inquiry as to the consequences of revocation, as opposed to the consequences of disqualification (as noted in paragraph 38 above). Mr. Finnegan refers to LA and Z Leonida t/a ETS [2014] UKUT 0423 (Admin). This was in particular an aspect where legal representation might have been helpful.

64.

Mr. Finnegan submits overall that the vehicles had been consistently maintained and points out that the Company and Mr. Dhillon had had little opportunity to hide any problems given the number of audits and investigations. He also says that the Company’s plans for further improvements following the April 2024 audit were not fully explored at the public inquiry. He submits that a proportionate decision would have been curtailment or a short suspension.