[2025] UKUT 146 (AAC)

The factual background to this appeal appears from the documents, the decision of the DTC and the statement of Mr Peter Fyvie dated 27March 2025. ECL was incorporated in 1978. The company directors are Ms Sinead Kavanagh and Mr Jeff Clarke. The company is a bus and coach operator. It was granted a Public Service Vehicle standard international licence (PM 0000103) with effect from 1 April 1992. It has two operating centres in Edinburgh, with authorisation for a total of 45 vehicles with 34 vehicles in possession (Footnote: ²). On 12 August 2024, Mr Fyvie was added to ECL’s Vehicle Operator Licensing Service (“VOLS”) online account as an administrator. This, Mr Davies informed us, was in anticipation of the departure of ECL’s then designated transport manager (“TM”), Mr Jonathan Walton whom Mr Fyvie was to replace.

On 15 August 2024, Mr Walton used the VOLS online system to remove himself as TM. On 16 August 2024, the Office of the Traffic Commissioner (“OTC” ) wrote by email and by recorded delivery letter to ECL advising the company that it no longer satisfied the requirement of professional competence in the absence of a TM and that the TC was considering revocation of the licence. The operator was given until 30 August 2024 to respond to the letter.

On 16 August 2024, an application was submitted to nominate Mr Fyvie as the replacement TM. On 20 August 2024, Mr Fyvie’s national CPC and international CPC were uploaded onto the VOLS system (Footnote: ³).

On 27 August 2024, the OTC wrote to ECL informing the company that the TM application was incomplete and that the licence remained at risk of revocation until the application was completed and the TC had accepted a proposed transport manager. The company was given until 10 September 2024 to respond with the requested information and informed that failure to do so would result in the TC revoking the licence.

On 28 August 2024, Mr Fyvie sought to complete the TM1. He stated that he would be an internal TM and would work 8 hours a day, Monday to Friday. At the conclusion of completing the form Mr Fyvie sought to submit it through the Gov.uk website. The website asked him to use a QR code to provide a picture of his passport. He attempted to do this but the system would not accept the photograph of the passport as there was too much light reflected. At 11.55 am Mr Fyvie received an email from Gov.UK One Login informing him that he must go to a Post Office to finish proving his identity.

On 31 August 2024, Mr Fyvie went to a Post Office in Dunbar with his passport to verify his identity. He completed that process with a member of the Post Office staff. He understood from the member of the Post Office staff that he had completed the process successfully and that that was the conclusion of the process of verification and that his completed details would be provided to the OTC.

On 2 September 2024, Mr Fyvie received an email from Gov.UK One Login with the subject heading “Sign in to view the result of your identity check”. It stated:-

“Dear PETER FYVIE,

You recently took your passport, which expires on 9 September

2026, to the Post Office at 9:04am on 31 August 2024.

The Post Office branch shown on your customer letter is 17A

High Street, Dunbar, East Lothian EH42 1EN.

To view the result of your identity check, you need to sign in to

your GOV.UK One Login: https://return.account.gov.uk/resume

Then you’ll be sent to the service you need to use.

After you continue, you’ll be able to view the result of your

identity check.”

On 1 October 2024, an OTC case worker reported on the application to the TC. The case worker’s submission narrated that the operator was applying to nominate Mr Fyvie as the new TM but stated that the application was incomplete and “there has been no response from the operator” (Footnote: ⁴). The submission stated:-

“An application nominating Mr Fyvie was received on 16 August 2024. A single request letter was issued on 27 August 2024 requesting the online application was fully completed and declaration signed along with an effective management letter. It looks like the application was filled in online but there is no signed declaration and no effective management letter. (Footnote: ⁵)

The submission narrated Mr Fyvie’s personal details, his CPC qualifications and that he had confirmed that he would work 40 hours a week on TM duties, which met the starting point. It was also noted that he was the nominated TM on another licence. A previous history of an S marked prohibition in July 2024 in respect of the tyres on two vehicles was noted, it stated that the operator had altered and improved tyre management and the prohibition had resulted in no further action.

On 9 October 2024, the case worker made a recommendation to the TC as follows:-

“This submission is to consider a new transport manager following the removal of Mr Jonathan Walton. I note Mr Walton removed himself via Self Service on 15 August 2024. The standard loss of TM letter was sent the day after and an application to add Mr Peter Fyvie received the same day. Unfortunately, the application was incomplete and a single request letter sent. I note no period of grace was sought by the operator, and the caseworker has confirmed no response to our letter has been received. Looking at the users on this licence, I can see three admin users listed. I can also see there has been access to the portal since the letter was sent, and therefore no reason for the lack of response.

The standard process is clear, and therefore I recommend the application to add Mr Fyvie is refused and the licence is passed to National Compliance for revocation.” (Footnote: ⁶)

As the application remained incomplete due to a lack of a failed signed declaration and effective management letter, with no period of grace having been requested, the case worked recommended that the application be refused and the licence revoked.

On 11 October 2024, the DTC refused the application to add Mr Fyvie as TM because the application was incomplete and instructed that the licence be passed to National Compliance for revocation.

On 15 October 2024, the OTC wrote to ECL informing it of the DTC’s decision and that the licence was revoked with effect from 15 October 2024.

On 15 October 2024, Mr Clarke emailed the OTC as follows:-

“This letter has just come to my attention today, to our disbelief. We were of the understanding that the change of transport manager from Jonathan Walton to Peter Fyvie had been successful and that all the required documents and photo identification had (been) lodged. There are currently three qualified transport managers in the ECL team which makes this decision very difficult to accept. Would it be possible to have a conversation with you to discuss this apparent communication error?” (Footnote: ⁷)

On 18 October 2024, the operator applied for a stay. The case worker’s submission to the DTC for his consideration of the application for a stay, noted the following:-

“.. Mr Fyvie had issues with completing his ID check and had mistakenly assumed that the Post Office would send the details to this office. One may expect that an operator and proposed transport manager would have been proactive in explaining the situation to this office and checking to ensure that all the required information had been received, as opposed to assuming that everything was in order. No communication was sent to the operator to confirm that Mr Fyvie had been accepted as the new transport manager, yet this assumption was made on the operator’s behalf.

Nevertheless, the operator does have a nominated transport manager, namely Mr Fyvie, which does negate any road safety concerns, albeit confirmation has still not been received to the queries asked in the unanswered letter dated 27 August 2024. ….

Ultimately, the licence was revoked as the operator failed to respond to correspondence from this office and as a result, the application could not be processed. But given that the operator does have a transport manager in place, this reduces the risk to road safety and as a result, it is recommended that the request for a state is granted.”

On 23 October 2024, the DTC granted a stay of the revocation pending appeal to the Upper Tribunal.